Citation: Metallo v. Economical Insurance Company, 2024 ONLAT 22-001341/AABS

Licence Appeal Tribunal File Number: 22-001341/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Anthony Metallo

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Ardi Deti, Paralegal

For the Respondent:

Kiren Dran, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Anthony Metallo, the applicant, was involved in an automobile accident on December 24, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $3,259.48 for psychological services, proposed by Pilowsky Psychological Prof. Corp in a treatment plan submitted August 30, 2021 and denied September 10, 2021?

iii. Is the applicant entitled to $2,383.84 for chiropractic services, proposed by Eglinton East Health Centre in a treatment plan submitted July 8, 2021 and denied July 15, 2021?

iv. Is the applicant entitled to $1,995.32 for a psychological assessment, proposed by Pilowsky Psychological Prof. Corp in a treatment plan submitted July 6, 2021 and denied July 15, 2021?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s accident-related injuries are outside of the MIG as he suffers from a psychological impairment.

4The applicant is entitled to $1,995.32 for a psychological assessment, proposed by Pilowsky Psychological Prof. Corp in a treatment plan submitted July 6, 2021.

5The applicant is entitled to $3,259.48 for psychological services, proposed by Pilowsky Psychological Prof. Corp in a treatment plan submitted August 30, 2021.

6The applicant is entitled to $2,383.84 for chiropractic services, proposed by Eglinton East Health Centre in a treatment plan submitted July 8, 2021.

7The applicant is entitled to interest on overdue benefits pursuant to s. 51 of the Schedule.

ANALYSIS

Application of the Minor Injury Guideline

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

9An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant submits that should be removed from the MIG as a result of pre-existing back pain and psychological impairments. The respondent disagrees.

11I find that the applicant has established that he has a psychological impairment that removes him from the MIG.

12The applicant underwent an assessment with Dr. Judith Pilowsky, psychologist, on July 26, 2021. Dr. Pilowsky diagnosed the applicant with “Posttraumatic Stress Disorder with avoidance to driving and as a passenger”. She administered a number of tests, and found that his score on the PCL-5 was 36, which supported a PTSD diagnosis. She recommended that the applicant receive 12 sessions of psychotherapy, which he was interested in. It was Dr. Pilowsky’s opinion that the applicant did not belong in the MIG.

13The applicant’s main complaints to Dr. Pilowsky were with respect to vehicular anxiety. He reported that he stopped driving for two months after the accident, and although he returned to driving, he avoided doing so when possible. He took different routes to lower his anxiety, and avoided travelling for long distances and at night. He was fearful as a passenger and hypervigilant in vehicles. He also had nightmares 1-2 times per week with images of accidents, and intrusive and distressing thoughts about the accident. He reported that, on one occasion, he was hypervigilant and preoccupied with the surrounding cars, and drove through a red light as a result. He had to stop his car on the side of the road for 15 minutes to calm down, and then went home instead of continuing with his plans for the day.

14The applicant was assessed under s. 44 by Dr. Arnold Rubenstein, psychologist, on August 17, 2021. The applicant reported that he has a tough time preparing himself to get into a car, although he was able to drive. He described feeling more nervous when approaching an intersection at night. He preferred to be behind the wheel. He reported that his main psychological issues were feeling more cautious and alert while driving. Dr. Rubenstein administered three tests, and based on the results, opined that there was no indication of a diagnosis of any mental disorder, and no accident-related mental impairment providing a barrier to his ability to carry on his normal activities.

15The applicant was re-assessed by Dr. Rubenstein on September 13, 2022. He stated that Dr. Pilowsky’s diagnosis was not adequately supported by objective evidence, and she relied almost exclusively on the applicant’s subjective reporting. The applicant described being nervous and on guard when going through traffic lights, more cautious and alert behind the wheel, anxious in between trucks, and sometimes triggered by the sounds of sirens and car horns. He indicated that he does not drive on the highway much. The applicant expressed a desire to go for counselling, as he believed it would be useful for driving. Dr. Rubenstein maintained his opinion that no diagnosis was warranted.

16I prefer the report of Dr. Pilowsky over those of Dr. Rubenstein. Despite reviewing Dr. Pilowsky’s report and the symptoms endorsed by the applicant, Dr. Rubenstein did not conduct any testing for PTSD. He only re-administered the same three tests from his first assessment. He does not explain what kind of “objective evidence” would be required to make a psychological diagnosis. I find that Dr. Pilowsky’s report was more thorough and detailed, and she conducted a wider range of testing that addressed the symptoms the applicant was reporting.

17In preferring Dr. Pilowsky’s report, I have considered the respondent’s submission that Dr. Rubenstein’s reports should be given more weight because his assessments were conducted in person, and Dr. Pilowsky’s took place over the telephone. While I agree that an in-person or video assessment might be preferable to a telephone assessment, there is no evidence before me that this hindered Dr. Pilowsky’s ability to complete her assessment or form her opinions. In fact, her report included more detail than Dr. Rubenstein’s, so it appears she did not have difficulty obtaining information over the phone.

18The applicant also relies on the clinical notes and records of his family physician, Dr. Nessim, who repeatedly mentioned a diagnosis of PTSD. The respondent argues that this was not necessarily an independent diagnosis from Dr. Nessim, and the only time this diagnosis is mentioned was after the assessment with Dr. Pilowsky, on August 6, 2021. I agree with the respondent that it appears that Dr. Nessim was likely repeating the diagnosis provided by Dr. Pilowsky. Although I find that Dr. Nessim’s notes do not provide much corroborative value for the applicant’s psychological symptoms, I also find that there is also no evidence within Dr. Nessim’s notes that would undermine the diagnosis.

19The respondent further argues that there was nothing in the clinical notes and records to suggest psychological ailments prior to the submission of Dr. Pilowsky’s treatment plan. I do not agree. The applicant’s chiropractor, Dr. Andrew Hakuskay, submitted an OCF-23 on January 6, 2021, which noted that he was experiencing anxiety in a motor vehicle, flashbacks, and general anxiety. Further, a treatment plan submitted by the applicant’s chiropractor on May 13, 2021, also mentioned that the applicant was experiencing psychological distress. During an assessment at Eglinton East Health Centre on July 8, 2021, the applicant reported disrupted mood and anxiety. A treatment plan submitted on the same date by the applicant’s chiropractor noted “post-traumatic stress – patient is reliving accident on a daily basis”, and that he remained very cautious, fearful, anxious, and irritable while driving. I find that this was enough of a suggestion of psychological symptoms to warrant further investigation, and also has corroborative value.

20The respondent relies on S. W. v. Aviva Insurance Company of Canada, 2020 CanLII 69923, and argues that psychological symptoms must be “severe or extreme” in order to remove an insured person from the MIG. I disagree. The decision in that case actually states: “some case law has required that the impairment be severe or extreme”. I do not take that to mean that symptoms must always be severe or extreme. In any event, I am not bound by decisions of this Tribunal. The MIG does not distinguish between degrees of psychological impairments. The only stipulation provided by the MIG is that the psychological symptoms must not be “clinically associated sequelae” to a minor injury as defined in the guideline. Given the nature of the applicant’s psychological symptoms as described above, I find that they are not mere sequelae of his soft tissue injuries.

21For the reasons above, I find that the applicant has proven on a balance of probabilities that he has sustained a psychological impairment such that he should be removed from the MIG.

Is the applicant entitled to $1,995.32 for a psychological assessment, proposed by Pilowsky Psychological Prof. Corp in a treatment plan submitted July 6, 2021 and denied July 15, 2021?

22To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

23I find that the applicant is entitled to the cost of this treatment plan.

24Given my comments above that the applicant sustained a psychological impairment as a result of the accident, a psychological assessment was reasonable and necessary, as it had the goal of determining the extent of his injuries and determining whether treatment was warranted. I find that the cost of the assessment was reasonable in order to achieve that goal.

Is the applicant entitled to $3,259.48 for psychological services, proposed by Pilowsky Psychological Prof. Corp in a treatment plan submitted August 30, 2021 and denied September 10, 2021?

25I find that the applicant is entitled to the cost of this treatment plan.

26The treatment plan in dispute is for 12 sessions of psychotherapy, documentation of session notes, service planning, a formal re-assessment and report, a progress/discharge report, psychoeducational material, and the preparation of the treatment plan. The respondent does not take issue with any of the specific line items in this treatment plan.

27Dr. Pilowsky recommended 12 treatment sessions as a result of the applicant’s psychological symptoms. As indicated above, I prefer her report to those authored by Dr. Rubenstein. The applicant expressed interest in receiving psychotherapy to both Dr. Pilowsky and Dr. Rubenstein. I find that 12 sessions are reasonable and necessary in order to try to address the applicant’s psychological condition, and the cost of the treatment plan is reasonable to further that goal.

Is the applicant entitled to $2,383.84 for chiropractic services, proposed by Eglinton East Health Centre in a treatment plan submitted July 8, 2021 and denied July 15, 2021?

28I find that the applicant is entitled to this treatment plan.

29The treatment plan in dispute is for 16 sessions of active therapy, chiropractic treatment, IFC, TENS, and electrotherapy, and hyperthermy. The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, and a return to activities of normal living and pre-accident work activities. The treatment plan indicates that although the applicant’s range of motion had increased somewhat, end range pain was still evident in the cervical and lumbar spine.

30I note that the respondent does not make any specific submissions aside from stating that this treatment plan is not reasonable or necessary.

31During the applicant’s visit with Dr. Nessim on July 6, 2021, just prior to the submission of this treatment plan, he recommended that the applicant do physiotherapy and exercises. On August 6, 2021 and December 23, 2021, Dr. Nessim again recommended that the applicant continue with physiotherapy. On March 9, 2022, Dr. Nessim recommended that the applicant try to restart physiotherapy. In a letter from Dr. Nessim to the applicant’s paralegal, he indicated that he would need physiotherapy and a home exercise program.

32The applicant advised Dr. Rubenstein in September 2022 that he had initially seen an 80-90% improvement in his physical condition and function. However, after physical therapy stopped, his condition declined to 30-50%.

33I accordingly find that it was reasonable and necessary in July 2021, only seven months after the accident, for the applicant to have received further facility-based therapy. This was supported by his family physician’s recommendations at the time, and the evidence that it was providing him with symptomatic relief.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

35The applicant’s accident-related injuries are outside of the MIG as he suffers from a psychological impairment.

36The applicant is entitled to $1,995.32 for a psychological assessment, proposed by Pilowsky Psychological Prof. Corp in a treatment plan submitted July 6, 2021.

37The applicant is entitled to $3,259.48 for psychological services, proposed by Pilowsky Psychological Prof. Corp in a treatment plan submitted August 30, 2021.

38The applicant is entitled to $2,383.84 for chiropractic services, proposed by Eglinton East Health Centre in a treatment plan submitted July 8, 2021.

39The applicant is entitled to interest on overdue benefits pursuant to s. 51 of the Schedule.