Licence Appeal Tribunal File Number: 22-011762/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:
Sandra Oyarce
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Gjergji Laloshi, Paralegal
For the Respondent: Daniel M Himelfarb, Counsel
HEARD: By Way Of Written Submissions
OVERVIEW
1Sandra Oyarce, the applicant, was involved in an automobile accident on February 26, 2022, 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, Co-Operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue in dispute are:
i. Is the applicant entitled to $4,338.35 for psychological services, proposed by Medex Assessments Inc in a treatment plan/OCF-18 (“plan”) dated September 8, 2022?
ii. Is the applicant entitled to $2,597.87 for a driver’s reintegration assessment, proposed by Medex Assessments in a plan dated September 9, 2022?
iii. Is the applicant entitled to $1,993.68 for a speech language pathology assessment, proposed by FunctionAbility Rehabilitation Services in a plan dated March 22, 2022?
iv. Is the applicant entitled to $4,459.84 for speech language pathology treatment, proposed by FunctionAbility Rehabilitation Services in a plan dated June 16, 2022?
v. Is the applicant entitled to $4,020.00 for speech language pathology treatment, proposed by FunctionAbility in a plan dated October 17, 2022?
vi. Is the respondent liable to pay an award under s.10 of O.Reg 664 for unreasonably withholding or delaying payment to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to $4,338.35 for psychological services and $2,597.87 for a driver’s reintegration assessment.
4The applicant is not entitled to a speech language pathology assessment or treatment.
5The respondent is not liable to pay an award.
6The applicant is entitled to interest.
PROCEDURAL ISSUES
7On January 8, 2024, the Tribunal issued a Motion Order ordering that the parties’ written submissions be limited to 10 pages each. The applicant’s written submissions, however, exceed that limit by 6 pages. The respondent’s submissions exceed the page limit by 2 pages.
8The respondent submitted that as a result of the applicant’s overage, it was prejudiced, and the Tribunal should refuse to consider any submissions beyond the 10-page limit. The applicant submitted that this was an unfortunate oversight when referring to another Motion Order the Tribunal issued two days earlier which did not stipulate any page limit for submissions.
9I caution both parties in exceeding the page limit for written submissions ordered by the Tribunal. Any submissions beyond the ordered limit could result in their omission from consideration by the hearing adjudicator. In this case, both parties have exceeded the page limits ordered.
10I have considered the submissions of the parties and in the interest of fairness and efficiency the submissions of each party have been considered in totality. I do not find that either party is unduly prejudiced as a result.
ANALYSIS
11To receive payment for a treatment 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.
12The purpose of an assessment is to determine whether a condition exists. The applicant also bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
Psychological services proposed on September 8, 2022
13I find that the applicant is entitled to the psychological services proposed on September 8, 2022 as she has demonstrated that they are reasonable and necessary.
14The treatment plan in dispute was completed by Dr. Silvia Tenenbaum, psychologist. It recommends 20 one-hour sessions of psychotherapy to aid in the applicant’s psychological recovery.
15The applicant argues that these psychological services are reasonable and necessary based on her accident-related disturbed sleep, poor memory, lapses in concentration, avoidance behaviours, ongoing physical pain, and depressed mood. She relies on the psychological assessment report completed by Dr. Tenenbaum on August 24, 2022 in which a provisional diagnosis of post-traumatic stress disorder and possible major depressive disorder, single episode moderate, was made. The applicant also submits there is evidence since the accident of her consistent report of psychological symptoms that has been corroborated by her adult daughter. This evidence can be found in the occupational therapy clinical notes and records from FunctionAbility, clinical notes and records from Dr. Claudio Borgono, family physician, Dr. Tenenbaum’s report, and the s.44 psychiatric report of Dr. Robert Hines.
16The respondent maintains that the proposed treatment is not reasonable and necessary and relies on the psychiatric report of Dr. Hines dated December 14, 2022. Dr. Hines did not find adequate basis for Dr. Tenenbaum’s diagnoses or conclusions, and Dr. Hines found that the applicant was not suffering from any psychiatric impairment as a result of the accident. The respondent also submits that there is no indication in Dr. Borgono’s records that the applicant suffered any significant psychological symptoms after the accident.
17I am persuaded by the applicant’s submissions and agree that there is evidence of consistent psychological symptom reporting since the accident. While Dr. Hines may not have concurred with Dr. Tenenbaum’s diagnoses there is clear indication in his report that the applicant presented with depressed affect, pain behaviours, sleep disruption, mood fluctuations, and low energy. I also find that there is evidence in Dr. Borgono’s clinical notes and records of reported psychological symptoms. For example, on July 7, 2022 Dr. Borgono noted that since the accident the applicant has been more sad, less sharp, poor concentration, and memory difficulties.
18For these reasons, I find that the applicant has demonstrated, on a balance of probabilities, that the proposed psychological services are reasonable and necessary.
Driver’s reintegration assessment proposed September 9, 2022
19I find that the applicant is entitled to a driver’s reintegration assessment proposed on September 9, 2022 as she has demonstrated that it is reasonable and necessary.
20The treatment plan in dispute was completed by Dr. Tenenbaum, psychologist with a goal to further investigate the applicant’s emotional health in relation to her ability to participate in vehicular traffic, as a driver or passenger.
21Once again, the applicant relies on Dr. Tenenbaum’s August 2022 report and the applicant’s consistent report of anxiety when in vehicles and in situations where vehicles are close to her. For example, Dr. Tenenbaum reported that the applicant felt significant anxiety related to driving and avoided driving whenever possible. She also experiences significant anxiety when travelling as a pedestrian and passenger, but was not avoidant.
22The respondent relies on the psychiatric report of Dr. Hines dated December 14, 2022 who did not diagnose the applicant with any psychological impairment despite acknowledging some symptoms. The respondent also submits that the applicant resumed driving following the accident, she walks her dogs four times per day (which is inconsistent with her report of pedestrian anxiety), and Dr. Tenenbaum did not diagnose her with a specific phobia related to driving. Furthermore, the applicant reported to Mr. Marcus Yu, occupational therapist, that she did not want a driver’s reintegration assessment or treatment.
23I am persuaded by the applicant’s submissions. While the respondent argues that the applicant resumed driving following the accident, clinical notes and records from Mr. Yu dated May 12, 2022 indicate that the applicant was only driving less than 10 minutes, infrequently, at non-peak times, was slow and cautious, and experienced high levels of anxiety when doing so. The same applies to walking her dogs. While I agree that the applicant reported to Mr. Yu in May 2022 that she was hopeful that psychology sessions and occupational therapy sessions would help to address her driving-related anxiety, the applicant also noted that if her symptoms persisted, she wanted to pursue driver’s reintegration. The treatment plan in dispute was proposed almost four months later, indicating that her anxiety had not resolved.
24While I am mindful that Dr. Tenenbaum did not diagnose the applicant with a specific driving phobia, she did comment on the applicant’s driving anxiety. One of the purposes of the proposed plan is to investigate the applicant’s emotional health related to driving to help formulate a diagnosis and develop treatment on a more detailed level. The proposed plan is also supported by Mr. Yu. Dr. Hines’ report did not specifically address whether a driver’s reintegration assessment was reasonable and necessary, and as such, I find it to be of little assistance in determining entitlement to the treatment plan at issue.
25For these reasons I find that the applicant has demonstrated, on a balance of probabilities, that she is entitled to a driver’s reintegration assessment as proposed.
Speech language pathology treatment proposed March 22, June 16, and October 22, 2022
26I find that the applicant is not entitled to a speech language pathology assessment or two treatment plans for speech language pathology treatment dated March 22, June 16, and October 22, 2022, respectively. The applicant has not demonstrated that they are reasonable and necessary.
27Each of the treatment plans were completed by Ms. Christina Feraru, speech language pathologist. The recommendations were made after an occupational therapy assessment report by Mr. Yu dated March 22, 2022. Ms. Feraru indicated that the proposed assessment would address the applicant’s difficulty with communication as a result of the accident. Specifically, it would address word finding difficulties, reduced concentration, reduced comprehension/retention, memory, and information processing. The goals of the remaining two treatment plans for speech language pathology training/communication sessions dated June 16 and October 22, 2022 aim to provide education, strategies to maximize auditory comprehension and language processing, and a return to full pre-injury activities.
28The applicant submits that the occupational therapy assessment report by Mr. Yu revealed significant cognitive and processing concerns for which speech language pathology was recommended. Specifically, Mr. Yu noted severe forgetfulness, poor memory, and poor concentration. The applicant also relies on Ms. Feraru’s pre-screening interview for speech language pathology dated March 30, 2022. She corroborated Mr. Yu’s recommendations. Ms. Feraru then completed a speech language pathology assessment on June 14, 2022 and noted significant word finding difficulties, poor recall, diminished attention/concentration, longer times needed to articulate thoughts, and poor retention of written content.
29The respondent maintains that the proposed treatment plans are not reasonable and necessary and relies on a s.44 neurological assessment report of Dr. Garry Moddel dated June 28, 2022, a s.44 occupational therapy assessment report of Ms. Vanessa Sun dated July 12, 2022, and Dr. Tenenbaum’s report. The respondent submits that Mr. Yu’s report provides no indication that the applicant demonstrated any difficulty in the areas described. Rather, his recommendations were based on the applicant’s self-report. The respondent submits that the same applies to Ms. Feraru’s intake interview in March 2022. Her recommendations at that time were also based on the applicant’s self-report. In addition, Dr. Tenenbaum’s report of August 2022 indicates that she observed no cognitive or speech issues, and word finding or communication issues. This corroborates Dr. Moddel’s findings that the applicant was not suffering from any neurological or cognitive impairments.
30I find the applicant’s submissions and evidence regarding a speech language pathology assessment and treatment to be unpersuasive. Although the applicant submits that she has ongoing symptoms for which speech language pathology assessment and treatment would be beneficial, the evidence from the applicant’s own assessor Dr. Tenenbaum and the respondent’s assessors Dr. Moddel and Ms. Sun support that the applicant’s symptoms do not affect her life in a significant way. I agree with the respondent that none of the assessors relied on by the applicant observed inattentiveness, illogical speech, or flight of ideas. Dr. Tenenbaum even went so far as to report that she observed no problems with attention or concentration. The applicant has returned to most of her pre-accident functions. She speaks with her family several times per day, and none of them have reported that she has word finding or communication issues.
31As such, I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to the cost of a speech language pathology assessment or treatment.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is payable on any incurred amounts related to the issues of psychological services and driver’s reintegration assessment.
Award
33The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the respondent did not unreasonably withhold or delay payment of benefits and as a result the applicant is not entitled to an award.
ORDER
34The applicant is entitled to $4,338.35 for psychological services and $2,597.87 for a driver’s reintegration assessment.
35The applicant is not entitled to a speech language pathology assessment or treatment.
36The respondent is not liable to pay an award.
37The applicant is entitled to interest on overdue benefits in accordance with s. 51 of the Schedule.
Released: October 10, 2024
Tyler Moore
Vice-Chair