Fernandez Arpajon v. Pembridge Insurance Company, 2025 CanLII 10785

Citation: Fernandez Arpajon v. Pembridge Insurance Company, 2025 ONLAT 23-001746/AABS

Licence Appeal Tribunal File Number: 23-001746/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:

Arletys Fernandez Arpajon

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Pamela A. Delgado, Paralegal

For the Respondent: Juny Kim, Counsel

HEARD: By way of written submissions

OVERVIEW

1Arletys Fernandez Arpajon, the applicant, was involved in an automobile accident on December 31, 2019, 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, Pembridge 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 have exhausted the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to $2,635.40 for physiotherapy services, proposed by Mackenzie Medical in a treatment plan/OCF-18 (“plan”) dated March 13, 2021?

iii. Is the applicant entitled to $2,229.50 for physiotherapy services, proposed by Mackenzie Medical in a plan dated July 18, 2022?

iv. Is the applicant entitled to $2,200.00 for psychological services, proposed by Princeton Hills Medical Center in a plan dated July 21, 2022?

v. Is the applicant entitled to $2,260.00 for other goods and services (psychological assessment), proposed by Princeton Hills Medical Center in a plan dated July 20, 2022?

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

RESULT

3Based on the evidence before me and for the reasons that follow, I find that:

i. The applicant’s injuries are not predominantly minor and therefore she should be removed from the MIG on the basis of her psychological condition.

ii. The applicant is entitled to the disputed treatment plan for other goods and services (psychological assessment) (item 2(v)).

iii. The applicant is entitled to the treatment plans for physiotherapy services (items 2(ii) and 2(iii)).

iv. The applicant is not entitled to the treatment plan for psychological services (item 2(iv)).

v. The applicant is entitled to interest on the outstanding treatment plans for physiotherapy items 2(ii) and 2(iii) and outstanding goods and services (psychological assessment) plan.

ANALYSIS

Minor Injury Guideline

4The applicant is removed from the MIG on the basis of her psychological condition.

5Section (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 in accordance with the MIG. Section 3(1) of the Schedule 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.” An insured “may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule, or under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if the insured person is kept within the confines of the MIG.” The Tribunal has also determined that chronic pain with functional impairment or a psychological condition have been found to also exceed the definition of minor injury.

6The burden is on the applicant to show on a balance of probabilities that her injuries fall outside of the MIG.

7Based on the evidence provided, the applicant has proven on a balance of probabilities that she should be removed from the Minor Injury Guideline for her psychological condition.

Psychological Impairment

8The applicant submits that, as a result of the accident, she suffers from a psychological condition that warrants removal from the MIG. She relies on the following:

i. Disability certificate.

ii. Psychological assessment report by Dr. Konstantareas.

iii. Clinical notes and records from the Queen Clinic.

9The respondent relies on the following documents:

i. Insurer’s assessment report by Dr. Patrick Tansey (orthopaedic surgeon)

ii. Insurer’s assessment report by Jeff Perrier (occupational therapist)

iii. Insurer’s assessment report by Karen Spivak (psychologist).

10Following the accident on December 31, 2019, the applicant was issued a disability certificate which listed her injuries including sprains and strains of the cervical spine, thoracic spine, shoulder joint, muscles as well as pain in her joints, pain in her thoracic spine, subluxation, nervousness and disorders that have made initiating and sustaining sleep difficult. It was also noted she suffered a complete inability to carry on a normal life in that she was unable to conduct activities of daily living for 9-12 weeks. A January 2, 2020 visit with Dr. Nagy Awad, the applicant’s family doctor, assessed her with muscle sprains.

11The applicant subsequently attended physiotherapy and massage therapy for her continued back pain, as recommended by The Queen Clinic in a visit on May 6, 2021.

12On December 16, 2021, the applicant attended the Queen Clinic and was seen again by Dr. Awad, who noted that while she appeared cheerful and not in distress, she suffered from nightmares and difficulty sleeping, and noted that she might have PTSD. She was referred to a psychiatrist for these continuing post-accident psychological issues, as noted in the clinical notes and records.

13The applicant relies on the psychological assessment report by Dr. Mary Konstantareas dated August 24, 2022. This report diagnoses an adjustment disorder with mixed anxiety and depressed mood, and specific phobia related to the accident. It recommends psychoeducation and cognitive behavioural therapy.

14This psychological assessment diagnosed the applicant with mixed anxiety and depressed mood. She noted that her pain interferes with her work and her activities of daily living, including household chores. From a psychological standpoint, she has experienced sleep disruptions, difficulty relaxing and negative thoughts. Her test results fell in the severe range of depression, with moderate levels of anxiety and no sign of PTSD. The diagnosis includes an adjustment disorder with mixed anxiety and depressed mood, and a specific phobia related to fear of injury related to the accident.

15The respondent submitted that the applicant did not suffer any injury that would remove her from the MIG. The respondent relies on the s. 44 report conducted by Karen Spivak, a psychologist, dated January 27, 2023. She opined that the applicant does not meet the full criteria for a DSM-5 diagnosis and the applicant’s mid-level of depressed mood is not of a magnitude to constitute psychological impairment or impair with her ability to engage in her activities of daily living.

16I find the applicant’s s. 25 psychological assessment report to be more compelling because it is more consistent with the other evidence presented by the applicant which includes, most importantly, her doctor visits and references to psychological conditions that should be treated and suggests, on the balance of probabilities, that the applicant does indeed suffer from issues that are not mere psychological sequelae to the accident but are psychological conditions that require further examination and treatment. In fact, the respondent’s own s. 44 assessment notes that there are compelling reasons to further examine the applicant’s issues, and thereby suggest there are psychological issues and conditions that are ongoing and the result of her accident. The respondent’s report even notes that the applicant’s psychological impairment is acute.

17In addition, the applicant’s visits to her doctor at the Queen Clinic support her assertions that she is suffering from acute and ongoing psychological issues that have persisted more than two years post-accident.

18I find based on the evidence and on a balance of probabilities that the applicant suffered from a psychological condition as a result of the accident which warrant her removal from the MIG.

19As I have found the applicant is removed from the MIG on the basis of a psychological condition, I do not need to consider her arguments related to chronic pain.

The applicant is entitled to the treatment plan for goods and services (psychological assessment)

20Having determined the applicant’s injuries fall outside of the MIG on the basis of psychological conditions as a result of the accident, I will now turn to whether the treatment plans claimed are reasonable and necessary.

21To 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.

22The purpose of an assessment is to determine whether a condition exists. For an applicant, they bear 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.

23I find that both the applicant’s and the respondent’s psychological assessments that were submitted assert a need for more thorough examination and treatment for the applicant’s psychological issues. The applicant’s assessment recommends psychoeducation and cognitive behavioural therapy. The respondent’s recommends additional examination and reporting and notes the applicant’s psychological injuries and impairments are “acute.”

24I find that the evidence indicates that there are sufficient grounds on which to believe that the applicant has a psychological condition that warrants further investigation by way of an assessment.

25Accordingly, I find on a balance of probabilities that the OCF-18 in the amount of $2,260.00 for other goods and services (psychological assessment) is reasonable and necessary.

The applicant is not entitled to the treatment plan claimed for psychological services

26There is no reference or submissions about the treatment plan for psychological services (2(iv)) in the applicant’s submissions. Accordingly, I find that the applicant has not met her burden of proof and is not entitled to this treatment plan.

The applicant is entitled to one of the two treatment plans claimed for physiotherapy

27The applicant must show that the treatment plans claimed are reasonable and necessary.

28Clinical notes and records from the Queen Clinic (May 6, 2021) note an assessment of trauma and back pain and recommend physiotherapy and massage therapy in a prescription from Dr. Awad. Later CNRs from the Queen Clinic note only ongoing psychological issues but make little reference to musculoskeletal issues or problems, or any treatments.

29Accordingly, the treatment plan for physiotherapy services dated March 13, 2021 can be seen as reasonable and necessary because clinical notes and records note trauma and back pain and recommend physiotherapy. However, the treatment plan for physiotherapy services dated July 18, 2022 has no CNRs or other evidence that would indicate that this treatment is reasonable or necessary.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The respondent shall pay interest on item 2(v), goods and services (psychological assessment) and physiotherapy services, item 2(ii).

ORDER

31For the reasons outlined above, I find that:

i. The applicant’s injuries are not predominantly minor and therefore the applicant is removed from the MIG.

ii. The applicant is entitled to the disputed treatment plan for other goods and services (psychological assessment), item 2(v) above.

iii. The applicant is entitled to the treatment plan for physiotherapy services for $2,635,40 dated March 13, 2021 (item 2(ii)).

iv. The applicant is not entitled to the treatment plan for physiotherapy services for $2,229.50 dated July 18, 2022 (item 2(iii)).

v. The applicant is not entitled to the disputed treatment plan for psychological services, item 2(vi) above.

vi. The applicant is entitled to interest on item 2(v), goods and services (psychological assessment) and item 2(ii) for physiotherapy services.