Licence Appeal Tribunal File Number: 23-004855/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:
Jean Carrascal
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Kateryna Vlada, Counsel
For the Respondent: Anthony M Naples, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jean Carrascal, the applicant, was involved in an automobile accident on April 14, 2021, 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, Insurer, 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from April 22, 2021 to June 9, 2021?
iii. Is the applicant entitled to the amount of $3,428.58 for physiotherapy services, proposed by HM Medical Network Ltd. in a treatment plan/OCF-18 (“plan”) submitted on April 19, 2021?
iv. Is the applicant entitled to the amount of $1,264.76 for physiotherapy services, proposed by HM Medical Network Ltd. in a plan submitted on June 21, 2021?
v. Is the applicant entitled to the amount of $2,460.00 for a psychological assessment, proposed by HM Medical Network Ltd. in a plan submitted on August 11, 2021?
vi. Is the applicant entitled to the amount of $4,538.77 for psychological services, proposed by HM Medical Network Ltd. in a plan submitted on November 15, 2021?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has suffered a psychological impairment as a result of the accident and is removed from the MIG.
4The applicant has not proven an entitlement to an income replacement benefit.
5The applicant is entitled to all disputed treatment and assessment plans.
6The applicant is entitled to interest per s.51 of the Schedule.
ANALYSIS
The applicant has suffered a psychological impairment that warrants removal from the MIG
7I find that the applicant has suffered a psychological impairment as a result of the accident and is removed from the MIG.
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 she has developed a psychological impairment as diagnosed by Ms. Lital Grinberg, psychological associate, in an assessment conducted on October 21, 2021. Ms. Grinberg diagnosed the applicant with Specific Phobia: Situational: Vehicular and Somatic Symptom Disorder with Predominant Pain: Moderate.
11The respondent submits an assessment conducted by Dr. Michael Devlin, physiatrist, on August 4, 2021, as evidence that the applicant’s injuries are minor in nature. The respondent further submits that limited weight should be given to Ms. Grinberg’s report and diagnosis as she performed a limited document review and did not see the applicant in person. I disagree with this position.
12The applicant was involved in an accident on April 14, 2021. On the date of the accident, she attended a walk-in clinic and was seen by Dr. Afrooz Drakhshan, physician. Dr. Drakhshan diagnosed her with a whiplash injury and recommended physiotherapy.
13The applicant then saw her family physician, Dr. Silvino Decena, on April 22, 2021, to discuss injuries sustained in the accident.
14Dr. Decena notes that in this visit the applicant mentioned she feels nervous and that she is now afraid to drive. Dr. Decena also recommended physiotherapy.
15While there is no evidence that Ms. Grinberg conducted a thorough document review as part of her assessment, I nonetheless put weight on her report because I find that her report is supported by the contemporaneous clinical notes and records of Dr. Decena. As noted above, eight days following the accident, the applicant first saw her family physician to discuss the accident. During this visit, it is noted by Dr. Decena that applicant reported psychological symptoms concerning her fear of being in a vehicle. I find that this supports Ms. Grinberg’s psychological diagnosis.
16The respondent also submits that Ms. Grinberg’s report should be given less weight as she did not assess the applicant in person. Ms. Grinberg notes that she performed a virtual assessment in accordance with COVID-19 protocols. In my view, in this context where a psychological assessment is being conducted, the fact that the assessment was done virtually in compliance with COVID-19 guidelines does not diminish its weight.
17I give no weight to Dr. Devlin’s opinion in this matter as he is a physiatrist. He did not perform any psychological testing. His assessment was focused on the applicant’s physical injuries.
18I further note that the respondent has not advanced any evidence or commissioned a report to show an alternative psychological opinion to that of Ms. Grinberg.
19Therefore, on the balance of probabilities, I am satisfied that the applicant sustained a psychological injury as a result of the accident.
The applicant has not proven entitlement to an income replacement benefit
20I find the applicant has not proven entitlement to an income replacement benefit.
21To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
22The applicant was employed as a personal support worker at the time of the accident. The applicant submits that, as a result of the accident, she suffered a substantial inability to carry out the essential tasks of her employment. The applicant returned to work on June 9, 2021, just under two months following the accident.
23I note that the applicant has not made any submissions which identify the essential tasks of her employment or describe how her injuries prevented her from performing these essential tasks.
24The burden of proof for entitlement to the benefit rests on the applicant.
25Dr. Decena noted on April 22, 2021, that the applicant is a PSW, who’s work involves lifting, using lifters, frequent bending, twisting and prolonged standing. He also notes that she stopped work on April 14, 2021, and was not working at the time of her appointment.
26I note that all of this is contained in the “Subjective” section of the treatment notes. Dr. Decena made no recommendation or suggestion that the applicant is unable to complete the tasks of her employment due to the injuries sustained.
27The applicant did not discuss her employment with Dr. Drakhshan in her visits immediately following the accident.
28Given the above, I find that the evidence presented to the Tribunal does not substantiate the applicant’s claim to an IRB. I am not convinced on the balance of probabilities that the applicant suffered a substantial inability to perform the tasks of her employment. Therefore, the applicant is not entitled to an IRB.
The applicant is entitled to the disputed treatment and assessment plans
29To 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.
The applicant is entitled physiotherapy services proposed on April 19, 2021
30I find that the applicant is entitled to physiotherapy services in the amount of $3,428.58 proposed on April 19, 2021.
31This treatment plan is dated April 19, 2021, four days after the accident. It proposed 17 sessions of physiotherapy, 17 sessions of massage therapy and relevant document support activities over the course of 8 weeks. The total cost of this plan is $3,428.58.
32The stated goals of the treatment plan are pain reduction, an increase in strength, an increased range of motion and a return to the activities of daily living.
33This treatment plan was denied as the applicant was in the MIG. The respondent submits that Dr. Devlin opined that this treatment plan is not reasonable nor necessary.
34Dr. Devlin notes in his assessment that the applicant most likely sustained soft tissue injuries which will typically resolve in the three to six month timeframe.
35This treatment plan was submitted immediately following the accident for a period covering months one and two following the accident. Given this, I find that it is within the scope of time Dr. Devlin noted is required for the applicant’s physical injuries to heal.
36I also note that both Dr. Decena and Dr. Drakhshan diagnosed the applicant with whiplash and a cervical strain. They both recommended in their clinical notes and records that the applicant should partake in physiotherapy.
37I agree with the applicant. The treatment plan in dispute is proportionate for soft tissue diagnoses of whiplash and cervical strain. I accept that the treatment plan falls within the recommendations made by Dr. Decena and Dr. Drakhshan.
38For the reasons above, I find on a balance of probabilities that the applicant has proven entitlement to this treatment plan for $3,428.58 in physiotherapy.
The applicant is entitled to physiotherapy services proposed on June 21, 2021
39I find that the applicant is entitled to $1,264.76 of physiotherapy services proposed on June 21, 2021.
40This treatment plan is dated June 21, 2021, two months after the accident. It proposed eight sessions of physiotherapy, three sessions of massage therapy and relevant document support activities over the course of four weeks. The total cost of this plan is $1,264.76.
41The stated goals of the treatment plan are pain reduction, an increase in strength, an increased range of motion and a return to the activities of daily living.
42I find that the applicant is entitled to this disputed treatment plan. As noted above, the respondent’s expert opined that the applicant would need three to six months to heal from the injuries sustained in the accident. The treatment proposed in this plan covers month three following the accident. Additionally, physiotherapy was recommended by both the applicant’s family physician and physicians seen at the walk-in clinic. As noted above, I find that this treatment plan falls within the recommendations made by Dr. Decena and Dr. Drakhshan.
43Therefore, I find that the applicant has satisfied her burden of showing that the treatment proposed is reasonable and necessary.
The applicant is entitled to a psychological assessment proposed on August 11, 2021
44I find the applicant is entitled to a psychological assessment proposed on August 11, 2021.
45The purpose of an assessment is to determine whether a condition exists. For an insured, 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.
46This treatment plan is dated August 11, 2021, four months after the accident. It proposed a psychological assessment. The total cost of this plan is $2,460.00.
47The stated goals of the treatment plan are a return to pre-accident psychological functioning.
48The applicant’s psychological symptoms are supported by the contemporaneous clinical notes of her family physician. These notes were documented by Dr. Decena on April 21, 2021. The applicant reported feeling afraid to be in a car following the accident.
49As the applicant has a documented history of psychological symptoms which are related to the accident, I find on a balance of probabilities that this treatment plan is reasonable and necessary.
The applicant is entitled to psychological services proposed on November 15, 2021
50I find the applicant is entitled to psychological services proposed on November 15, 2021.
51This treatment plan is dated November 15, 2021. It proposed 16 sessions of psychological therapy over the course of 16 weeks. The total cost of this plan is $4,538.77.
52The stated goals of the treatment plan are pain reduction, and a return to pre-accident levels of psychological functioning.
53The Tribunal has found that the applicant has suffered a psychological impairment as a result of the accident. As noted above, this is based on the clinical notes and records of the family doctor and the assessment of Ms. Ginsberg. In her report, Ms. Grinberg recommends that the applicant complete psychotherapy, specifically, cognitive behavioural therapy and neurofeedback therapy.
54The therapy recommended is being proposed in this treatment plan.
55Therefore, I find on a balance of probabilities that the applicant has proven this treatment is reasonable and necessary as a result of the psychological impairment sustained in the accident.
Interest
56The applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
ORDER
57For the reasons above I find that the applicant:
i. Has suffered a psychological injury which removes her from the MIG;
ii. Is not entitled to an income replacement benefit;
iii. Is entitled to the following treatment plans:
(a) $3,428.58 for physiotherapy services dated April 19, 2021;
(b) $1,264.76 for physiotherapy services dated June 21, 2021;
(c) $2,460.00 for a psychological assessment dated August 11, 2021; and
(d) $4,538.77 for psychological services dates November 15, 2021.
iv. Is entitled to interest per s. 51 of the Schedule.
Released: March 18, 2025
__________________________
Julian Di Battista
Vice-Chair