Licence Appeal Tribunal File Number: 23-006692/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:
Rosally Cayog
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Estella Muyinda
APPEARANCES:
For the Applicant: Robert N Franklin, Counsel
For the Respondent: IIya Artemyev, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1The applicant was involved in an automobile accident on July 11, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”)
2The applicant was denied benefits by the respondent Aviva Insurance Company of Canada because it determined the applicant’s injuries were predominantly minor and therefore subject to the Minor Injury Guideline (MIG). The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
(a) Did the applicant sustain predominantly minor impairments as a result of the accident and is therefore subject to treatment within the MIG limit?
(b) Is the applicant entitled to the assessments/services proposed by Wilson Massage and Physiotherapy, as follows:
i. $296.40 ($1,300.00 less $1,003.50) for physiotherapy services, in a treatment plan dated September 23, 2022;
ii. $1,662.80 for physiotherapy services, in a treatment plan dated November 18, 2022;
iii. $1,955.36 for physiotherapy services, in a treatment plan dated March 12, 2023; and
iv. $1,662.80 for physiotherapy services, in a treatment plan dated June 18, 2023.
(c) Is the applicant entitled to the assessments proposed by Amena Syed Psychologist Professional Corporation, as follows:
i. $2,486.00 for psychological assessment, in a treatment plan dated December 31, 2022; and
ii. $4,959.75 for psychological services, in a treatment plan dated February 9, 2023?
(d) Is the applicant entitled to $4,832.92 for psychological services, proposed by Dr. Leon Steiner at Pinnacle Health Network and Assessments in a plan submitted August 25, 2023?
(e) Is the applicant entitled to interest on any overdue payment of benefits?
4Upon review of the parties' submissions, both sides agreed that amendments were needed to the list of issues from the CCRO. Specifically, the amount in dispute for Issue 3(b)(i) should include the total and approved amounts from this partially approved plan, while Issue 3(d) had an incorrect submission date. I have allowed these amendments.
RESULT
5For the reasons that follow, I find that:
the applicant has sustained a psychological impairment that warrant her removal from the MIG.
the applicant is entitled to the psychological assessment;
the applicant is entitled to the psychological services;
The applicant is not entitled to the disputed physiotherapy treatment plans, including the unapproved balance for physiotherapy services.
The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
Do the Applicant’s injuries fall outside the MIG?
6I find that the applicant has met her onus and has established that her accident-related injuries fall outside the definition of a “minor injury,” as set out in s. 3(1) of the Schedule. Specifically, she has demonstrated that she sustained an accident-related psychological impairment.
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
8An insured person 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 condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
9In all cases, the burden of proof in establishing removal from the MIG lies with the applicant. As the applicant has met her onus, she is entitled to removal from the MIG.
10The applicant asserts that she should be removed from the MIG on the ground that she sustained a psychological impairment because of the accident.
11The applicant relies on the following documents:
(a) Disability Certificate, from Vaibhavi Dumasia, physiotherapist, describing the applicant as suffering from anxiety disorders, nervousness, nightmares, headaches, and dizziness in addition to her physical issues dated July 31, 2022;
(b) Psychotherapy assessment report from Dr. Amena Syed, neuropsychologist, with a provisional diagnosis, of an adjustment disorder with mixed anxiety and depressed mood with a specific phobia situation, dated December 31, 2022;
(c) Psychological assessment report by Dr. Leon Steiner, psychologist, dated January 30, 2023, describing the applicant as suffering from major depressive disorder with anxious distress; other specified trauma and stressor related disorder, some features of post-traumatic stress disorder and some features of specific (situational) phobia (driver and passenger related); and somatic symptom disorder.
(d) Psychological counselling treatment plan from Dr. Syed, OCF-18 dated February 9, 2023; and
(e) Clinical notes and records for 16 sessions prepared by Poonam Theresa Dhir, registered psychotherapist, (RP) from March 25 to August 2, 2023.
12The respondent relies on the report from Dr. Talebizadeh dated October 4, 2023, that examines the report by Dr. Leon Steiner, and states that the treatment and assessment plan for psychological counselling is not reasonable or necessary. Further, the respondent asserts that the evidence submitted by the applicant contains vague references to clinical notes and records that do not specifically mention psychological impairments. Furthermore, the respondent asserts that the applicant’s injuries are self reported, and there is a lack of objective, psychological evidence that warrants her removal from the MIG.
13Dr. Syed conducted a clinical assessment screening interview with the applicant, to assess and to develop an OCF-18 on December 22, 2022. In her report, Dr. Syed said that the applicant’s psychological injuries appear to be directly attributable to the accident.
14Dr. Syed declared that there was compelling evidence that the applicant’s psychological injuries appear to be directly attributable to the accident. She stated that the injuries are of a severity and duration that would require professional intervention to avoid a chronic condition and prolonged treatment. On that basis Dr. Syed recommended a complete and thorough assessment as necessary to further investigate the psychological condition and make treatment recommendations for the applicant. Relying on Dr. Syed’s report the applicant asserts that on a balance of probabilities she has met her onus and that she be removed from the MIG.
15I find the pre-screening report from Dr. Syed compelling because there is a correlation between her report and Ms. Dhir’s report. Both these reports speak to the specific therapy that the applicant needs to address her injuries. Thus, demonstrating that the applicant should be removed from the MIG.
16Further, the applicant relies upon the psychological report from Dr. Steiner to support her claim that because of her psychological injuries she falls outside the MIG. In his report, the assessor states he reviewed a number of documents in reaching his conclusions, including records from Dr. Syed, the applicant’s GP, CBI Health, and others.
17The applicant relies on Dr. Steiner’s report to assert that she was diagnosed with a psychological impairment. Dr. Steiner states that there is a chronological relationship between the accident and the abrupt onset of cognitive and emotional difficulties faced by the applicant. He states that the psychological conditions and their severity are consistent with the mechanism of the accident.
18Relying on the interview and test results, including behaviour, cognitive and emotional complaints of the applicant, I find Dr. Steiner states that the applicant will continue to head into a negative mental state that may lead to a very complex psychological recovery that requires multiple treatments. I find Dr. Steiner submitted a detailed psychological analysis of the applicant that contains the procedures administered for psychological testing, test results, the psychological condition of the applicant, cognitive difficulties, a diagnosis, and recommendations of a plan for recovery.
19Furthermore, I find Dr. Steiner’s evidence is corroborated by Ms. Dhir, who states, in her report dated July 27, 2023, that the applicant continues to struggle with on-going depression and anxiety, and that she repeatedly discussed these complaints throughout sessions from March 25 to July 26, 2023. Similarly, the psychological counselling treatment plan from Dr. Syed, dated February 9, 2023; confirms that the applicant sustained a psychological impairment. In addition, I note that Ms. Dumasia states in the OCF-18 treatment plan dated June 18, 2023, that the barriers to the applicant’s recovery, include mechanism of accident, more than one site of injury, on-going pain symptoms, sleep disturbance and psycho-emotional symptoms.
20I am convinced by the compelling evidence, submitted by the applicant, that she has demonstrated that she sustained psychological impairments from the accident. She has thus, proved on a balance of probabilities that her injuries fall outside the MIG.
21I am then satisfied that the respondent has not demonstrated that its evidence and arguments establish that the applicant only sustained minor injuries. Once again, the respondent relies on the s. 44 psychological report, prepared by Dr. Sarah Talebizadeh, registered psychologist, dated October 4, 2023, to assert that the applicant’s injuries are predominantly minor.
22The respondent submits that Dr. Talebizadeh concluded that the applicant does not meet the diagnostic criteria for any psychological disorders and that her condition is consistent with a predominantly minor psychological injury. In contrast, the applicant submits that less weight be placed on Dr. Talebizadeh’s report on the basis that Dr. Steiner’s report has a wider range of psychological testing which is bolstered by the applicant’s complaints laid out in the psychological pre-screen, the psychological assessment, and the clinical notes and records.
23In her report, Dr. Talebizadeh determined that the applicant did not sustain any psychological diagnosis resulting from the accident. I place less weight on the evidence submitted in her report because of the following reasons.
24First, the applicant’s self report of the injuries she sustained were corroborated in the reports of Dr. Barret (family doctor), Dr. Syed, Dr. Steiner, Ms. Dhir, and Ms. Vaibhavi Dumasia.
25Then, Dr. Talebizadeh’s report confirms that some of the tests that she conducted were similar to the tests made by Dr. Steiner. In fact, Dr. Talebizadeh acknowledged that the applicant received a course of psychological counseling that was helpful. This corresponds with Ms. Dhir’s report dated July 27, 2023, where she recommended the applicant to receive sixteen weeks of psychological counselling sessions, to address her psychological impairment.
26Finaly, in assessing the weight to place on the evidence submitted by the respondent and applicant, I find the applicant’s submissions and evidence corroborate that she sustained an accident-related impairment that is not captured by the definition of a “minor injury” under s. 3 of the Schedule.
27Based upon the foregoing. I find that the applicant has demonstrated, on a balance of probabilities, that she suffers from a psychological impairment that justifies removal from the MIG. As a result, I find that the applicant has met her onus, and she is entitled to removal from the MIG.
Are the physiotherapy treatment plans reasonable and necessary?
28To 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 because 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.
29The applicant is seeking entitlement to three proposed treatment plans for physiotherapy services in the amounts of $1,662.80, dated November 18, 2022; $1,955.36, dated March 12, 2023; and $1,662.80, dated June 18, 2023. The applicant is also seeking payment for the balance of the partially approved treatment plan in the amount of $296.40, dated September 23, 2022. The applicant claims that the total outstanding amount owing to the clinic for the treatment plans is $4,113.52.
30As stated in the four physiotherapy OCF-18 treatment plans completed by Ms. Dumasia, the first recommended treatment was for a nine to twelve weeks period. Recommendations for the next three treatment plans was for a period of eight consecutive weeks for each treatment plan.
31The treatment goals listed on the four plans are all the same, and they include: pain reduction increased in strength, increased range of motion, promote core strengthening/spinal stability and the functional goals include a return to activities of normal living, return to pre-accident work activities, return to modified work activities and reduce functional intolerance.
32The respondent relies on the report of Dr. Esmat Dessouki, orthopedic surgeon, dated September 27, 2023, in which he asserts that there is no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained by the applicant in the accident. Further, the doctor states that the physiotherapy services treatment plans are not reasonable and necessary.
33In her submissions the applicant relies on Dr. Barrett’s clinical notes and reports dated July 12, 2022, August 16, 22, August 23, 2022, and October 14, 2022, as corroborating evidence for the payment of the treatment plans. Upon review of the applicant’s submissions, I note that the period Dr. Barrett completed his clinical notes does not correspond to the period of the treatment plans at issue. As a result, I find that the evidence the applicant relies on does not demonstrate support for the physiotherapy treatment plans at issue. Additionally, the applicant’s injuries as laid out in these treatment plans are minor, for example, sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of lumbar spine, sprain and strain of shoulder joint. As the applicant’s physical impairments at issue appear to be minor in nature, I find that the applicant is not entitled to the physiotherapy treatment plans in dispute dated November 18, 2022, March 12, 2023, and June 18, 2023, and the balance on the treatment plan dated September 23, 2022, because she has not demonstrated that they are reasonable and necessary.
34Based on the foregoing, I find that the applicant has not met her burden and proven on a balance of probabilities that the physiotherapy treatment plans are reasonable and necessary.
Are the psychological treatment plans reasonable and necessary?
35The applicant is seeking entitlement to three proposed treatment plans: for a psychological assessment in the amount of $2,486.00 dated December 31, 2022; psychological services, in the amount of $4,959.75 dated February 9, 2023; and for psychological services, in the amount of $4,832.92, dated August 25, 2023. The applicant asserts that the psychological treatment plans are reasonable and necessary.
36The applicant relies on the pre-assessment report of Dr. Syed, the psychotherapy progress report from Ms. Dhir, and the psychological assessment report by Dr. Steiner. The OCF-18 treatment plans completed by Dr. Syed corroborates the report and treatment plan by Dr. Steiner. The treatment plans indicate that the applicant has the following injuries: depressive episode, somatoform disorders, specific (isolated) phobias, adjustment disorders, sleep disorders, disorders of initiating and maintaining sleep insomnias, headache.
37The applicant submits that the psychological assessment and counseling were reasonable and necessary on the basis that she sustained serious psychological injuries that warrant her removal from the MIG. Further, the applicant asserts that the psychological assessments and counseling sessions were reasonable and necessary based on the same reasons. The applicant asserts that she incurred the costs of the recommended psychological assessments and counseling from which she made progress, adding that it is an indication that the treatment plans were reasonable and necessary.
38The respondent counters that the applicant has not adduced sufficient medical evidence to demonstrate that the treatment plans are reasonable and necessary. The respondent relies on the report of Dr. Talebizadeh, dated October 4, 2023. The doctor asserts that the disputed treatment plans proposed by Dr. Syed are neither reasonable nor necessary. Additionally, the respondent states that psychological services, proposed by Dr. Steiner, are not reasonable and necessary.
39The respondent asserts that the treatment plans for the psychological services were denied based on the premise that the applicant’s injuries fall within the MIG. In her report, Dr. Talebizadeh concluded that “the applicant does not meet the diagnostic criteria for any psychological conditions and has reached maximum medical improvement from a psychological perspective.” For the reasons stated above, I am not persuaded by the doctor’s conclusion and prefer the evidence tendered by the applicant. I find that the applicant has demonstrated by her continued attendance for psychological treatment, that it was necessary that she receive treatment for a psychological impairment.
40The applicant points to evidence that demonstrates that the first treatment plan dated December 31, 2022, relates to a psychological pre-screening process. Here, a provisional diagnosis made by Dr. Syed indicates that the applicant was suffering from adjustment disorder with mixed anxiety and depressed Mood as well as a specific phobia. In her report, Dr. Syed recommended psychological treatment with a follow up assessment. The applicant incurred the costs of the psychological assessment which I find is reasonable and necessary.
41The applicant indicates that the second treatment plan dated February 9, 2023, relates to the psychological counseling services. The applicant points to Ms. Dhir’s progress report as supporting evidence that demonstrates that she had 15 psychotherapy sessions. In the progress report Ms. Dhir recommended additional therapy sessions for the applicant. The applicant indicates that the costs of the psychological treatment were incurred and, given my reasons above, I find that the services are reasonable and necessary.
42In the third treatment plan for psychological assessment dated August 25, 2023, Dr. Steiner assessed the applicant. He diagnosed the applicant as suffering from Major Depressive Disorder with Anxious Distress; Other Specified Trauma and Stressor Related disorder (some features of Post-Traumatic Stress Disorder and some features of Specific (situational) Phobia (driver and passenger related) and Somatic Symptom Disorder. The functional goals to be achieved as listed in the treatment plan by Dr. Steiner include a return to activities of normal living; return to pre-accident work activities, return to modified work activities; return to pre-accident level of physical and psychological functioning.
43As the applicant has been removed from the MIG, there is merit to her argument that the treatment plans for psychological assessment and ongoing psychological services are reasonable and necessary. Additionally, I am persuaded by the corroborative evidence from Dr. Syed, Dr. Steiner and Ms. Dhir that demonstrates that the applicant suffered a psychological impairment as a direct result of the accident. As a result, I am persuaded by the applicant’s argument that the psychological treatment plans are reasonable and necessary because of the compelling evidence demonstrating that the applicant suffers from a psychological injury as a result of the accident.
44I find that the applicant is entitled to payment of the psychological assessment plans and the two psychological services treatment plans, as she has met her burden and proven on a balance of probabilities that they are reasonable and necessary.
Is the applicant entitled to interest?
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
46As I found the treatment plans for the psychological assessment and psychological services to be reasonable and necessary, the applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
ORDER
47Based on the evidence before me, I find that:
a. the applicant has demonstrated on a balance of probabilities that she sustained a psychological impairment that removes her from the MIG.
b. the disputed treatment plan for the psychological assessment is reasonable and necessary and therefore payable.
c. the disputed treatment plans for psychological services are reasonable and necessary and are therefore payable.
d. The applicant is not entitled to the disputed physiotherapy treatment plans, including the unapproved balance for physiotherapy services.
e. The applicant is entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule.
Released: April 25, 2025
Estella Muyinda
Adjudicator