Licence Appeal Tribunal File Number: 23-009367/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:
Yulia Tomash
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR: Rasha El Sissi
APPEARANCES:
For the Applicant: Ilia Estrah, Counsel
For the Respondent: Christopher Marshall, Counsel
HEARD: By way of written submissions
OVERVIEW
1Yulia Tomash, the applicant was involved in an automobile accident on September 15, 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, BelairDirect 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 $3,114.82 for physiotherapy services, proposed by HM Medical Network Ltd. in a treatment plan/OCF-18 (“OCF-18”) submitted October 19, 2021?
iii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by HM Medical Network Ltd. in an OCF-18 submitted February 18, 2022?
iv. Is the applicant entitled to $4,015.13 for psychological treatment, proposed by HM Medical Ltd. in an OCF-18 submitted May 27, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is removed from the MIG.
4The applicant is not entitled to $3,114.83 for the treatment plan for physiotherapy services.
5The applicant is entitled to $2,460.00 plus interest for the treatment plan for a psychological assessment.
6The applicant is entitled to $4,015.13 plus interest for a treatment plan for psychological services.
ANALYSIS
Removal from the MIG due to a Psychological Condition
7I find that the applicant has a psychological condition related to the accident that warrants removal 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.
10In the accident, the applicant’s head, elbow and knee were hit as a result of the impact from a passing car. The applicant’s injuries listed in her OCF-3 Disability Certificate signed by Manvi Aggarwal, physiotherapist, on October 4, 2021 include both physical injuries (WAD II, knee, shoulder and spine sprain / strain, headache) and psychological injuries (sleep disorder, anxiety, malaise, stress). The applicant relies on the clinical notes and records of her family doctor, Dr. Oleg Klipitch, reports from specialist doctors, and the results of various diagnostic tests. She also relies on a s. 25 psychological assessment dated April 6, 2022 conducted by Dr. Nina Belyakova, psychologist.
11In her psychological assessment of the applicant, Dr. Belyakova found that her presentation is consistent with DSM-5-TR and ICD-10 criteria for “F43.8 Other Specified Trauma and Stressor-Related Disorder: Adjustment-like disorder with prolonged duration of more than six months”. Dr. Belyakova opined that the applicant’s condition is consistent with “Class 3: Moderate Impairment”. She recommended 12 sessions of cognitive behavioural oriented psychotherapy and time for ongoing assessment and re-assessment. The applicant submits that a diagnosis of this kind removes her from the MIG.
12The respondent relies on a s. 44 Insurer’s Examination (“IE”) musculoskeletal assessment by Dr. Eric Silver, general practitioner, dated December 2, 2021 and confirmed in a paper review dated April 12, 2023; and a psychological assessment by Dr. Charlotte Lynn Gooden, psychologist, dated October 24, 2022 and confirmed in a paper review dated November 18, 2022.
13The respondent submits that the applicant did not suffer a psychological injury as a result of the accident based on Dr. Gooden’s report. Dr. Gooden concluded that the applicant’s reported psychological symptoms are not of a magnitude or severity to result in a formal DSM-5-TR diagnosis as a result of the accident. Dr. Gooden did not recommend any treatment.
14Each psychologist interviewed the applicant, administered tests and interpreted the results. Their reports set out different opinions about whether the applicant has a DSM-5-TR diagnosis. The applicant argues that the evidence she submitted of a DSM-5-TR diagnosis should be given more weight than the evidence submitted by the respondent because:
i. Dr. Belyakova used more psychodiagnostics testing to gauge and assess for DSM-5 impairments;
ii. Dr. Gooden’s impression is not consistent with her test results and Dr. Belyakova’s report should be preferred as her impression is more consistent with the psychodiagnostics tests results; and
iii. the applicant corroborated her emotional and behavioural symptomology through her reporting to family physicians and specialists as recorded in their clinical notes and reports.
15I agree with the applicant and put more weight on the report of Dr. Belyakova for the following reasons.
16I find that Dr. Belyakova administered three tests that Dr. Gooden did not (Patient Pain Profile (P3), Injustice Experience Questionnaire (IEG) test and Specific Phobia (driving test), with above average scores for the applicant. Dr. Gooden did not measure driving phobia and relied on her clinical interview alone.
17I also find that both psychologists administered the Pain Catastrophizing Scale (PCS) and both found significant results. Dr. Gooden found clinically significant rumination over pain and demonstrated significant tendency to magnify the extent of psychological factors impacting the perception of pain and disability. Dr. Gooden also found significant clinical risk range for cognitive and physical fatigue and diminished interest. The applicant submits, and I agree, that this is evidence that Dr. Gooden’s conclusion that the applicant does not have a DSM-5 TR is not consistent with the pyschodiagnostic test results.
18Further, I considered the extent to which the opinions of Dr. Belyakova and Dr. Gooden are corroborated by the other medical evidence before me. I considered evidence of the underlying pain the applicant reported experiencing after the accident to her doctors since the psychological reports relate the applicant’s pain experience to her psychological symptoms. I find that the medical evidence corroborates that the applicant was experiencing post-traumatic headaches related to the accident. I note that neither psychologist reviewed the medical evidence.
19Regarding her underlying pain, the applicant submitted evidence that she complained of pain to Dr. Klipitch and other doctors, starting in November 2021. I find that these complaints included severe and frequent headaches that were related to the accident for the following reasons. After the accident, Dr. Klipitch referred the applicant first to Dr. Bryan Temple, neurologist, and later to Dr. Harmanjit Sandhu, pain specialist. Dr. Temple diagnosed the applicant with post-traumatic headaches in his report dated August 24, 2022. Dr. Sandhu also diagnosed the applicant with post-traumatic headaches in her report dated January 8, 2024. In each report, the trauma referred to is the subject accident. The specialists variously recommended prophylactic medication for headache pain and medication for anxiety and depression, physical therapy and exercise, and potentially nerve blocks.
20In addition, I considered the evidence regarding the applicant’s self-reported psychological symptoms from the time of the accident. Dr. Belyakova opined that the applicant’s condition is consistent with “Class 3: Moderate Impairment”, meaning her impairment is consistent with some but not all useful functioning. I find that applicant consistently reported psychological symptoms to her doctors starting in November 2021, which supports Dr. Belyakova’s conclusion of impairment of some but not all useful functioning.
21Regarding her psychological symptoms, the applicant reported lack of sleep, irritability, and daytime fatigue to Dr. Klipitch on November 24, 2021. Dr. Klipitch’s encounter notes for February 14 and February 25, 2022 report similar complaints, plus anxiety. Dr. Sandhu recommended medication to improve the applicant’s psychiatric health in her report dated January 8, 2024 (in which she diagnosed posttraumatic headaches) as the applicant presented symptoms of depressed mood relating to her pain burden. These consistently repeated psychological impairments concern lack of sleep, irritability, anxiety and / or depression are also discussed in Dr. Belyakova’s report. Sleep disturbance, low mood and irritability are also mentioned in Dr. Gooden’s report as part of the summary of her clinical interview of the applicant.
22In sum, I find on a balance of probabilities that the applicant has a psychological condition that warrants removal from the MIG.
Pre-existing Condition and Chronic Pain
23As I have found that the applicant is removed from the MIG due to an accident-related psychological condition, it is not necessary for me to consider whether she is removed from the MIG due to a pre-existing condition or chronic pain with functional impairment.
OCF-18s
24To receive payment for an OCF-18 under sections 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 OCF-18 for physiotherapy is not reasonable and necessary.
25I find that this OCF-18 is not reasonable and necessary.
26The disputed OCF-18 in the amount $3,114.82 proposes: assessment, physiotherapy rehabilitation, massage therapy, TENS unit accessors, hot/cold gel pack, Biofreeze, exercise equipment and documentation.
27The applicant submits this OCF-18 is reasonable because the goals of the treatments are legitimate, proportional and achievable.
28The respondent denied this OCF-18 following Dr. Silver’s December 2, 2021 report wherein he concluded that, from a musculoskeletal perspective, the applicant’s injuries are minor and thus the treatment is not reasonable and necessary. Dr. Silver recommended that the applicant follow-up with her family doctor to determine if any other diagnostic testing might be appropriate to clarify the nature of her upper extremity complaints.
29Dr. Klipitch ordered diagnostic tests of the applicant reported on February 16, 2022. There were findings of cervical spine mild degenerative disc disease and neural foraminal stenosis secondary to osteophyte formation, and multiple findings related to the shoulders (bilateral supraspinatus tendinosis, bilateral biceps tendinosis and left sided subscapular tendinosis, and bilateral subacromial/subdeltoid bursitis). There is no indication in Dr. Klipitch’s notes that these issues stemmed from the accident or were worsened by the accident. This is consistent with Dr. Silver’s conclusion.
30Accordingly, I find on a balance of probabilities that the applicant is not entitled to $3,114.83 for physiotherapy services as proposed in this OCF-18.
The applicant is entitled to $2,460.00 for a psychological assessment.
31I find that the applicant is entitled to $2,460.00 for a psychological assessment.
32The disputed OCF-18 in the amount of $2,460.00 proposed a psychological assessment of the applicant. This OCF-18 was denied on March 8, 2022 and the applicant obtained the s. 25 psychological assessment of Dr. Belyakova on April 6, 2022.
33The applicant submits that she exhibited enough psychological symptoms following the accident to render this OCF-18 reasonable and necessary and that the OCF-18 allowed for the investigation of the nature and extent of the applicant’s emotional and behavioural disturbances.
34The respondent relies on Dr. Gooden’s conclusion that this OCF-18 is not reasonable and necessary because the applicant does not have a DSM-5 TR diagnosis.
35A DSM-5 TR diagnosis is not required for a psychological assessment to be reasonable and necessary. The purpose of an assessment is to determine whether a condition exists. An insured 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.
36I find that the applicant complained to her family doctor of psychological symptoms related to the accident, as well as physical pain, starting in November 2021, and continuing in February 2022. In addition, the applicant repeated her psychological complaints in the clinical interview Dr. Gooden. As discussed above, Dr. Gooden’s report describes clinically significant test results although Dr. Gooden did not endorse a formal DSM-5 TR diagnosis. In my view, there are grounds to believe that the applicant had a psychological condition that warranted further investigation.
37Accordingly, I find on a balance of probabilities that the applicant is entitled to $2,460.00 for a psychological assessment.
The OCF-18 for psychological treatment is reasonable and necessary.
38I find that the OCF-18 for psychological treatment is reasonable and necessary.
39The disputed OCF-18 submitted on May 27, 2022 in the amount of $4,015.13 proposed 12 sessions of psychological therapy and time for ongoing assessment and reassessment by Dr. Belyakova.
40The applicant submitted that this OCF-18 is reasonable and necessary because it will provide the applicant with cognitive behavioral therapy to mitigate her injuries as recommended in Dr. Belyakova’s assessment.
41The respondent relies on Dr. Gooden’s conclusion that this OCF-18 is reasonable and necessary because the applicant does not have a DSM-5 TR diagnosis.
42For the reasons discussed above, I put more weight on Dr. Belyakova’s report than Dr. Gooden’s report.
43In addition, the respondent submits that the clinical notes and records do not support any ongoing psychological injury that would displace Dr. Gooden’s conclusions.
44I find the applicant’s psychology injury continued to at least January 8, 2024 based on the report of Dr. Sandhu discussing her psychological state.
45Accordingly, I find this OCF-18 reasonable and necessary.
46Therefore, I find on a balance of probabilities that the applicant is entitled to $4,015.13 for psychological treatment.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on the overdue benefits of $2,460.00 and $4,015.13 for the OCF-18s for a psychological assessment and for psychological treatment, respectively.
ORDER
48For the above reasons, I find:
i. The applicant is removed from the MIG due to a psychological condition.
ii. The applicant is entitled to the OCF-18s in dispute for a psychological assessment in the amount of $2,460.00 and for psychological treatment in the amount of $4,015.13, plus interest in accordance with s. 51 of the Schedule.
iii. The applicant is not entitled to the OCF-18 in dispute for physiotherapy services in the amount of $3,114.83.
Released: May 20, 2025
Rasha El Sissi
Adjudicator