Licence Appeal Tribunal File Number: 23-015562/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:
Amy Hamilton
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nathan Prince
APPEARANCES:
For the Applicant:
Allen Wynperle, Counsel
For the Respondent:
Annemarie White, Counsel
Nick Mahdavi, Counsel
HEARD by Videoconference:
December 16 and 17, 2024
OVERVIEW
1Amy Hamilton, the applicant, was involved in an automobile accident on May 28, 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, Security National 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:
a) Is the applicant entitled to $4,065.01 for psychological services, proposed by Baxter Antoniazzi & Associates in a treatment plan/OCF-18 (“plan”) dated March 21, 2023?
b) Is the applicant entitled to $4,055.04 for occupational therapy services, proposed by Kindree OT Services in a plan dated April 17, 2023?
c) Is the applicant entitled to the services proposed by Motion Physio as follows:
i. $3,960.40 for physiotherapy services, in a plan dated August 4, 2023; and
ii. $2,464.00 for transportation, in a plan dated August 29, 2023?
d) Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
e) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to the plans for psychological services in the amount of $4,065.01, occupational therapy services in the amount of $2,993.04, and physiotherapy services in the amount of $3,960.40, plus interest.
4The applicant is not entitled to the plan for transportation in the amount of $2,464.00.
5The applicant is not entitled to an award.
PROCEDURAL ISSUES
Applicant’s motion to exclude the s. 44 report of Dr. Amena Syed is denied
6The applicant sought to have the s. 44 report of Dr. Syed excluded from evidence on the basis that her clinical notes and records (“CNRs”) were not produced as required by the May 24, 2024 Case Conference Report and Order (“CCRO”). The applicant argued that failure to produce the CNRs was highly prejudicial.
7The respondent submitted that it tried to obtain Dr. Syed’s CNRs on several occasions; however, it never received a response to its requests. It submitted that it had complied with CCRO as it had made best efforts to obtain the CNRs. Furthermore, it submitted that exclusion of the report would be highly prejudicial as it is the very basis upon which they denied the applicant’s plan for psychological services.
8The applicant’s motion to exclude Dr. Syed’s report is denied. Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 permits the Tribunal to admit at a hearing any document or thing that is relevant to the subject-matter of the hearing. I find Dr. Syed’s report to be relevant in that it speaks to the applicant’s psychological impairments. Furthermore, I find that exclusion of the report would be highly prejudicial to the respondent and any potential prejudice to the applicant can be cured by assigning appropriate weight to the report.
ANALYSIS
The applicant is entitled to $4,065.01 for psychological services
9I find that the applicant has demonstrated on a balance of probabilities that the plan for psychological services is reasonable and necessary.
10To receive payment for a treatment and assessment plan 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.
11The March 21, 2023 plan completed by Dr. Bruce Baxter, psychologist, seeks funding for 16 psychotherapy sessions, educational material, clinical progress review, claim form completion, and service planning. The goals of the plan are improved management of stressors and emotional symptoms associated with the applicant’s injury and reduced functioning. The functional goals of treatment are identified as the return to activities of normal living.
12The applicant submits that she suffers from ongoing psychological impairments as a result of the accident and relies upon the s. 25 psychological assessment report of Dr. Baxter and the s. 25 psychological/mental health and neurocognitive assessment of Dr. Erin Warriner, clinical psychologist.
13Dr. Warriner diagnosed the applicant with Mild Neurocognitive Disorder in her report dated April 17, 2022. Dr. Baxter, in his report dated March 24, 2023, diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (Motor Vehicle Travel). Dr. Baxter further noted that the applicant’s psychological distress had worsened in the year since Dr. Warriner’s assessment because she presented with increased symptoms of anxiety and depression, diminished self-confidence, and increased passivity. Both Dr. Warriner and Dr. Baxter recommended regular psychological treatment to support the applicant’s recovery.
14The respondent submits that the applicant does not suffer from any accident-related psychological impairment and relies on the s. 44 psychological report of Dr. Syed wherein she opined that the applicant does not suffer from any DSM diagnosis and, therefore, the plan for psychological services is not reasonable and necessary. In addition, the respondent submitted that any psychological impairments are pre-existing conditions, and relies on the CNRs of Locke Psychotherapy Group in support of this position.
15In weighing the reports of Dr. Warriner and Dr. Baxter against the report of Dr. Syed, I place greater weight on Dr. Warriner’s and Dr. Baxter’s reports for the following reasons:
a) I find that the reports of Dr. Warriner and Dr. Baxter align with the testimony provided by the applicant, and I found the applicant to be a credible witness. The applicant testified that she feels shame that she is no longer able to practice as a bedside nurse. She testified that she has returned to work full-time as a care coordinator; however, it has been an arduous journey and she has struggled to meet the demands of her employment which has been frustrating and left her feeling sad and disheartened. She further testified that she has withdrawn from social activities and hobbies noting that her friendships have deteriorated and that she no longer participates in many of her pre-accident hobbies including jogging, kayaking, tennis, and pickleball. I found that the applicant’s testimony was persuasive and consistent with the information that she provided to Dr. Warriner and Dr. Baxter and therefore find their reports to be reliable;
b) I find that the reports of Dr. Warriner and Dr. Baxter are supported by the CNRs of the applicant’s treating clinic, Locke Psychotherapy Group. For example, the CNRs discuss how the applicant has “not been doing well” and is in a vulnerable spot as a result of the accident, that she is frustrated and overwhelmed by denials from her insurer, and that she has been worrying excessively about her job security and her inability to return to her pre-accident functioning.
c) I find that the report of Dr. Syed is inconsistent with the reporting provided by the applicant. Dr. Syed’s report indicates that the applicant denied feeling sad or depressed; however, the applicant disputed this during her testimony stating that this was not an accurate representation of what she reported to Dr. Syed. I am persuaded by the applicant’s submission that the report is inaccurate as it outlines several psychological symptoms including stress, crying spells, excessive worry, anhedonia, sleep disturbances, fatigue, driving anxiety, and passenger anxiety which would be in line with the applicant’s assertion that she is feeling sad and depressed. Furthermore, Dr. Syed’s report is an outliner and is not consistent with the remainder of the assessor reports or the applicant’s testimony, which as previously stated, I found to be reliable; and
d) I place less weight on Dr. Syed’s report because she failed to provide copies of her CNRs to the applicant. As discussed in the procedural issues section above, Dr. Syed failed to provide her CNRs and therefore there are no records to corroborate her assertion that the applicant denied feeling sad or depressed.
16The respondent further relies on the CNRs of Locke Psychotherapy Group and submits that these records show that the applicant’s psychological impairments are not accident related. The applicant began attending Locke Psychotherapy Group in 2020, the year before the accident. The applicant testified that this therapy was recommended and arranged through her work and was offered to all nurses at her workplace to assist with overcoming the significant challenges and pressures that nurses were under during the pandemic. The pre-accident CNRs indicate that the applicant largely discussed her work and personal relationships during these sessions. The respondent submits that the post-accident CNRs are focussed on the same issues as the pre-accident CNRs, and it argues that this supports the position that the applicant’s psychological impairments are not accident related.
17The test to determine causation is the “but for” test: See Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, the applicant must show that “but for” the accident, the applicant would not have suffered the injuries. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.
18I find that the accident was a necessary cause of the applicant’s psychological impairments. While the post-accident CNRs of Locke Psychotherapy Group continued to discuss work and personal relationships, there are many examples throughout the CNRs of how the accident has impacted the applicant’s life and relationships. For example, as previously noted above, the CNRs discuss how the applicant has “not been doing well” and is in a vulnerable spot as a result of the accident, that she is frustrated and overwhelmed by denials from her insurer, and that she has been worrying excessively about her job security and her inability to return to her pre-accident functioning. While I am alive to the fact that there is overlap between some of the pre and post accident issues, I find that the CNRs of Locke Psychotherapy Group support the position that the applicant is suffering from psychological impairments that are accident related because there are new issues that have arisen in the CNRs which are directly attributable to the accident.
19Based on the foregoing, I find that the applicant has demonstrated on a balance of probabilities that she is entitled to the plan for psychological services in the amount of $4,065.01.
The applicant is entitled to $2,993.04 for occupational therapy services
20I find that the applicant has demonstrated on a balance of probabilities that the plan for occupational therapy services is reasonable and necessary, in part. I find that the occupation therapy portion of the plan is reasonable and necessary; however, the provider travel time and mileage is not reasonable and necessary.
21The April 17, 2023 plan completed by Cheryl Hendry of Kindree Occupation Therapy Professional Corporation (“Kindree”) seeks funding for eight sessions of training, cognition, and learning; provider travel time and mileage; preparation; planning; and documentation. The plan indicates that the goals of ongoing occupational therapy are to assist with return to work and support participation in meaningful daily activities. Ms. Hendry opines that occupational therapy services are recommended during the applicant’s return-to-work as she is at increased risk of functional regression, secondary injury/impairment, development of maladaptive coping strategies, and reduced success.
22I found the applicant to be a credible witness and found her testimony regarding her return-to-work attempts to be persuasive. The applicant testified that she has had numerous struggles meeting the demands of her employment. Since the accident, the applicant has held no less than four positions. Her original attempts at returning to work involved being a bedside nurse; however, she was unable to maintain such a role due to the physical and cognitive demands of the jobs. In September 2023, the applicant transitioned to a care coordinator position which she testified was less physically demanding; however, she noted that she was still struggling with adapting to the cognitive challenges of the job. The applicant testified that she continued to suffer from memory issues as well as impairments to concentration and focus which were hindering her ability to complete tasks at work.
23In denying the plan, the respondent relied upon the February 22, 2024 section 44 report of Mr. Atul Kaul, occupational therapist. A copy of this report, however, was not included with the respondent’s submissions. Therefore, I put little weight on the brief synopsis contained in the respondent’s denial letter to the applicant in which the respondent notes that Mr. Kaul opined that the plan was not reasonable and necessary as the applicant had returned to work as of September 2023 on a full-time basis and therefore the rationale for the plan had already been attained.
24While I am alive to the fact that the applicant has returned to work on a full-time basis post-accident, I find that she continues to struggle with re-integration into the work force. The applicant has changed positions several times, and I find that the evidence before me suggests that she continues to struggle with day-to-day work-related challenges. The CNRs of Kindree indicate that, since taking on her position as a care coordinator in September 2023, the applicant has reported on several occasions that she needs assistance and is having difficulty managing at work. I find the CNRs of Kindree are consistent with the applicant’s testimony, and I am persuaded that the applicant continues to suffer from impairments which are impacting her ability to work.
25Furthermore, the goal of the plan is to assist with the applicant’s return to work. I find that this goal is not met by merely attaining full-time employment as suggested by the respondent. Instead, I find that the plan seeks to assist the applicant with meeting the ongoing challenges of her job which extend well past procurement of the position. As such, despite already working full-time, I find that the applicant has demonstrated that the plan for occupational therapy is reasonable and necessary.
26However, while I find that the occupational therapy component of the plan is reasonable and necessary, I find that the provider travel time component of the plan totalling $1,062.00 is not reasonable and necessary. Pursuant to section 15(2)(c) of the Schedule, the respondent is not liable to pay medical benefits for transportation expenses other than authorized transportation expenses. Section 3(1) of the Schedule defines “authorized transportation expenses” as expenses related to transportation:
a) That are authorized by, and calculated by applying the rates set out in the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario (“FSCO”), and
b) That unless the insured person sustained a catastrophic impairment as a result of the accident, relate to transportation expenses incurred only after the first 50 kilometres of a trip.
27The applicant did not make any submissions as to why the travel expenses outlined in the plan were compliant with s. 15(2)(c) and s. 3(1) of the Schedule. Therefore, I find that the applicant has not met her burden in demonstrating that she is entitled to this benefit.
28As such, I find that the applicant is entitled to the plan for occupational therapy services in the amount of $2,993.04 ($4,055.04 less $1,062.00 for the travel expense portion of the plan) .
The applicant is entitled to $3,960.40 for physiotherapy services
29I find that the applicant has demonstrated on a balance of probabilities that the plan for physiotherapy services is reasonable and necessary.
30The plan completed by Victoria Jelilyan, physiotherapist, of Motion Physio seeks 24 ninety-minute physiotherapy treatment sessions. The goals of treatment are listed as pain reduction, increased range of motion, increase in strength, decreased dizziness, increased balance, and increased activity tolerance with the functional goals of returning to activities of normal living and pre-accident work activities.
31The applicant relies on the initial assessment report and the rebuttal report dated March 30, 2023 and October 16, 2023 respectively, of Ms. Jelilyan to support her position that the plan is reasonable and necessary. Ms. Jelilyan notes that the applicant suffers from numerous impairments including vestibular dysfunction, dizziness, headaches, nausea, balance limitations, changes in vision, neck pain, bilateral shoulder pain, right hip pain, and low back pain.
32The respondent relies on the s. 44 reports conducted by Dr. David Berbrayer, physiatrist, and Dr. Nagib Yahmad, neurologist, to support their position that the plan is not reasonable and necessary. Dr. Berbrayer opined that further physiotherapy treatment would not provide any additional benefits in the management of the applicant’s soft tissue injuries and therefore the plan was not reasonable and necessary. Dr. Yahmad opined that, from a strict physical neurological perspective, the applicant does not suffer from any neurologic impairment and therefore the plan is not reasonable and necessary.
33In weighing the reports of Dr. Berbrayer and Dr. Yahmad against the reports of Ms. Jelilyan, I place greater weight on Ms. Jelilyan’s report for the following reasons:
a) The applicant’s reporting of impairments to all assessors and her testimony during the hearing has remained consistent, and I find it to be reliable. As such, I find that the applicant’s testimony supports the position that she suffers from dizziness, headaches, nausea, balance limitations, changes in vision, neck pain, bilateral shoulder pain, right hip pain, and low back pain;
b) Ms. Jelilyan spent a significant amount of time with the applicant, not just during her assessment, but also as one of her treating practitioners. I find that there are a significant number of contemporaneous CNRs from Ms. Jelilyan and her colleagues at Motion Physio which indicate that the applicant was engaged in treatment for the various impairments listed above; and
c) With respect to balance and vestibular dysfunction, Ms. Jelilyan conducted several assessments and found that, while the applicant is not at risk of falling, there are areas of challenge with dynamic, faster-paced and higher-demand activities that require coordination, speed, and vestibular skills. Ms. Jelilyan goes on to opine that the applicant’s vestibular impairments are impacting her ability to participate in pre-accident activities of daily living, sports, and recreational activities. Neither Dr. Berbrayer nor Dr. Yahmed conducted any vestibular or balance testing to rebut the findings of Ms. Jelilyan. As such, I am persuaded that the applicant suffers from ongoing balance and vestibular impairments which are resulting in functional impairments.
34As a result of the foregoing, I am persuaded on a balance of probabilities that the plan for physiotherapy is reasonable and necessary.
The applicant is not entitled to $2,464.00 for transportation
35I find that the applicant has not demonstrated on a balance of probabilities that the plan for transportation is reasonable and necessary.
36The August 29, 2023 plan completed by Ms. Jelilyan seeks provider travel expenses for the physiotherapy services discussed above. The plan seeks funding for 24 travel trips during a 12-week period at a rate of $99.75 per hour. The travel expense is for the treatment provider to attend at the applicant’s work where she has access to a gym in which she could receive physiotherapy treatment.
37The applicant submitted that this transportation expense was reasonable and necessary because her work schedule does not allow her to attend physiotherapy treatment at Motion Physio.
38As previously noted, pursuant to section 15(2)(c) of the Schedule, the respondent is not liable to pay medical benefits for transportation expenses other than authorized transportation expenses as defined in section 3(1) of the Schedule.
39The applicant did not make any submissions regarding whether the rate of $99.75 per hour for transportation in the plan is in line with transportation expense guideline published by the FSCO. Furthermore, the applicant did not make submissions regarding whether the distance travelled from Motion Physio to the applicant’s place of work was greater than 50km. As such, the applicant has not met her burden of demonstrating that the travel expenses being sought comply with the s. 15(2)(c) and s. 3(1) of the Schedule.
40As I have found the plan to be non-compliant with the Schedule, it is therefore not reasonable and necessary.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
42Given that I have found that there are overdue benefits, interest is payable from the date the payments became overdue to the date that the benefit is paid.
Award
43The 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.
44The applicant did not make any submissions or provide any particulars with respect to her claim for an award. As such, I find that she has not met her burden and no award is payable.
ORDER
45For the reasons outlined above, I find:
i. The applicant is entitled to the following plans:
a. $4,065.01 plus interest for psychological services;
b. $2,993.04 plus interest for occupational therapy services; and
c. $3,960.40 plus interest for physiotherapy services;
ii. The applicant is not entitled to the plan for transportation in the amount of $2,464.00; and
iii. The applicant is not entitled to an award.
Released: February 4, 2025
Nathan Prince
Adjudicator