Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-006514/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:
Sharon Campbell, Applicant
and
Intact Insurance Company, Respondent
DECISION
ADJUDICATOR: Leo Demarce
APPEARANCES:
For the Applicant: Alexei Antonov, Counsel
For the Respondent: Sin Ying (Olivia) Cheng, Counsel
HEARD: By way of written hearing
OVERVIEW
1Sharon Campbell, the applicant, was involved in an automobile accident on January 21, 2022, 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, Intact 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 limit? Note: The parties agree the MIG limits have not been exhausted.
ii. Is the applicant entitled to $2,486.00 for an attendant care assessment, proposed by Downsview Healthcare Inc. in an OCF-18/treatment plan ("plan") dated May 16, 2022?
iii. Is the applicant entitled to $2,486.00 for psychological assessment, proposed by Downsview Healthcare Inc. in a plan dated June 14, 2022?
iv. Is the applicant entitled to $4,204.32 for psychological services, proposed by Downsview Healthcare Inc. in a plan dated February 22, 2023?
v. Is the applicant entitled to $2,527.52 for physiotherapy services, proposed by Markham Health Network in a plan dated June 1, 2022?
vi. Is the applicant entitled to $454.25 for a lumbar back brace, proposed by Markham Health Network in a plan dated September 7, 2022?
vii. Is the applicant entitled to $2,459.72 for physiotherapy services, proposed by Markham Health Network in a plan dated November 3, 2022?
viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
3Issue (ii) above was modified from the CCRO to state that it is an attendant care assessment as opposed to a treatment plan for other goods and services.
4Issue (iii) above was modified from the CCRO to state that it is a psychological assessment as opposed to a treatment plan for psychological services.
5Issue (vi) above was modified from the CCRO to state that the treatment was for a lumbar back brace as opposed to other goods and services.
RESULT
6I find that the applicant has demonstrated that her injuries are not predominantly minor and is therefore not subject to the MIG limits.
7The applicant is entitled to the following assessments proposed by Downsview Healthcare Inc.:
i. $2,486.00 for an attendant care assessment in a plan dated May 16, 2022; and
ii. $2,486.00 for a psychological assessment in a plan dated June 14, 2022.
8The applicant is entitled to $4,204.32 for psychological services, proposed by Downsview Healthcare Inc. in a plan dated February 22, 2023.
9The applicant is entitled to the plans proposed by Markham Health Network as follows:
i. $2,527.52 for physiotherapy services in a plan dated June 1, 2022;
ii. $454.25 for other assistive devices in a plan dated September 7, 2022; and
iii. $2,459.72 for physiotherapy services in a plan dated November 3, 2022.
10The respondent is not liable to pay an award under s. 10 of Reg. 664.
11The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Minor Injury Guideline – the applicant is removed from the MIG due to a psychological impairment and chronic pain
Psychological impairment
12The applicant has demonstrated that she is to be removed from the MIG due to a psychological condition. I find that the applicant has an accident-related diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational Type (Vehicular: driver, passenger), Moderate-to-Severe level of severity.
13Section 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."
14An 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 injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury 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.
15The applicant submits that, based on the psychological report of Dr. Brunshaw, psychologist, dated January 24, 2023, the applicant suffers from a psychological condition as a result of the accident. Dr. Brunshaw's diagnosis for the applicant is Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational Type (Vehicular: driver, passenger), Moderate-to-Severe level of severity. The applicant submits that this diagnosis removes the applicant from the MIG.
16Dr. Brunshaw further concludes that the issues include the applicant's fear and anxiety when travelling in vehicles, physical and emotional limitations, and impairments in her mood. Additionally, Dr. Brunshaw reports that Ms. Campbell is experiencing sleep difficulties, an increase in her appetite, weight gain, decreased energy, social isolation, and a loss of motivation and desire to participate in previously enjoyed activities.
17Furthermore, the report states that these psychological and emotional difficulties are in large part a direct consequence of the applicant's physical condition. As long as her physical condition, along with its pain and restrictions remain present, it is likely that the applicant will experience significant emotional distress.
18The respondent denies that the applicant is suffering from a psychological condition as a result of the accident. It relies on the findings of Dr. Mehdi Lotfalizadeh's psychological assessment dated July 20, 2023. In this report, Dr. Lotfalizadeh, psychologist, disagrees with the findings of Dr. Brunshaw because her report did not include valid psychometric measures to assess the possibility of symptom exaggeration. The respondent argues that Dr. Lotfalizadeh's findings should be preferred over Dr. Brunshaw as his findings included a Structured Inventory of Malingered Symptomatology ("SIM") measure to validate the finding that the applicant is not suffering from a psychological impairment due to the accident. The respondent argues that the findings of Dr. Lotfalizadeh should be given more weight than the findings of Dr. Brunshaw.
19The respondent further supports its position based on the psychological report of Dr. Sedigheh Naisi, psychologist, dated September 11, 2024. In the report, Dr. Naisi opines that the applicant has not sustained any psychological impairment as a result of the accident.
20I give more weight to the applicant's report and diagnosis from Dr. Brunshaw because:
i. The psychological report by Dr. Brunshaw included a clinical interview, and multiple psychological self-report questionnaires; and
ii. Dr. Loftalizadeh does not agree with the report from Dr. Brunshaw as it does not include any valid psychometric measure to assess the possibility of symptom exaggeration. However, Dr. Brunshaw's report includes behavioural observations that the applicant appeared honest and straightforward throughout the session, and that there is no reason to assume that she was anything but truthful in her responses.
iii. Dr. Wong, the family physician included on June 16, 2022 that he wasn't sure if the applicant had a psychological issue who recommended that the applicant do a psychological questionnaire.
21As a result of the diagnosis of Dr. Brunshaw, I find that the applicant has a psychological impairment of Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia, Situational Type (Vehicular: driver, passenger), Moderate-to-Severe level of severity.
22I find on a balance of probabilities that the applicant has a psychological condition that removes her from the MIG.
Chronic Pain
23I find that the applicant has demonstrated on a balance of probabilities that she is diagnosed with chronic pain with a functional impairment. The applicant did not formally argue to have the applicant removed from the MIG based on chronic pain, but did point to the applicant's chronic pain syndrome throughout the applicant's submissions. I have established the applicant's diagnosis for chronic pain as it is relevant to the applicability of the necessity and reasonableness of the treatment plans in dispute.
24In the absence of a diagnosis of chronic pain from a chronic pain specialist, the Tribunal has adopted the criteria as set out in the American Medical Association's Guides ("AMA Guides") as an interpretive tool for chronic pain claims. Under the AMA Guides, an applicant must provide evidence that they meet three of the six criteria to establish they are suffering from chronic pain.
25Criteria for Diagnosis: At least three of the following must be met:
i. Use of prescription drugs beyond recommended duration.
ii. Excessive dependence on healthcare providers, spouse, or family.
iii. Secondary physical deconditioning.
iv. Withdrawal from social, work, or recreational activities.
v. Failure to restore pre-injury function.
vi. Development of psychosocial symptoms (anxiety, depression).
26I find that the applicant has demonstrated that they are suffering from chronic pain due to criterion i, ii, and vi.
i. Criterion (i) - Based on the clinical notes and records of Dr. Wong and the prescription summary, the applicant continues to receive medication such as Amitriptyline, Acetaminophen, Escitalopram, and Naproxen for pain relief.
ii. Criterion (ii) - The applicant has been in attendance to the Markham Health Network a minimum of 2 times per month from January of 2022 to May of 2023 due to pain.
iii. Criterion (vi) – The applicant has been diagnosed with a psychological impairment. The report of Dr. Brunshaw states that these psychological and emotional difficulties are in large part a direct consequence of the applicant's physical condition. As long as her physical condition, along with its pain and restrictions remain present, it is likely that the applicant will experience significant emotional distress.
27The respondent did not make submissions regarding chronic pain specifically; however, the respondent has relied on 7 insurer examinations that point to the applicant's injuries and psychological impairments as minor.
28The respondent does submit that the existence of a pre-existing condition will not automatically exclude a person's impairment from the MIG. It is intended and expected that the vast majority of pre-existing conditions will not do so.
29I find that the respondent's argument regarding the applicant's pre-existing injury is not relevant as I have removed the applicant from the MIG based on a psychological impairment.
30I find that the applicant has demonstrated on a balance of probabilities and based on the AMA Guides that she is diagnosed with chronic pain with a functional impairment.
Assessments – the applicant is entitled to the assessments proposed
Attendant Care Assessment
31I find that the applicant has demonstrated on a balance of probabilities that she is entitled to $2,486.00 for an attendant care assessment proposed by Downsview Healthcare Inc. in a plan dated May 16, 2022.
32To 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
33The 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.
34The applicant submits that she has been suffering from physical and psychological impairments as outlined in the findings of Dr. Brunshaw. Due to this psychological impairment the treatment plan is necessary, and the cost is reasonable as it is in line with industry standards. The treatment plan's goal is to determine the needs for attendant care and to ultimately return to activities of normal living. Dr. Brunshaw's report also states that the applicant's physical condition is contributing to the applicant's emotional distress.
35The respondent submits the applicant has failed to prove that the treatment plans are reasonable and necessary because they have not presented any submissions or evidence to the Tribunal in support of the disputed treatment plans. The respondent also relies on the reports of:
i. Dr. Frank Loritz, general practitioner, assessment dated July 12, 2022;
a. That the applicant sustained myofascial sprain/strain injuries to her cervical spine and axial spine, and a contusive injury to her right-sided chest wall. These injuries were deemed to meet the criteria of a minor injury.
ii. Dr. Frank Loritz, general practitioner, paper review dated December 2, 2022;
a. Opinion is unchanged.
iii. Dr. Ahmed Mian, general practitioner, assessment dated July 26, 2024;
a. That the applicant sustained benign soft tissue myofascial injuries as a result of the accident.
iv. Dr. Mehdi Lotfalizadeh, psychologist, psychological assessment dated January 16, 2023
a. the Applicant did not suffer from any diagnosable psychological disorder as per DSM-5 in relation to the MVA. Dr. Lotfalizadeh further commented that there were no concurrent or pre-existing psychological conditions/impairments reported by the Applicant or found in the relevant documents reviewed.
v. Dr. Mehdi Lotfalizadeh, psychologist, psychological addendum report dated March 29, 2023;
a. Upon receipt of new medical records hi opinion remained unchanged.
vi. Dr. Mehdi Lotfalizadeh, psychologist, psychological assessment report dated July 20, 2023
a. found there to be no diagnosable psychological disorder in relation to the subject MVA as per the DSM-5 criteria.
36In the applicant's reply submissions, the applicant points to the respondent's submissions at paragraph 16, where the respondent states that the applicant is diagnosed with a benign soft tissue myofascial injury. This diagnosis is from Dr. Mian dated July 17, 2024 which is approximately 2.5 years post accident. The applicant submits that this is indicative of the applicant's chronic condition, that if the injury were minor it would have resolved itself within 6 months of the accident, and not been able to be diagnosed 2.5 years later.
37The goal of the assessment is to determine the future needs for attendant care required by the applicant as a result of the accident. This assessment will determine interventions which include patient education and lifestyle modification which will be made to encourage patient independence with their activities of daily living. Recommendations for assistance and assistive devices will also be made.
38I find that the applicant has met the burden of demonstrating that the assessment is reasonable and necessary. The evidence demonstrates that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment. The applicant has proven that she was diagnosed with a psychological impairment as a result of the accident. The applicant further points to evidence in their submissions that the applicant made numerous complaints of physical pain over a span of 2.5 years as shown in the clinical notes and records from:
i. Dr. Gabriel Wong;
ii. Humber River Hospital; and
iii. Markham Health Network.
39I find that the applicant has proven on a balance of probabilities that she is entitled to $2,486.00 for an attendant care assessment proposed by Downsview Healthcare Inc. in a plan dated May 16, 2022.
Psychological Assessment denied
40I find that the applicant is not entitled to $2,486.00 for a psychological assessment proposed by Downsview Healthcare Inc. in a plan dated June 14, 2022.
41The psychological report by Dr. Brunshaw, psychologist, dated January 24, 2023 diagnosed the applicant with a psychological impairment, specifically: Adjustment Disorder with Mixed Anxiety and Depressed Mood; Specific Phobia, Situational Type (Vehicular: driver, passenger), Moderate-to-Severe level of severity.
42In this report Dr. Brunshaw recommends 14 counselling sessions and a psychotherapy progress report (as needed). The counselling sessions are to focus on alleviating her fear and anxiety of being in vehicles, build confidence, and reduce recurrent distressing thoughts.
43The goal of the psychological assessment is to evaluate the client's psychological and emotional repercussions following the motor vehicle accident.
44Progress on this assessment will be evaluated as follows:
i. If it is determined that any psychological problems may have been caused by the accident or if psychological barriers to recovery exist, the psychologist will explore whether treatment may be of benefit to the client. The details of the evaluation will be shared with the treating provider who will monitor the patient's progress, at which time further recommendations can be made. If necessary, a follow up psychological evaluation will take place following relevant therapeutic intervention.
45It is already determined that the applicant has a psychological impairment, and that there is a plan recommended for psychological treatment. This renders the goals of the psychological assessment proposed by Downsview Healthcare Inc. dated June 14, 2022 to be redundant, and therefore not necessary.
46I find that the applicant is not entitled to $2,486.00 for a psychological assessment proposed by Downsview Healthcare Inc. in a plan dated June 14, 2022 as it is redundant and not necessary.
Psychological services approved
47I find that the applicant has demonstrated on a balance of probabilities that she is entitled to $4,204.32 for psychological services, proposed by Downsview Healthcare Inc. in a plan dated February 22, 2023.
48The respondent takes the position that the applicant has not met their burden of proof because they did not point to any submissions or evidence to support the reasonableness or necessity of the disputed treatment plans.
49I have found that the applicant suffers from a psychological impairment, and that the report from Dr. Brunshaw, psychologist, dated January 24, 2023 provided a recommendation for 14 counselling sessions. This treatment plan recommends 14 counselling sessions and supporting documentation. The goal of the treatment plan is in alignment with the recommendations outlined by this report.
50I find this treatment plan is reasonable and necessary because the applicant has proven that she has a psychological impairment and the treatment plan is tailored to the applicant's recovery and ultimately a return to activities of normal living.
Physiotherapy services and other assistive devices approved
51I find that the applicant is entitled to the plans proposed by Markham Health Network as follows:
i. $2,527.52 for physiotherapy services in a plan dated June 1, 2022.
ii. $454.25 for other assistive devices (lumbar back brace) in a plan dated September 7, 2022.
iii. $2,459.72 for physiotherapy services in a plan dated November 3, 2022.
52The applicant submits that the treatment plans for physiotherapy and assistive devices are reasonable and necessary because the applicant has been suffering with low back pain, sprain and strain of thoracic spine, lumbar spine, sacroiliac joint, ribs and sternum, Cervicalgia, and pain in thoracic spine as outlined in the clinical notes and records of Dr. Gabriel Wong, Humber River Hospital, and Markham Health Network. Dr. Brunshaw's report also determined that the applicant's psychological injuries are in large part a direct consequence of her physical condition.
53The goals of the physiotherapy treatment plans and the lumbar back brace are to reduce pain and increase strength and range of motion. The applicant submits that the goal of pain reduction which increases range of motion and improves quality of life by allowing the applicant to work and resume her activities of daily living is a reasonable and necessary treatment goal, as cited in O'connor v. Aviva General Insurance Company, 2022 CanLII 59511 (ON LAT). The applicant further submits that it is well-settled that pain relief is a legitimate goal for treatment and sufficient grounds to award payment for same, as cited in N.K. v. Aviva Insurance Company, 2020 CanLII 30390 (ON LAT).
54The respondent takes the position that the applicant has not met their burden of proof because they did not point to any submissions or evidence to support the reasonableness or necessity of the disputed treatment plans.
55The applicant submits that
i. "[t]he goal of pain reduction which increases range of motion and improves quality of life by allowing the applicant to work and resume her activities of daily living is a reasonable and necessary treatment goal" The applicant relies on O'Connor v. Aviva General Insurance Company, 2022 CanLII 59511.
ii. "it is well-settled that pain relief is a legitimate goal for treatment and sufficient grounds to award payment for same where chronic pain affects an individual." The applicant relies on N.K. v. Aviva Insurance Company, 2020 CanLII 30390.
56The goals of the physiotherapy treatment plans and the lumbar device are to reduce pain, increase range of motion and increase strength to assist in the applicants recovery and ultimately to return to activities of normal living.
57I find that the applicant has met their burden of proof and has established that the applicant has ongoing pain as a result of the accident because:
i. The applicant has been attending to Markham Health Network for chiropractic and physiotherapy services on what appears to be a weekly basis following the accident.
ii. The applicant has numerous complaints of pain as stated in the clinical notes and records of Dr. Gabriel Wong, Humber River Hospital, Markham Health Network, and Dr. Brunshaw's report.
iii. Dr. Mian's report stating that the applicant is diagnosed with a soft tissue injury 2.5 years post accident as stated in paragraph 21 above, that should have been resolved 2 years earlier.
58I find that the treatment plans are reasonable and necessary because the applicant has established that she is diagnosed with chronic pain and that these treatment plans are focused on reducing that pain.
59I find that the applicant is entitled to the plans proposed by Markham Health Network as follows:
i. $2,527.52 for physiotherapy services in a plan dated June 1, 2022.
ii. $454.25 for other assistive devices (lumbar back brace) in a plan dated September 7, 2022.
iii. $2,459.72 for physiotherapy services in a plan dated November 3, 2022.
Interest granted
60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on all overdue benefits.
Award denied
61The applicant seeks an award in this matter because the insurer unreasonably withheld payments from the applicant for various Medical and Rehabilitation Benefits by failing to give reasonable consideration to all the information available to it while adjusting the applicant's claim.
62Under 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. The Tribunal has long held that in determining whether an insurer's conduct in withholding or denying a benefit warrants an award, an insurer's behaviour must be seen as "excessive, imprudent, stubborn, inflexible, unyielding, or immoderate". The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets these criteria.
63The applicant submits that the respondent only considered the conclusions reached in its s.44 examination reports in denying said benefits, closing its mind to an abundance of other medical evidence in its possession which ought to have reasonably affected its determinations, and which clearly served as contrary evidence.
64The respondent submits that contrary to the applicant's argument, that the respondent arranged either in-person examinations and/or addendums to address the treatment plans denied, including 3 GP reports and 4 psychological reports cited in their submissions.
65I find that the respondent's behaviour did not result in unreasonably withholding or delay of the payment of benefits because it relied on expert opinions, which it is entitled to do, and as a result the request for an award under s. 10 is denied.
ORDER
66I find that the applicant has demonstrated that her injuries are not predominantly minor and is therefor not subject to the MIG limits.
67The applicant is entitled to $2,486.00 for an attendant care assessment proposed by Downsview Healthcare Inc.in a plan dated May 16, 2022.
68The applicant is not entitled to $2,486.00 for a psychological assessment proposed by Downsview Healthcare Inc.in a plan dated June 14, 2022
69The applicant is entitled to $4,204.32 for psychological services, proposed by Downsview Healthcare Inc. in a plan dated February 22, 2023.
70The applicant is entitled to the plans proposed by Markham Health Network as follows:
i. $2,527.52 for physiotherapy services in a plan dated June 1, 2022;
ii. $454.25 for other assistive devices in a plan dated September 7, 2022; and
iii. $2,459.72 for physiotherapy services in a plan dated November 3, 2022.
71The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
72The applicant is entitled to interest on any overdue payment of benefits.
Released: March 4, 2026
Leo Demarce Adjudicator