Licence Appeal Tribunal File Number: 23-006833/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:
Jannatul Ferdous
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Alexander Makaronets, Counsel
For the Respondent:
Tebogo Fisher-Phala, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jannatul Ferdous, the applicant, was involved in an automobile accident on May 5, 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, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue in dispute is:
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?
Is the applicant entitled to $3,965.12 for physiotherapy services, proposed by Inspiration Home Therapy Clinic in a treatment plan/OCF-18 (“treatment plan”) submitted April 6, 2023?
Is the applicant entitled to the assessments proposed by All Health Medical Centre, as follows:
(i) $2,200.00 for a psychological assessment, in a treatment plan submitted January 23, 2023;
(ii) $1,942.76 for guided exercise and devices, in a treatment plan submitted May 3, 2023;
(iii) $2,160.00 for a social work assessment, in a treatment plan submitted May 10, 2023; and
(iv) $2,260.00 for a chronic pain assessment, in a treatment plan submitted October 10, 2023?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
The applicant is removed from the MIG.
The applicant is entitled to $2,200.00 for a psychological assessment for a treatment plan dated January 23, 2023.
The applicant is not entitled to $2,260.00 for a chronic pain assessment for a treatment plan dated October 10, 2023.
The applicant is not entitled to $3,965.12 for physiotherapy services for a treatment plan dated April 6, 2023.
The applicant is not entitled to $1,942.76 for a treatment plan for guided exercise and devices dated May 3, 2023.
The applicant is not entitled to $2,160.00 for a treatment plan for a social work assessment dated May 10, 2023.
The applicant is entitled to interest on any outstanding payments.
ANALYSIS
The MIG
4I find that the applicant suffers from a psychological condition that warrants her removal from the MIG.
5Section 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.”
6An 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.
7The applicant submits that she is suffering from chronic pain and a psychological condition that warrant her removal from the MIG. The applicant relies on the psychological assessment report of Dr. Betty Kershner, psychologist, dated March 21, 2024 and the chronic pain assessment of Dr. Inese Robertus, physician, of the Vaughan Pain Clinic, dated July 26, 2023.
8The respondent argues that the applicant has not met her burden to prove that her accident-related injuries are not predominantly minor. The respondent relies on the insurer’s multidisciplinary examination report (s.44 report) dated April 12, 2023, which includes a psychological assessment prepared by Dr. Terra Seon, psychologist, and a musculoskeletal assessment prepared by Dr. Amhad Belfon, physician.
Psychological Impairment
9I find that the applicant has established that she has a psychological condition that warrants her removal from the MIG.
10The applicant submits that she should be removed from the MIG, because the applicant has been diagnosed with a psychological impairment. Dr Kershner conducted a video assessment of the applicant which included psychometric testing, an interview and a review of the applicant’s records. In her March 21, 2024 report, Dr. Kershner diagnosed the applicant with Adjustment Disorder, with mixed symptoms; Sleep Disorder; and Somatic Symptom Disorder with predominant pain. Dr. Kershner recommended psychotherapy and an additional assessment of the applicant’s driving-related symptoms.
11The respondent argues that the applicant has not met her onus to prove that she suffers from a psychological impairment, because the applicant has not provided evidence that she complained of psychological symptoms to her family doctors. Additionally, in her April 24, 2023 s. 44 report, Dr. Seon opined that the applicant did not meet the criteria for a psychological diagnosis at the time of her s. 44 examination, which included psychometric testing, an in-person interview, and a review of the applicant’s medical record.
12The respondent argues that Dr. Kershner’s assessment report should be given little weight because the assessment was done virtually, and relied on self-administered psychometric testing. I disagree. I find the respondent’s contention that the applicant was “presumably” off camera for parts of the assessment, and that Dr. Kershner “likely” could only see the applicant’s head and shoulders to be speculative. Further, the psychometric testing conducted at Dr. Seon’s s.44 examination was also self-administered, and I find the testing of both examiners to have significant probative value. Therefore, I decline to afford Dr. Kershner’s assessment report less weight.
13I find Dr. Seon and Dr. Kershner’s reports to be largely consistent with each other. Although they conducted different psychometric tests, the results of both sets of examinations identified elevated to severe levels of depressive thoughts, anxiety and somatic complaints. While the respondent notes that the psychometric testing conducted by Dr. Seon indicated that the applicant “may indicate a likelihood of symptom magnification,” Dr. Seon accepted the results of the tests as valid. Dr. Seon also noted that the testing “identified an extreme level of diffuse somatic complaints,” which I find is consistent with Dr. Kershner’s diagnosis of Somatic Symptom Disorder.
14Further, the applicant’s post-accident complaints of pain, sleeping problems, loss of concentration at work, reliance on her parents for cooking and household chores and nervous driving are consistent throughout the reports of her assessors.
15Finally, the respondent argues that the applicant has not reported symptoms to her family doctor or received any psychological care since the accident. Dr. Seon places significant emphasis on the fact that the applicant had not received psychological treatment in the ten months since the accident. However, I find that the applicant has sought a psychological assessment and treatment through the OCF-18 process.
16I am persuaded by Dr. Kershner’s assessment that the applicant’s psychometric tests, history and presentation at the interview are consistent with the diagnosis of Adjustment Disorder, with mixed symptoms, Sleep Disorder, and Somatic Symptom Disorder with predominant pain.
17For the reasons above, I find on a balance of probabilities that the applicant sustained a psychological impairment as a result of the accident.
18Accordingly, the applicant is removed from the MIG. As such, it is not necessary for me to consider the applicant’s arguments with respect to chronic pain with a functional impairment.
19To 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.
20The respondent argues that none of the treatment plans are payable because the applicant has not proven that they have been incurred and relies on Applicant v. The Guarantee Company of North America,17-003906 (ONLAT), 2018 CanLII 39446. I disagree. The decision refers to an applicant’s entitlement under s. 38(11) of the Schedule, which is not relevant to this application, and is therefore not helpful to my analysis. Further, there is no requirement under s. 15 or 16 for the applicant to have incurred treatment in order to receive payment.
21Therefore, I will consider whether the treatment plans in dispute are reasonable and necessary.
Is the applicant entitled to $2,200.00 for a psychological assessment in a treatment plan dated January 23, 2023?
22The 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.
23The treatment plan, dated January 23, 2023, was prepared by Estelle Tulman, occupational therapist, and requests $2,000.00 for a psychological assessment and $200.00 in administrative costs. The goal of the treatment plan is a return to pre-accident level of functioning.
24I find that the applicant is entitled to the treatment plan for a psychological assessment dated January 23, 2023, because, for the reasons set out above, I find the medical evidence indicates that there are grounds on which to believe the applicant has a psychological condition that warrants further investigation. Further, as noted above, I have removed the applicant from the MIG due to an accident-related psychological impairment.
Is the applicant entitled to $2,260.00 for a chronic pain assessment in a treatment plan dated October 10, 2023?
25I find that the applicant is not entitled to a chronic pain assessment.
26The treatment plan, prepared by Dr. Mikail Shteynberg, chiropractor, sets out a chromic pain assessment at a cost of $2,000.00, administrative costs of $200.00, and transportation fees of $60.00 to be provided by Dr. Igor Wildeman, pain consultant. The goals of the treatment plan are: pain reduction, increased range of motion, increased strength, and a return to activities of daily living.
27The evidence reveals that the applicant was referred for a chronic pain assessment by her family doctor and was diagnosed with chronic pain syndrome by Dr. Robertus on July 26, 2023, less than three months before the treatment plan was submitted. The applicant has not directed me to other evidence in support of the treatment plan, and has not explained why an additional chronic pain assessment is indicated.
28Therefore, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary. Accordingly, the applicant is not entitled to the treatment plan for a chronic pain assessment dated October 10, 2023.
Is the applicant entitled to $3,965.12 for physiotherapy services in a treatment plan dated April 6, 2023?
29I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan in dispute is reasonable and necessary. The applicant has not submitted a copy of the treatment plan in dispute, nor has the applicant detailed the contents of the treatment plan.
30Accordingly, the applicant is not entitled to $3, 965.12 for the treatment plan for physiotherapy services dated April 6, 2023.
Is the applicant entitled to $1,942.76 for guided exercise and devices in a treatment plan dated May 3, 2023?
31I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan in dispute is reasonable and necessary. The applicant has not submitted a copy of the treatment plan in dispute, nor has she directed me to contemporaneous medical evidence which references or recommends guided exercise or devices.
32Accordingly, the applicant is not entitled to the treatment plan for guided exercise and devices dated May 3, 2023.
Is the applicant entitled to $2,160.00 for a treatment plan for a social work assessment dated May 10, 2023?
33The treatment plan, prepared by Estelle Tulman, occupational therapist, dated May 10, 2023, sets out a social work assessment at a cost of $980.00 for assessment and preparation costs, and documentation and support costs of $1,160.00. The goals of the treatment plan are: improved cognition, adjustment to emotional sequelae, improve motivation and initiation, reduce depressive effect, and return to activities of normal living.
34The applicant argues that there is a need for a social work assessment as a result of the applicant’s pain and psychological impairment. However, the applicant has not directed me to contemporaneous corroborating medical evidence in support of a social work assessment of the treatment plan. Therefore, I find that the applicant has not met her onus to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
35Accordingly, the applicant is not entitled to $2,160.00 for a social work assessment in a treatment plan dated May 10, 2023.
Interest
36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the
Schedule.
ORDER
37I find that:
The applicant is removed from the MIG.
The applicant is entitled to $2,200.00 for a psychological assessment in a treatment plan dated January 23, 2023.
The applicant is not entitled to $2,260.00 for a chronic pain assessment in a treatment plan dated October 10, 2023.
The applicant is not entitled to $3,965.12 for physiotherapy services in a treatment plan dated April 6, 2023.
The applicant is not entitled to $1,942.76 for guided exercise and devices in a treatment plan dated May 3, 2023.
The applicant is not entitled to $2,160.00 for a social work assessment in a treatment plan dated May 10, 2023.
The applicant is entitled to interest on any outstanding payments.
Released: May 29, 2026
Kathleen Wells
Adjudicator