Huber v. Allstate (“Huber”) involved an accident benefits dispute before the Licence Appeal Tribunal (the “LAT”) related to a motor vehicle collision, which occurred on November 6, 2019. The issues in dispute were: (a) whether the applicant suffered a “minor injury,” in accordance with section 3 of the Statutory Accident Benefits Schedule (the “SABS”); (b) whether the applicant was entitled to psychological services in the amount of $3,841.09; and (c) whether the applicant was entitled to psychological assessment in the amount of $2,486. Additionally, the applicant further sought interest and an award under section 10 of O. Reg 664 due to the insurer unreasonably withholding or delaying payment to the applicant.
The LAT determined that the applicant sustained a chronic pain impairment and a psychological impairment that exceeded the definition of a minor injury under the SABS. The LAT further determined that the applicant was entitled to the amounts related to both the psychological services and the psychological assessment which were sought. The LAT also determined that the applicant was also entitled to interest, pursuant to section 51 of the SABS.
- The Minor Injury Guideline
The LAT notes thatunder the Minor Injury Guideline (the “MIG”), a “minor injury” includes “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration subluxation, and includes any clinically associated sequelae to such injury.” Such minor injuries are subject to a limit of $3,500 for treatment, as per section 18(1) of the SABS.
The respondent insurer relied upon the opinions of orthopaedic surgeon Dr. Saplys and psychologist Dr. Saunders, both dated June 2021. Both of these assessors determined there was “no evidence which supports a functional impairment related to either physical or psychological symptoms that could not be treated under the MIG.”
The applicant submitted that both insurer examinations were completed without the doctors reviewing the clinical notes and records of a Dr. Mang and Dr. Langis. These records had been sent over to the respondent insurer by e-mail on April 23, 2021, but they were not forwarded to the respondent’s assessors. The applicant also submitted a signed OCF-5 form, permitting the insurer to obtain updated medical information.
Both of the insurer’s assessors completed their assessments without considering the following details:
i. Dr. Mang noted, on April 21, 2020, that the pain “is continuous and now chronic”;
ii. Dr. Mang further noted in July 6, 2020, that the applicant was “having meltdowns every day – there is pain in both shoulders,” and that the applicant was experiencing flare-up of pre-existing osteoarthritis, which was in remission prior to the accident;
iii. the referral to Dr. Karasik, a treating rheumatologist; and
iv. Dr. Langis’ finding that the applicant’s psychological impairment was “significant enough to conclude that she does not fall under the Minor Injury Guideline.”[1]
The LAT determined that the insurer examinations could not be relied upon without the assessors reviewing the medical information (noted above) from the applicant’s doctors. The LAT further determined that on the basis of psychological and chronic pain impairments, as well as the aggravation of pre-existing osteoarthritis, the applicant requires treatment outside the MIG.
ii. Psychological Services — $3,841.09
The applicant submitted an OCF-18 treatment plan, for a psychological assessment. The respondent insurer denied the request for said assessment on December 1, 2020. Dr. Langis found that the applicant had “substantial cognitive difficulties” and that she required a full Neuropsychological Assessment. Dr. Langis further opined that the applicant, Huber, sustained psychological impairments as a result of the collision, which were significant enough that she did not fall under the MIG.
The LAT noted that sections 14 – 16 of the SABS provides that the insurer shall pay for medical and rehabilitation expenses so long as the applicant sustains an impairment as a result of the collision, and the expense of the incurred benefit is reasonable and necessary. The LAT then determined that the treatment plan satisfied these criteria.
iii. Psychological Assessment — $2,486
The applicant submitted an OCF-18 to the respondent on November 9, 2020, requesting approval of a psychological assessment with Dr. Langis. The insurer denied the applicant’s request for that assessment, but the applicant proceeded with the assessment nonetheless.
Dr. Langis’ assessment included a detailed pre-screening, which outlined the applicant’s physical and psychological issues. Dr. Langis confirmed the need for 12 sessions of cognitive behavioural therapy, as well as a neuropsychological assessment and a driving evaluation.
The applicant further noted the following psychological concerns, which were expressed to Dr. Mang: November 14, 2019 – emotions are hard to control and patient gets very angry and irritable at work; and July 6, 2020 – having meltdowns every day.
The respondent tried to argue that the applicant failed to provide medical records in accordance with the Case Conference Report and Order (the “CCRO”). The respondent further alleged that the applicant’s evidence amounted to ‘trial by ambush’. However, the LAT noted that the CCRO listed the psychological assessment as an issue in dispute, meaning the respondent was aware of this issue. Moreover, the respondent did not have any production requests for the applicant – as per the CCRO.
The LAT considered Rule 9.3 of the Licence Appeal Tribunal Rules. This Rule, inter alia, indicates that if a party fails to comply with a Rule, Order or Direction regarding the production of a document, the party cannot rely upon the document as evidence without leave of the LAT.
The LAT noted that the respondent was aware of the assessment and treatment plan of Dr. Langis, the applicant did not oppose the disclosure of the documents and the documents are relevant to the issues in dispute.
The LAT determined that the psychological assessment proposed was reasonable and necessary in accordance with the requirements of the SABS.
iv. Special Award and Interest
The applicant sought a special award, under section 10 of O. Reg. 664.
After considering the facts surrounding the current dispute, the LAT determined that there was “insufficient evidence of egregious conduct by the insurer” to warrant such an award. The LAT thus declined to grant a special award in favour of the applicant.
However, since the treatment plans were determined to be reasonable and necessary, the LAT found that interest was payable pursuant to section 51 of the SABS.
[1] Huber, supra note 1 at para 11.
