Where the burden of proof lies in accident claim adjudications

An applicant who was able to prove on a balance of probabilities that she should be removed from the minor injury guideline (MIG) because of a psychological impairment is entitled to additional accident benefits, Ontario Licence Appeal Tribunal adjudicator Nick Iannazzo wrote in an Aug. 25 decision (Murray v. Economical Insurance Company, 2023).

Applicant Tianna Murray was involved in an automobile accident on Oct. 1, 2020. She was the front seat passenger in a car that was rear-ended while stopped at an intersection.

After the accident, Murray stated she experienced flashbacks, was nervous when riding in a vehicle and experienced anxiety. She said her anxiety pre-existed the accident but was made worse by it. Murray submitted she should be removed from the MIG because of her pre-existing condition and psychological impairment.

Her submission relied on clinical notes and records from Dr. Altitanchy, her family physician, and a psychological assessment from Dr. Steiner, a psychologist, Ms. Ashraf, a psychotherapist, and Dr. Chan, a chiropractor.

The respondent, Economical Insurance Co., said the applicant lacked credibility because she gave inconsistent information to different parties – Ms. Ashraf, the psychotherapist who assessed her, and Dr. Miller, who conducted an insurer’s examination. Miller’s report said “the applicant was found not to have sustained any psychological injuries because of the accident and had no [Diagnostic and Statistical Manual of Mental Disorders] DSM-recognized impairments.”

The respondent also submitted “Dr. Altitanchy’s recommendations and diagnoses merit no weight because the doctor jumped to conclusions, relied upon the applicant’s self-reporting to the exclusion of other evidence, did not carry out objective psychological testing, and the doctor’s clinical notes and records lacked details and explanations.”

It also said the letter from the chiropractor, Dr. Chan, be given no weight since he “was not qualified to make a psychological diagnosis.”

Adjudicator’s view

Iannazzo wrote he was “not persuaded by the respondent’s submissions that the applicant is not credible.” He added, “It is not surprising that a person will not use consistent terminology with everyone she is questioned by, especially considering that questions and context may have varied.”

The adjudicator also said discrepancies raised by the respondent were not material, and don’t detract from the essence of Murray’s evidence that she has anxiety, that it got worse after the accident, and that it continues to impact her.

Iannazzo also said he believed the family doctor is credible and that there isn’t compelling evidence she jumped to conclusions, excluded other evidence or failed to act credibly while carrying out professional duties.

“Dr. Altitanchy has treated the applicant from at least six years prior to the accident and then regularly after the accident. The doctor’s notes and records are sufficiently detailed,” Iannazzo said. “The notes make specific references to the motor vehicle accident, how the applicant’s anxiety got worse, the pertinent diagnoses, appropriate prescriptions, and recommendations to see a psychologist and get treatment.”

The adjudicator was not persuaded that Dr. Miller’s evidence should be preferred over Dr. Altitanchy’s. “No compelling evidence was submitted to indicate that Dr. Altitanchy did not act professionally in rendering medical diagnoses, prescribing medications, and recommending a psychological assessment and psychotherapy,” he added.

Iannazzo did, however, agree with the respondent that the chiropractor, Dr. Chan, was not qualified to opine on psychiatry and gave that evidence no weight.

Decision

Overall, the adjudicator found the “applicant does not have a minor injury as defined under the MIG as a result of a psychological impairment and therefore she is not subject to the monetary limit of the MIG.”

The applicant is entitled to $2,144.93 for a psychological assessment, $1,995.32 for psychotherapy treatment and some interest.

Murray also sought an award of up to 50% of the total benefits, payable if the LAT found an insurer unreasonably withheld or delayed the payment of benefits.

“The applicant has the burden of proof [and] I find that the applicant is not entitled to an award because the applicant did not provide any evidence to support a finding that the respondent unreasonably withheld or delayed the payment of benefits,” Iannazzo said.

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