Citation: Akanbi v. Sonnet Insurance Company, 2022 ONLAT 20-006682/AABS

Licence Appeal Tribunal File Number: 20-006682/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:

Akeem Akanbi

Applicant

and

Sonnet Insurance Company

Respondent

DECISION

ADJUDICATOR: Harry Adamidis

APPEARANCES:

For the Applicant: David Carranza, Paralegal

For the Respondent: Michael Vargas, Counsel

HEARD: In Writing

By Way of Written Submissions

BACKGROUND

1The applicant, Akeem Aknabi, was involved in an automobile accident on October 5, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent, Sonnet Insurance Company, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided in the hearing are:

1. 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 limit and in the Minor Injury Guideline?
2. Is the applicant entitled to $3,696.50 for physiotherapy recommended by Mackenzie Medical Rehabilitation Centre in an OCF-18) submitted on October 22, 2018?
3. Is the applicant entitled to $1,977.05 for physiotherapy recommended by Mackenzie Medical Rehabilitation Centre in an OCF-18 submitted on July 2, 2019?
4. Is the applicant entitled to $1,384.70 for physiotherapy recommended by Mackenzie Medical Rehabilitation Centre in an OCF-18 submitted on November 4, 2019?
5. Is the applicant entitled to $3,778.89 for psychological services recommended by Dr. Fiati in an OCF-18 submitted on January 18, 2019?
6. Is the applicant entitled to $2,254.72 for a psychological assessment recommended by Dr. Fiati in an OCF-18 submitted on November 18, 2018?
7. Is the applicant entitled to $200.00 for a disability certificate submitted by Mackenzie Medical Rehabilitation Centre on December 30, 2019?
8. Is the respondent liable to pay an award under s.10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
9. Is the applicant entitled to interest on any overdue payment of benefits?

Result

3I find that the applicant’s injuries are predominantly minor as defined in the Schedule. He has not proved, on a balance of probabilities, that his accident-related impairments require removal from the MIG. Accordingly, the applicant is not entitled to the costs associated with the five proposed OCF-18’s, the cost of a disability certificate, nor an award. As no outstanding benefits are owing, no interest is payable.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule limits the applicant to $3,500.00 in medical and rehabilitation benefits if he sustains an impairment that is predominantly a minor injury.

5Minor injury is defined in section 3(1) of the Schedule 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.”

6The applicant has utilized virtually all of the $3,500.00.¹ If the applicant establishes that his injuries are not minor, as defined by the Schedule, then he is entitled to medical and rehabilitation benefits that are reasonable and necessary to treat impairments that result from the accident.

7The applicant submits that he cannot be held within the $3,500.00 limit because he sustained a psychological impairment as a result of the accident.

8This submission is supported by a rational for assessment attached to an OCF-18² and a psychological report.³ Both documents were prepared by O.K. Dugan, a psychotherapist, and Dr. G.B. Fiati, a psychologist.

9The rationale and report are based on information provided by the applicant during an assessment that took place on January 10, 2019, as well as clinical observations, and psychological tests. The authors of the report, O.K. Dugan and Dr. Fiati, conclude that the applicant is experiencing psychological symptoms of pessimism, loss of pleasure, and changes in sleeping pattern.

10The report states that the applicant struggles with an inability to relax, fear of the worst happening, unsteady emotions, and fear of losing control. The report diagnoses the applicant with an adjustment disorder with mixed anxiety and depressed mood, phobias, and post-traumatic stress disorder. The report also concludes that the applicant’s psychological impairments make him incapable of completing his daily living routines such as household chores, home maintenance, and driving.⁴

11The respondent submits that little weight should be given to the report of O.K. Dugan and Dr. Fiati. It is unclear how the report was completed as there is no evidence that the applicant met with Dr. Fiati. Her opinion seems to be entirely based on the assessment completed by the psychometrist. Dr. Fiati did not do any validity testing and accepted everything the applicant told her at face value. According to the respondent, more weight should be given to their insurer’s examination (IE) which found that the applicant was not psychologically impaired.

12An IE took place on December 27, 2018. A psychological assessment report was prepared by Dr. Cheryl Bradbury, a psychologist. She reviewed available medical records, interviewed the applicant, and administered three psychological tests. Dr. Bradbury concludes that the applicant does not present with an accident-related psychological impairment. There is nothing, from a psychological perspective, that prevents him from resuming his day to day, vocational, or leisure activities. She further concludes that he does not require a formalized psychological assessment or treatment.⁵

13I am persuaded by the psychological assessment of Dr. Bradbury.

14Dr. Bradbury’s findings are consistent with the totality of the evidence. Prior to the accident, the applicant worked in sanitation. Post accident, he was unable to meet the physical demands of his sanitation job and transitioned to an office job in the financial services sector. Dr. Bradbury documents post-accident sleep disruption and an increased caution and awareness regarding vehicular passenger travel. Her testing did not reveal depressive disorder, accident-related anxiety disorder, psychological adjustment to injury disorder, or post-traumatic stress disorder. She found that the applicant was coping reasonably well and does not have a psychological impairment.

15Dr. Bradbury’s findings are consistent with the applicant transitioning from a job in sanitation to the financial services sector. This demonstrates resilience and is consistent with a high level of function that has not impeded by a psychological impairment.

16O.K. Dugan and Dr. Fiati diagnosed the applicant with serious psychological impairments. According to their report, these impairments make him incapable of completing his daily living routines, home maintenance, and driving.⁶ The report also recommends income replacement and that caregiving be provided for the applicant. The report documents that the applicant lost his job after the accident. A month later he was hired to work in sanitation, doing things like moping floors and cleaning machines. This is factually incorrect. The applicant was working in sanitation prior to the accident and lost this job soon after the accident.⁷

17This is problematic in terms of assigning weight to the findings made in the report. O.K. Dugan and Dr. Fiati opined that the applicant had been working a physically demanding job post-accident. No explanation was given as to how this would be possible while being too psychologically impaired to effectively perform household duties and requiring caregiving services. In my view, the report of O.K. Dugan and Dr. Fiati is internally inconsistent.

18The report is also inconsistent with the events that unfolded after the accident. The applicant transitioned from a job in sanitation to the financial services sector. It is difficult to understand how this could take place given the serious psychological impairments that were diagnosed in the report.

19For these reasons I give it little weight to the report of O.K. Dugan and Dr. Fiati.

20I accept the findings of Dr. Bradbury. Her report is more accurate and consistent with the events that unfolded post-accident. Consequently, I find that the applicant has not sustained a psychological impairment as a result of the accident.

21I further find that the applicant has not established, on a balance of probabilities, that he should be removed from the minor injury limit of $3,500.00.

OCF-18s and Disability Certificate

22I have found that the applicant does not have a psychological impairment and that his injuries are predominately minor. As such, he is subject to the limit of $3,500.00.

23The applicant has used virtually all of the $3,500.00. Under these circumstances, the applicant is not entitled to the five treatment plans, nor the cost of the disability certificate as listed in issues two to seven.

Award and Interest

24Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Regulation 664. Thus, no award is payable.

25Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

26The applicant’s injuries are minor, and he is not entitled to the five treatment plans, or the cost of the disability certificate.

27The applicant is not entitled to an award or interest.

Footnotes

1. 1Respondent’s submissions, paragraph 3.
2. 2Tab 11, Applicant’s Brief.
3. 3Tab 12, Applicant’s Brief.
4. 4ibid.
5. 5Respondent’s Brief, p. 198-199.
6. 6Applicant’s Brief, Tab 11, p, 19.
7. 7Applicant’s submissions, para 5.