Matta v. Certas Direct Insurance Company, 2023 CanLII 65802

Matta v. Certas Direct Insurance Company

Citation: Matta v. Certas Direct Insurance Company, 2023 ONLAT 21-004605/AABS

Licence Appeal Tribunal File Number: 21-004605/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:

Ebanoub Matta

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Elvis Viskovic, Paralegal

For the Respondent: Amanda Magda, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on July 16, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹ The applicant was denied certain benefits by the Certas Direct Insurance Company, (the “respondent”), and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

2The following issues are to be decided:

1. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?²
2. Is the applicant entitled to $2,486.00 for psychological assessment, proposed by Advanced Healthcare Management Inc. in a treatment plan (“OCF-18”) dated September 10, 2019?
3. Is the applicant entitled to $3,841.09 for psychological therapy, proposed by Advanced Healthcare Management Inc. as recommended in OCF-18 dated December 5, 2019?
4. Is the applicant entitled to an award under section 10 of Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant’s injuries justify treatment beyond the MIG.
2. The applicant is entitled to $2,486.00 for a psychological assessment.
3. The applicant is entitled to $3,841.09 for psychological therapy.
4. The applicant is not entitled to a special award.
5. The applicant is entitled to interest.

ANALYSIS

APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition documented by a medical practitioner, prevents maximal medical recovery under the MIG, or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

Did the applicant suffer physical injuries that warrant the removal from the MIG?

8I find that the evidence establishes that the applicant’s physical injuries fall within the minor injury definition.

9The applicant relied on the clinical notes and records (“CNRs”) of Dr. Sawsan Younan, family physician, dated July 18, 2019, that state the applicant has soft tissue injuries in neck, shoulder wrist, along with headache and dizziness. Dr. Younan did not refer the applicant to any medical specialist. Further, the applicant returned to work after the accident with reduced hours and reduced duties.

10I find that the applicant has not met his evidentiary burden. I accept Dr. Younan’s opinion that the applicant suffered soft tissue injuries.

Did the applicant suffer psychological injuries that warrant removal from the MIG?

11I find that the applicant has provided sufficient evidence to demonstrate that his psychological impairments justify treatment beyond the MIG.

12An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

13In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

14In support of his position, the applicant relies on the pre-screening interview by Ivan Staroversky, M.A. Registered Psychotherapist, under the supervision of Dr. Erin Langis, Psychologist, on September 10, 2019. The applicant reported psychological complaints including; low mood, difficulty with concentration and sleep, anxious symptoms. Mr. Staroversky concluded that the pre-screening interview provides a clear rationale and presumptive compelling evidence for the need for a complete psychological report.

15The applicant proceeded with the section 25 psychological assessment by Ivan Staroversky, M.A. Registered Psychotherapist, under the supervision of Dr. Erin Langis, Psychologist, dated December 5, 2019. Mr. Staroversky opined that the applicant is suffering from adjustment disorder with mixed anxiety and depressed mood.

16In response, the respondent submits that the applicant did not provide any compelling medical evidence. The respondent submits that there are no CNRs from Dr. Younan that note psychological concerns, Dr. Younan did not refer the applicant to a psychologist, and the applicant failed to attend the section 44 Insurer Examination (“IE”) that he requested to attend in order to assist the respondent in determining the extent of his injuries. The applicant did not attend the IE as the application was already filed with the Tribunal.

17The respondent did not address the evidence put forward by the applicant, namely, the pre-screening interview or psychological report. An IE was not completed for the applicant. I note that pursuant to s. 44(1) of the Schedule, an insurer is not obligated to conduct its own examination of the insured, and the section simply holds that an insurer may require an examination.

18Given the fact that the applicant relies on the pre-screening and section 25 psychological assessment where Mr. Staroversky opined the applicant suffers adjustment disorder with mixed anxiety and depressed mood, without any counter evidence to refute the diagnoses, the only diagnosis I have to base my decision on, is the applicant’s evidence and submissions.

19Accordingly, I find that the applicant has sufficient evidence to demonstrate, on a balance of probabilities that he suffers form psychological impairments that justify the removal from the MIG.

20As a result of finding the applicant to be outside the MIG, I will now turn to discuss whether the disputed OCF-18s are reasonable and necessary.

THE DISPUTED TREATMENT PLANS

Is the applicant entitled to the cost of examination in the amount of $2,486.00 for a psychological assessment?

21I find that the applicant is entitled to the cost of the psychological assessment for the following reasons.

22In determining whether an applicant is entitled to a psychological assessment, the applicant is not required to prove that he requires the treatment. Rather, the evidence should demonstrate that here is a reasonable possibility that the applicant has the condition the assessment will investigate, and that the assessment is reasonable and necessary.

23I find that the applicant has provided evidence in this regard. The applicant provided some evidence of psychological impairment, including the pre-screening report of Ivan Staroversky, and note of psychological and emotion complaints including, feelings of low mood, temperament changes, short term, and anxiety symptoms.

24The respondent does not provide submissions beyond that the letter it submitted, and explanations of denial provided to the applicant was clear. The respondent denied the OCF-18 with the explanation that there was no compelling evidence to support any treatment outside the MIG. Even if the respondent determined at the time of the OCF-18 there was insufficient evidence to warrant a psychological assessment, the respondent should have reassessed as new information became available, including referring the applicant to an IE psychological assessment.

25Based on the evidence before me, I find that the applicant has met his burden to establish that the OCF-18 was reasonable and necessary.

Is the applicant entitled to $3,841.09 for psychological therapy?

26I find that the applicant is entitled to the cost of the psychological therapy for the following reasons.

27I find that the applicant has provided sufficient evidence in this regard. At the time the OCF-18 was submitted, the applicant had provided the respondent with evidence in the psychological assessment report detailing the applicant’s psychological symptoms. This included a conclusion that the applicant is suffering from adjustment disorder with mixed anxiety and depressed mood, and the recommendation of 12 sessions of cognitive behavioural therapy.

28The respondent submits that there is no evidence to show that the treatment is reasonable and necessary. However, the respondent provided no evidence, opinion or any agreement to counter the diagnoses of the section 25 psychological assessment report, or the OCF-18. The respondent provides that the letter and explanation provided to the applicant, was objectively clear in explaining denial.

29Based on the evidence before me, I find that the applicant has met his burden to establish that the OCF-18 was reasonable and necessary.

AWARD

30Section 10 of Reg. 664 provides that an award of up to 50% of the accident benefit and interest owed may be granted it the respondent unreasonably withheld or delayed payments.

31The applicant submits that the respondent did not give regard to the concerns raised by the applicant, failing to proceed with section 44 IE assessments. The applicant claims that the respondents attempt to invoke section 55 was an unfair or deceptive act. In reviewing the evidence before me, I find that the respondent is not obligated to conduct its own examination of the insured but rather the legislation simply holds that an insurer may require an examination.

32I do not find that the respondent’s conduct was excessive or amounted to egregious conduct to attract a section 10 award.

INTEREST

33The applicant submits that he is entitled to interest on all benefits in dispute. The respondent submits that no benefits were unreasonably withheld and there is no legitimate basis for the applicant to receive interest.

34After considering the submissions of the parties, based on a balance of probabilities, I find that interest is payable on the overdue claims in dispute, namely the $2,486.00 for a psychological assessment, and 3,841.09 for psychological therapy.

ORDER

35I find that:

1. The applicant’s injuries justify treatment beyond the MIG.
2. The applicant is entitled to $2,486.00 for a psychological assessment.
3. The applicant is entitled to $3,841.09 for psychological therapy.
4. The applicant is not entitled to a special award.
5. The applicant is entitled to interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).```