Licence Appeal Tribunal File Number: 22-009436/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:
Herbert Yaw
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Harouna Sidibé
APPEARANCES:
For the Applicant: Anna Rezaei, Counsel
For the Respondent: Danielle Ralph, Counsel
HEARD: By Written Submissions
OVERVIEW
1Herbert Ankomah Kumi Yaw (the “applicant”) was involved in an automobile accident on November 11, 2019, and sought benefits under the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Allstate Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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 $2,460.00 for a psychological assessment proposed by Knead Wellness in a treatment plan/OCF-18 (“treatment plan”) submitted on August 24, 2020, and denied on August 25, 2020?
Is the applicant entitled to $4,534.77 for psychological treatment proposed by Knead Wellness in a treatment plan submitted on November 19, 2020, and denied on November 23, 2020?
Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that:
The applicant’s injuries are not predominantly minor, and therefore, he is entitled to treatment beyond the monetary limit of the MIG.
The applicant is entitled to a psychological assessment in the amount of $2,460.00 and to psychological treatment in the amount of $4,534.77, with interest pursuant to s. 51 of the Schedule.
The respondent is liable to pay an award of 30%, plus interest, for the cost of the psychological assessment and the psychological treatment that has been incurred.
ANALYSIS
Applicability of the Minor Injury Guideline
4Section 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.”
5An 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 from their minor injury 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.
6The applicant submits that he should be removed from the MIG because he suffers from a psychological impairment and chronic pain as a result of the accident. In contrast, the respondent submits that the applicant has not established his accident-related injuries should be treated outside the MIG.
The applicant sustained injuries that warrant removal from the MIG
7I find that the applicant has established, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature. Therefore, he is entitled to treatment beyond the $3,500.00 monetary limit on treatment of the MIG.
(a) Psychological condition
8I find that the evidence supports that the applicant suffers from an adjustment disorder, anxiety, and depression as a result of the accident. As part of an initial psychological screening, dated August 8, 2020, he was interviewed by Dr. Mandeep Singh, psychologist, to determine the need for a complete and thorough psychological report and to prepare a treatment plan, if required. During the interview, the applicant reported several complaints, such as vehicular anxiety, driving avoidance, decline in energy, and poor sleep. The initial diagnosis by Dr. Singh was that the applicant was suffering from an adjustment disorder with mixed anxiety and depression.
9In his psychological assessment report, Dr. Singh stated that: “[t]he provisional diagnosis is not sufficient to determine the severity of the psychological impairments or offer a complete diagnostic understanding of Mr. Kumi’s psychological injuries that are directly attributable to the motor vehicle accident.” It is advisable for the applicant to undergo a psychological assessment to receive complete treatment for his psychological injuries. Dr. Singh’s report and a clinical note from Jane Park Doctors Office, dated June 3, 2023, support the applicant’s removal from MIG. The clinical note verifies reports of anxiety, poor sleep, low mood, depression, and difficulty concentrating.
10Further, on November 13, 2020, the applicant was assessed by Dr. Singh. The purpose of the assessment was to determine the psychological and emotional impact of his accident and provide treatment recommendations. Dr. Singh diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, and specific phobia related to motor vehicle travel, linking these to the accident. Treatment involving cognitive-behavioural psychotherapy and a driving evaluation assessment was recommended.
11The applicant was further assessed by Dr. Karen Spivak on December 23, 2020. As indicated in her insurer examination psychological assessment report, during the assessment, the applicant reported that he slept 8-9 hours per night, he continued to drive, and he did not avoid travelling in a car because of anxiety. Dr. Spivak concluded that the applicant “did not meet the full criterion of DSM-5 Diagnosis” (Diagnostic and Statistical Manual of Mental Illnesses, edition 5).
12I prefer Dr. Singh’s reports, and I do not agree with the respondent’s submissions that his findings were solely based on the applicant’s self-report. Dr. Singh conducted a comprehensive assessment of the applicant by completing an initial screening interview and a thorough clinical assessment, and he administered five psychometric tests. The results of Dr. Singh’s assessments and tests support that the applicant sustained a psychological impairment as a result of the accident. I also note that the applicant’s complaints to Dr. Singh are consistent with the complaints he made to his family physicians, Dr. Salaheddin Abouanaser, physician, and Dr. Magdy Ibrahim, physician, who he saw on April 17, 2023, and June 3, 2023, respectively. During those appointments, the applicant reported that he was depressed and anxious, had poor sleep, and had poor concentration.
13I further find that there is objective evidence to support the applicant’s accident-related psychological impairment. In addition to Dr. Singh’s initial screening report and psychological assessment report, Dr. Spivak’s report also documented the applicant’s psychological complaints such as anxiety, mood disturbance, and poor sleep. Indeed, Dr. Spivak noted that “[p]sychometric results are consistent with Mr. Kumi’s self-report and his clinical presentation during the assessment.” I give less weight to Dr. Spivak’s report because her clinical findings differ from Dr. Singh’s despite the fact that both assessors relied on the same psychological complaints. The applicant's consistent complaints of psychological injuries since his accident indicate that he no longer has minor injuries, but rather significant ones that require appropriate treatment.
14I also find that the absence of clinical notes and records does not preclude the applicant from establishing that his injuries require treatment beyond the MIG (see: Janaratharajan v. Aviva Insurance Company, 2021 CanLII 76646 (ON LAT)). Further, I do not agree with the respondent’s submissions that the absence of contemporaneous medical evidence suggests that the applicant’s psychological concerns were not significant enough for him to raise them with his family physician until June 2023, three years and eight months after the accident. The lack of complaints between November 11, 2019, and June 3, 2023, is not necessarily evidence of the absence of psychological impairments experienced by the applicant. Moreover, the respondent did not direct me to any evidence to support that the lack of complaints indicates an absence of psychological impairments in the applicant.
15Accordingly, I find that the applicant has established that he should be treated beyond the monetary limit of the MIG because he suffers from accident-related psychological impairments.
(b) Chronic pain
16I find that the evidence supports that the applicant suffers from chronic pain as a result of the accident. The applicant consistently reported that he was experiencing ongoing pain and discomfort post-accident and that it affected various aspects of his daily life. The applicant’s continuous pain complaints of neck pain, upper back pain, and shoulder pain from November 2019 to December 2020 are documented in the clinical notes and records of Knead Wellness. Similarly, the clinical notes and records of Jane Park Doctors Office also document the applicant’s ongoing pain complaints following the accident, until September 2023. Further, Dr. Spivak noted in her report that the applicant has difficulty sleeping because of his pain and that he had to take over the counter pain medication to alleviate the pain.
17I further find that the evidence does not support that the applicant’s accident-related injuries are minor injuries. While the respondent argues that the applicant’s accident-related injuries are cervical spine sprain/strain and whiplash, and that on nine occasions, the applicant did not complain of pain to his family physician, the clinical notes and records of Knead Wellness and Jane Park Doctors Office indicate that on several occasions, the applicant reported experiencing accident-related pain.
18Accordingly, I find that the applicant has established that he should be treated beyond the monetary limit of the MIG because he suffers from chronic pain as a result of the accident.
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.
20I find that the applicant has demonstrated, on a balance of probabilities, that the treatment plan dated August 24, 2020, for a psychological assessment in the amount of $2,460.00 and the treatment plan dated November 19, 2020, for psychological treatment in the amount of $4,534.77 is reasonable and necessary.
21The first treatment plan is for a psychological assessment and form completion. The goal of the treatment plan is to reduce pain, to return to pre-accident level of psychological functioning, and to return to activities of normal living.
22The second treatment plan is for 16 cognitive-behavioural oriented psychotherapy sessions, preparation and planning services, documentation, and form completion. The goal of the treatment plan is to reduce pain, to return to pre-accident level of psychological functioning, and to return to activities of normal living.
23I find that the evidence supports that the disputed treatment plans are reasonable and necessary. As indicated above, Dr. Singh opined that the applicant suffers from adjustment disorders and specific phobias as a result of the accident. Further, Dr. Singh found that psychological intervention is reasonably required to reduce the applicant’s level of psychological distress and to improve his awareness and understanding of the links between negative mood states, pain, and somatic symptoms. Also, in a clinical note dated April 17, 2023, Dr. Abouanaser noted that the applicant wanted to initiate medication first and to monitor positive improvements before starting therapy, and he referred the applicant to a psychiatrist and recommended psychotherapy. Moreover, the main goals of the treatment plans are to help the applicant reduce his anxiety, improve his sleep condition, and improve his stress. These goals can reasonably be achieved and will aid the applicant in his recovery.
24Additionally, while the respondent argues that the disputed treatment plans are not reasonable and necessary on the basis that they do not fulfill the three-part test outline in V.R. v. Aviva Insurance Company, 2019 CanLII 40262 (ON LAT), I do not agree. The goals identified in the treatment plans are reasonable for addressing the applicant’s accident-related injuries. I find that the three-part test has been met because all the goals identified in the OFC-18 are reasonable. These goals include pain reduction, a return to normal daily activities, and a return to pre-accident levels of psychological functioning. Additionally, the goals stated in the OFC-18 are being met to a reasonable degree, as there is a request for a psychological assessment to support 16 sessions of therapy, along with additional services. The requested timeframe for these sessions is 12 weeks, and the overall costs associated with achieving these goals are reasonable.
25Accordingly, I find that the applicant has established that he is entitled to the disputed treatment plans.
Interest
26Interest applies to overdue benefits under section 51 of the Schedule. The applicant is entitled to interest for any overdue payments related to the psychological assessment and the psychological treatment.
Award
27Pursuant to section 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. When such a finding is made, the Tribunal may order up to 50% of the withheld or delayed payment along with interest at the rate of 2% per month, compounded monthly.
28The applicant submits that the respondent has unreasonably withheld payment of the disputed treatment plans. The applicant also argues that given the content of Dr. Spivak’s report, the respondent was aware that the applicant suffered from depression, anxiety, and emotional distress because of the accident.
29The respondent submits that there is no basis for an award as no benefits are owed.
30It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for awarding a section 10 award is high.
31In the present case, I find that an award is warranted. I find that the respondent did not consider the applicant’s documented psychological impairments resulting from the accident, as identified in Dr. Singh’s records, and it overlooked the applicant’s need for a psychological assessment and psychological treatment when it denied the disputed treatment plans. I further find that the respondent did not consider new medical information as it became available, and it did not reconsider its prior determinations.
32The respondent’s conduct leads me to conclude that it unreasonably withheld payment.
33Given my findings, I must further determine the quantum of the award. It is well established that in determining the quantum of an award, the Tribunal may consider the following factors:
a. the blameworthiness of the insurer’s conduct;
b. the vulnerability of the insured person;
c. the harm or potential harm directed at the insured person;
d. the need for deterrence;
e. the advantage wrongfully gained by the insurer;
f. other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and
g. the overall length of the delay.
34In my view, the applicable factors are the blameworthiness of the respondent’s conduct, the vulnerability of the applicant, the need for deterrence, and the overall length of the delay. The respondent provides no reason for maintaining its position that is not supported by the medical evidence for nearly four years. While the quantum of the award should be large enough to serve as a deterrent, I find that the highest allowable award would be excessive. In the circumstances, I find that an award of 30% is appropriate (see: Hennin v. Economical Mutual Insurance Company, 2023 CanLII 50593 (ON LAT) and A.A. v. Aviva General Insurance Company, 2020 CanLII 19571 (ON LAT)).
35Accordingly, the respondent is liable to pay an award of 30%, plus interest, for the cost of the psychological assessment and the psychological treatment.
ORDER
36For the reasons outlined above, I find that:
The applicant’s injuries are not predominantly minor, and therefore, he is entitled to treatment beyond the monetary limit of the MIG.
The applicant is entitled to a psychological assessment in the amount of $2,460.00 and to psychological treatment in the amount of $4,534.77, with interest pursuant to s. 51 of the Schedule.
The respondent is liable to pay an award of 30%, plus interest, for the cost of the psychological assessment and the psychological treatment that has been incurred.
Released: November 5, 2024
Harouna Sidibé
Adjudicator