Citation: Karimi v. Intact Insurance, 2024 ONLAT 22-012511/AABS

Licence Appeal Tribunal File Number: 22-012511/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:

Mellad Karimi

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Bianca Crocetti, Paralegal

For the Respondent:

David Koots, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mellad Karimi, the applicant, was involved in an automobile accident on September 2, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. 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?

ii. Is the applicant entitled to $2,486.00 for a Psychological Assessment, proposed by A & B Medical in a treatment plan dated March 28, 2022?

iii. Is the applicant entitled to $3,233.13 for physiotherapy services, proposed by Islington Village Health in a treatment plan dated January 7, 2022?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

3One of the issues listed in dispute in the Case Conference Report and Order of July 5, 2023 (“CCRO”) was the applicant’s entitlement to income replacement benefits. The applicant did not list this as an issue in his submissions and did not make any submissions regarding his entitlement to the benefit. The respondent advised that the applicant has withdrawn his claim for income replacement benefits. I am satisfied that this issue is no longer before me.

RESULT

4The applicant sustained a psychological impairment as a result of the accident and accordingly is not subject to treatment within the MIG.

5The applicant is entitled to the treatment plan in dispute for a psychological assessment.

6Of the $3,233.12 in dispute for the treatment plan for physiotherapy services, the applicant is entitled to $840.00, plus applicable H.S.T., for a TENS unit, moist electric heating pad, and the completion of the treatment plan.

7The respondent is not liable to pay an award.

8The applicant is entitled to interest on overdue benefits pursuant to s. 51 of the Schedule.

ANALYSIS

Application of the Minor Injury Guideline

9Section 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.”

10An 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 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.

11The applicant submits that he sustained a psychological impairment as well as chronic pain as a result of the accident. The respondent disagrees.

12I find that the applicant has proven, on a balance of probabilities, that he sustained a psychological impairment as a result of the accident, and accordingly does not belong in the MIG. I need not determine whether he suffers from chronic pain as well.

13The applicant relies on the s. 25 report of Dr. Rick Lindal, psychologist, from an assessment on May 30, 2022. Dr. Lindal indicated that the applicant had frightening dreams which caused him to wake during the night, and some of those dreams involved flashbacks of accidents. The applicant reported that he did not drive for 4.5 months after the accident due to fear, and subsequently he drove more cautiously and less often. He worried about being in another accident and would clench the steering wheel while driving to the point of experiencing soreness and pain afterwards. The applicant also reported frequently experiencing intrusive thoughts about the accident. Dr. Lindal diagnosed the applicant with Specific Phobia: Situational Type (driving/passenger related). He also indicated that the applicant was experiencing features of Somatic Symptom Disorder with Predominant Pain. Dr. Lindal recommended psychotherapy and opined that the applicant did not belong in the MIG.

14I find that the psychological symptoms described by Dr. Lindal are corroborated throughout various pieces of evidence before me, and this persuades me that Dr. Lindal’s opinion is sound. The applicant reported symptoms of anxiety about driving and nightmares to his family physician, Dr. Berih, during three visits between October 2021 and March 2022. He reported to s. 44 psychologist, Dr. Rakesh Ratti, on April 20, 2022, that he experienced mild to moderate driving anxiety, as well as accident-related nightmares. The applicant reported to s. 44 general practitioner, Dr. Melissa Hershberg, on September 7, 2022, that he only drove when necessary due in part to driving-related anxiety. He also reported to Dr. Hershberg that he woke up from nightmares 2-3 times per week. During a re-assessment on January 24, 2023, he again reported to Dr. Hershberg that he was experiencing anxiety and flashbacks while driving, as well as nightmares. Finally, the applicant reported to Dr. Osama Benmoftah, s. 25 orthopaedic surgeon, on November 16, 2022, that his sleep was disturbed by nightmares, anxiety, and flashbacks.

15The respondent relies on the opinion of Dr. Ratti, which was that the applicant did not meet the criteria for a mental health diagnosis, and therefore the MIG applied. I prefer the opinion of Dr. Lindal to that of Dr. Ratti. Dr. Ratti did not conduct any testing specific to fear in traffic, one of the applicant’s primary complaints, whereas Dr. Lindal did. I also find that Dr. Lindal’s report was more thorough, as it delved into more detail regarding how the applicant’s symptoms affected his ability to drive.

16The respondent also argues that the applicant did not make any psychological complaints to Dr. Berih after March 1, 2022, and Dr. Berih did not prescribe medication for these complaints. In light of the applicant’s complaints of psychological symptoms to other physicians after March 2022, I am not persuaded by this argument. Further, the respondent has not provided any authority for the proposition that a person must be prescribed medication in order to prove that they sustained a psychological impairment.

17I accordingly find that the applicant has proven, on a balance of probabilities, that he sustained a psychological impairment as a result of the accident. As a result, he does not belong in the MIG.

Psychological Assessment

18To 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.

19I find that the treatment plan for the psychological assessment is reasonable and necessary. As indicated above, the applicant experienced psychological symptoms as a result of the accident. It was reasonable and necessary for him to undergo a psychological assessment to determine a diagnosis and make treatment recommendations, which Dr. Lindal ultimately did. Further, the cost of the treatment plan is $2,486.00 ($2,000.00 for the assessment, $200.00 to complete the treatment plan, and $286.00 for H.S.T.), which does not exceed the maximum cost for an assessment pursuant to s. 25(5) of the Schedule. The applicant is accordingly entitled to this treatment plan.

Physiotherapy Services

20I find that the applicant is entitled to $840.00 out of the $3,233.13 proposed in this treatment plan, plus applicable H.S.T., for a TENS unit, moist electric heating pad, and the completion of the treatment plan.

21The treatment plan in dispute proposes 12 sessions of multidisciplinary rehabilitation, 10 sessions of manual therapy, a TENS unit, an aqua pillow, a Mini Thumper, a moist electric heating pad, a re-assessment, and the completion of the treatment plan. The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, increase in lumbar muscle endurance, a return to activities of normal living, and a return to pre-accident work activities.

22Aside from the treatment plan itself, the applicant has not pointed me to any evidence to support the provision of an aqua pillow or mini thumper. I find that he has accordingly not met his burden in proving that those items are reasonable and necessary on a balance of probabilities.

23There is no provider listed for the provision of manual therapy, and the applicant has not explained why the cost of this therapy is $50.00 per session (as opposed to an hourly rate) or how long the session is. In the absence of information regarding what this therapy entails and why the cost is justified, I find that the applicant has not proven on a balance of probabilities that it is reasonable and necessary.

24The treatment plan indicates that the multidisciplinary rehabilitation is to be completed by a chiropractor. In the absence of any explanation as to what this treatment entails, I can only assume it involves chiropractic treatment. I note that the only practitioner who recommended chiropractic treatment was Dr. Benmoftah. Conversely, the applicant’s treating physicians did not recommend chiropractic treatments. Dr. Prutis, the applicant’s treating physiatrist, recommended acupuncture and deep tissue massage, modalities that were not included in this treatment plan. Dr. Berih recommended home exercise and attendance at a gym. I also note that the applicant advised Dr. Berih on March 1, 2022, that he was still attending physiotherapy but that his back pain had not improved since the accident. He ceased facility-based treatment around that time. However, he advised Dr. Berih on September 28, 2022, that his back pain was better after exercising regularly. I find this evidence persuasive that the cost of facility-based treatment was not reasonable and necessary as the applicant was receiving better results through exercise.

25I prefer the opinions of the applicant’s treating physicians over Dr. Benmoftah, as he made a number of treatment recommendations without any explanation of how effective those treatment modalities, or similar ones, were in relieving the applicant’s symptoms. I accordingly find that the applicant has not met his burden in proving that the proposed multidisciplinary rehabilitation is reasonable and necessary.

26I find that the TENS unit and electric heating pad are reasonable and necessary on a balance of probabilities. The applicant reported to Dr. Prutis that he was using a TENS machine at home, and that he found this machine to be helpful. Dr. Berih indicated on March 30, 2023, that the applicant was using a heating pad which was helping with his back pain. Dr. Benmoftah also recommended a home TENS unit and heating pad. I find that there is compelling evidence that these items were helping the applicant address his pain and were accordingly reasonable and necessary.

27While Dr. Hershberg indicated in her s. 44 report of February 1, 2023, that the entirety of the treatment plan in dispute was not reasonable and necessary, her only reason for this was that “there were no significant clinical findings to warrant the proposed goods and services”. I do not find this opinion persuasive, as it lacks specificity or an explanation as to why the proposed goods and services would not help the applicant with his ongoing pain.

28As I have determined that the applicant is not entitled to the facility-based treatment proposed in the treatment plan, I find that he is not entitled to the proposed re-assessment. He is, however, entitled to the cost of the preparation of the treatment plan as I have determined that other items are reasonable and necessary.

29The applicant has therefore proven on a balance of probabilities that he is entitled to $840.00 of this treatment plan, plus applicable H.S.T., which is comprised of the TENS unit, electric heating pad, and completion of the treatment plan.

30The applicant also submits that the treatment plan is payable in its entirety due to the respondent’s failure to comply with s. 38(8) of the Schedule. He submits that the respondent failed to provide a proper medical reason as to why it did not agree to pay for the proposed treatment plan.

31Under s. 38(8), an insurer has the obligation to provide an insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial. If those reasons are not provided, the consequence under s. 38(11) is that the insurer must pay for the goods and services described in the treatment plan.

32I find that the respondent’s denial letter of January 25, 2022, did not comply with s. 38(8) of the Schedule. The respondent advised that although the treatment plan indicated that the applicant’s injuries were not predominantly minor in nature, it did not have any clinical notes and records on file, and there was a lack of documentation on file that would support his removal from the MIG. However, it did not describe the applicant’s medical condition or why it believed his condition fit within the MIG. I find that there was a lack of medical reasons provided such that s. 38(8) was not satisfied.

33The respondent subsequently arranged a s. 44 assessment with Dr. Hershberg. In a letter dated February 21, 2023, the respondent denied the treatment plan on the basis of Dr. Hershberg’s opinion that the applicant belonged in the MIG as he sustained a lumbar strain injury. I find that this letter provided medical reasons in accordance with s. 38(8). I also find that it was clear and sufficient such that an unsophisticated person would be able to make an informed decision to dispute or accept the denial.

34I am bound by the Divisional Court decision of Aviva General Insurance v. Catic, 2022 ONSC 6000. The Court found that s. 38(11)2 compels the insurer to pay for all items in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. The applicant has not provided evidence that the remaining items of the treatment plan in dispute were incurred prior to February 21, 2023. As such, I find that the remaining items in dispute are not payable by operation of s. 38(11).

Interest

35I find that interest is applicable on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

36The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

37It is well established that an award should not be ordered for the simple reason that an adjudicator determined that an insurer made an incorrect determination. In order to attract an award, an insurer’s conduct must rise to the level of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The applicant has not provided compelling evidence that the respondent acted in such a manner. In denying the treatment plans and maintaining its position that the applicant belonged in the MIG, the respondent relied on the opinions of its s. 44 assessors, which it was entitled to do. I accordingly find that the applicant has not proven his entitlement to an award.

ORDER

38The applicant sustained a psychological impairment as a result of the accident and accordingly is not subject to treatment within the MIG.

39The applicant is entitled to the treatment plan in dispute for the psychological assessment.

40Of the $3,233.12 in dispute for the treatment plan for physiotherapy services, the applicant is entitled to $840.00, plus applicable H.S.T., for a TENS unit, moist electric heating pad, and the completion of the treatment plan.

41The respondent is not liable to pay an award.

42The applicant is entitled to interest on overdue benefits pursuant to s. 51 of the Schedule.