Citation: Jacob v. Coseco Insurance Company, 2024 ONLAT 21-009465/AABS

Licence Appeal Tribunal File Number: 21-009465/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:

Sean Jacob

Applicant

and

Coseco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Sandra Train, Counsel

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1On October 2, 2016, the applicant’s mother was involved in an automobile accident, and subsequently died from her injuries. As a result of his mother’s death, the applicant (who was not involved in the accident), is claiming that he suffered severe psychological injuries. As a result, the applicant 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 Coseco Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent in its initial submissions, argued that the applicant is only entitled to benefits in accordance with s. 3(1) of the Schedule if he can prove that he suffered a psychological or mental injury as a result of the accident, which it takes the position that the applicant has not done so. Thus, there is a preliminary dispute between the parties of whether the applicant sustained a psychological or mental injury and therefore is an insured person pursuant to s. 3(1).

ISSUES

3The issues in dispute are:

a) 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 limit (“MIG”)?

b) Is the applicant entitled to $2,200.00 for psychological services, proposed by Dr. Bita Sharifzadeh in a treatment plan/OCF-18 (“OCF-18”) dated July 8, 2021, and denied on July 21, 2021?

c) Is the applicant entitled to the following OCF-18s proposed by Mind by Design:

(i) $6,582.10 for psychological services, in an OCF-18 dated December 8, 2021, and denied on December 17, 2021;

(ii) $5,150.05 for psychological services, in an OCF-18 dated May 9, 2022, and denied on May 19, 2022; and

(iii) $6,921.23 for psychological services, in an OCF-18 dated November 1, 2022, and denied on November 11, 2022?

d) Is the applicant entitled to $14,012.00 for a CAT Assessment, proposed by Omega Medical Associates in an OCF-18 dated May 5, 2022, and denied on May 19, 2022?

e) Is the respondent liable to pay an award pursuant to s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

f) Is the applicant entitled to interest on any overdue payment of benefits?

g) Is the respondent liable to pay costs pursuant to Rule 19 of the Licence Appeal Tribunal Rules, 2023 (“Rules”)?

RESULT

4I find that:

(a) The applicant is not entitled to benefits under the Schedule because he did not sustain a psychological/mental injury as a result of the accident and therefore is not an insured person pursuant to s. 3(1).

(b) As no benefits are owing, no interest or award is payable.

(c) The respondent is not liable to pay costs

ANALYSIS

The applicant did not sustain a psychological/mental injury as a result of the accident

5I find that the applicant has not established on a balance of probabilities that he sustained a psychological/mental injury from the passing of his mother, thus, pursuant to s. 3(1) of the Schedule, he is not entitled to make a claim. Accordingly, the applicant is not entitled to the medical and rehabilitation benefits in dispute.

6The Schedule provides that insurers are liable to pay certain benefits to, or on behalf of, insured persons who sustain an impairment as a result of an accident involving the use or operation of an automobile.

7Under s. 3(1) of the Schedule, an “insured person” means, in respect of a particular motor vehicle liability policy,

(a) the named insured, any person specified in the policy as a driver of the insured automobile and, if the named insured is an individual, the spouse of the named insured and a dependant of the named insured or of his or her spouse,

i. if the named insured, specified driver, spouse or dependant is involved in an accident in or outside Ontario that involves the insured automobile or another automobile, or

ii. if the named insured, specified driver, spouse or dependant is not involved in an accident but suffers psychological or mental injury as a result of an accident in or outside Ontario that results in a physical injury to his or her spouse, child, grandchild, parent, grandparent, brother, sister, dependant or spouse’s dependant.

8The applicant in his initial submissions argued that the respondent never disputed that he was an insured person pursuant to s. 3(1). The applicant also submitted that he sustained significant psychological impairments as a result of his mother’s death. To support his position, the applicant relies on the clinical notes and records of his family physician, Dr. Vinay Jindal, a psychological assessment, dated November 19, 2014, by Dr. Joseph Regan, psychologist, a s. 25 psychological assessment by Ms. Lisa Bynoe-Stevens, registered psychotherapist, under the supervision of Dr. Bita Sharifzadeh, psychologist, dated October 30, 2021, and progress reports, dated April 3, 2022, and October 10, 2022.

9The respondent submitted that the applicant was not involved in the accident and did not sustain physical injuries from this accident. Its position is that pursuant to s. 3(1) of the Schedule, he is only entitled to benefits if he can prove that he suffered a psychological or mental injury as a result of the accident. The respondent submits that the applicant has failed to provide compelling medical evidence that his alleged psychological injuries were caused by the accident. Instead, the respondent submits that the evidence supports that the applicant has a history of mental illness and was involved in a previous motor vehicle accident which caused chronic pain, cognitive, and psychological issues, and these issues did not change following his mother’s death.

10The respondent also submits that the applicant has failed to establish that his psychological issues were caused or worsened by the subject accident. To support its position, the respondent relies on the clinical notes and records of Dr. Jindal, and Mind by Design, and the Ontario Disability Support Program (“ODSP”) file.

11The applicant in reply submits that he is an insured person as the respondent paid him optional death and funeral benefits, and that the respondent has acknowledged that the applicant was principally dependant on his mother for financial support and care.

12In order to demonstrate he has psychological injuries caused by the accident, the applicant must show that he would not have suffered these injuries “but for” the accident. The cause meeting that test need not be the major cause or sufficient in itself to have caused the injuries at issue. The accident does not need to be “the cause” of the injuries but must be at least “a necessary cause” (see: Sabadash v. State Farm et al., 2019 ONSC 1121).

13The applicant’s pre-accident records establish that he had significant psychological impairments prior to his mother’s death. Dr. Regan in his psychological assessment, noted that the applicant had chronic pain since 1993, including sleeping difficulties, and had been depressed for a long period of time. Also, the applicant was diagnosed with major depression and mild verbal learning disability by Dr. Regan on December 12, 2014 (approximately two years before this accident), who also opined that it would remain the same.

14Also, on November 18, 2015, Dr. Sharon Morong, otolaryngologist, noted that the applicant had a lot of trouble sleeping and, as a result referred him to cognitive behavioural therapy. I acknowledge that Dr. Morong is an otolaryngologist, whose expertise is not in psychology; however, she opined that the applicant was having difficulty sleeping despite his sleep apnea being well-controlled. As a result, she recommended a referral for cognitive behavioural therapy. In my view, this further demonstrates that the applicant was having difficulty with sleep (not related to sleep apnea) prior to the accident.

15Furthermore, on September 26, 2016 (shortly prior to his mother’s accident), Dr. Jindal noted that the applicant had significant psychological symptoms which included: being in distress, he could not sleep, had no will to get out of bed or do anything, was not socializing, was angry/having rage, and that he was isolating himself. As a result, Dr. Jindal recommended counselling, which the applicant refused.

16I find that the applicant had pre-existing psychological impairments prior to the accident, as illustrated above. The applicant argues that these injuries were aggravated by the accident. However, in doing so, he doesn't explain how his pre-existing psychological impairments were worsened by the accident nor does he point me to specific evidence to support this position. In any event, I have reviewed the medical evidence, and in my view, there is no compelling medical evidence that the applicant’s pre-existing psychological condition was aggravated by the accident. Aside from the one entry where the applicant self-reported to Dr. Jindal on October 26, 2016, that his bad dreams had worsened following his mother’s death, there is no other reference in Dr. Jindal’s records that the applicant’s pre-existing psychological conditions were aggravated or worsened by this accident.

17In his subsequent visits to Dr. Jindal (November 16, 2016, and March 8, 2017), in which Dr. Jindal noted that the applicant had a grief reaction, there is no reference to whether his grief response worsened his pre-existing psychological impairments. For example, while Dr. Jindal noted on March 8, 2017, that the applicant self-reported that he had a combination of grief and depression, there is no reference to whether this had an impact on his pre-existing conditions. Dr. Jindal also noted that the applicant was having a grief reaction and made no opinion of whether the applicant had depression as a result of his mother’s death. The applicant has also not directed me to further entries from Dr. Jindal where he self-reported that his pre-existing conditions were worsened by his mother’s death.

18In fact, on January 29, 2018, the applicant advised Dr. Jindal that he could not sleep due to back pain, and there is no reference to his mother’s death.

19Moreover, the applicant completed a self-report form for ODSP on December 20, 2018, and he did not mention his mother’s death, or whether his pre-existing conditions were exacerbated as a result. Instead, the applicant detailed his pre-accident history only. In a medical review adjudication summary by Ministry of Community and Social Services, dated January 30, 2019, it was noted that the applicant’s family physician reported that the applicant’s major depression remained unchanged. While I am aware of the applicant’s position that the benefits through ODSP are subject to a different legislation, I find it relevant, and inconsistent with his position in this appeal, that he did not mention his mother’s death and the emotional toll it took on him, especially since he is claiming that he had a psychological impairment as a result.

20I also find that the applicant has not led sufficient evidence that he suffered a psychological impairment as a result of his mother’s death.

21I acknowledge that on November 16, 2016, and March 8, 2017, the applicant self-reported that since his mother’s death: his mood was up/down, he was not eating as much, he was not doing groceries, he was unable to walk outside of the house, was socially withdrawn, and had stress in his life, and could not identify a support person/system. However, the applicant self-reported similar concerns prior to the accident.

22For example, on December 12, 2014, the applicant self-reported to Dr. Regan that he had frequent arguments with his mother, had difficulty getting along with others, felt everything was orchestrated against him, had problems comprehending social interactions, and was depressed for a long time. As a result, Dr. Regan concluded that the applicant’s chronic and untreated psychological difficulties made him substantially disabled. Similarly, on September 26, 2016, the applicant self-reported to Dr. Jindal, that he was in distress, could not sleep, could not get out of bed, was not socializing, and that he was isolating himself.

23Moreover, Dr. Jindal, who was aware of the applicant’s pre-existing psychological impairments, did not provide a medical opinion of whether his mother’s death aggravated these pre-existing conditions. Nor did Dr. Jindal diagnose the applicant with a psychological impairment as a result of the death of his mother, and he did not prescribe medication as a result of the applicant’s grief. I am aware of the applicant’s position that Dr. Jindal is a general practitioner and not a psychologist, however he is the applicant’s family physician, and as such he would have more intimate knowledge of the applicant than a s. 25 assessor would, especially of his pre-existing health, therefore I place more weight on Dr. Jindal’s records.

24As noted in Dr. Jindal’s records, on October 26, 2016, November 6, 2016, and March 8, 2017, the applicant reported symptoms of not eating, worsened bad dreams, being in distress, having no support system and that he avoided going outside, and Dr. Jindal noted that the applicant was having a grief reaction. While I acknowledge that Dr. Jindal’s entry dated March 8, 2017, noted that the applicant declined grief counselling, however, Dr. Jindal did not diagnose the applicant with a psychological impairment, prescribe medication, nor did he refer the applicant to a psychiatrist. Also Dr. Jindal did not provide an opinion of whether the applicant’s pre-existing condition was aggravated by his mother’s death.

25In any event, there are no further visits to Dr. Jindal with respect to the applicant’s mother’s death. I am aware of the applicant’s position that the April 5, 2017, entry from Dr. Jindal’s records is in relation to this accident, but I disagree.

26On April 5, 2017, the applicant self-reported to Dr. Jindal that he was stressed about the “same old, same stuff, it will not go away”. However, there is no reference to his mother’s death as being a cause of his concerns. I place more weight on the lack of visits after March 8, 2017, to Dr. Jindal with respect to how his mother’s death affected him, especially since he attended for unrelated visits on January 29, 2018, December 17, 2018, and May 23, 2020.

27I also find the s. 25 psychological assessment report completed by Ms. Bynoe-Stevens, under the supervision of Dr. Sharizadeh, to be of limited persuasive value. While I acknowledge the applicant’s position that the report is undisputed as the respondent did not complete an s. 44 insurer’s examination, the onus is on the applicant to prove that he has a psychological impairment, and not on the respondent to disprove.

28Ms. Bynoe-Stevens and Dr. Sharizadeh relied largely on the applicant’s self-reporting, which was inconsistent with the applicant’s pre-accident records, and as such, I agree with the respondent that this undermines the reliability of this report.

29For example, the applicant advised Ms. Bynoe-Stevens and Dr. Sharizadeh that he did not have sleeping difficulties prior to his mother’s death and his difficulties only started after the accident, which is inconsistent with the psychological assessment of Dr. Regan and the pre-accident record of Dr. Jindal as noted above.

30Additionally, the applicant did not advise Ms. Bynoe-Stevens and Dr. Sharizadeh that he had concentration/memory issues prior to the accident as indicated in Dr. Regan’s report. Moreover, on December 12, 2014, Dr. Regan completed an intellectual and emotional wellness scale and opined that the applicant had minimal symptoms/signs of intellectual function and moderate symptoms/signs of memory issues, and motivation. Lastly, the applicant described his pre-accident life as “healthy and unrestricted” to the s. 25 assessors, which is inconsistent with the pre-accident evidence, like the ODSP file and Dr. Regan’s report.

31The accuracy of the s. 25 report is further undermined by the fact that neither Ms. Bynoe-Stevens or Dr. Sharizadeh reviewed the applicant’s pre and post accident records. Furthermore, the applicant did not advise them of his pre-existing psychological impairments, and only advised of his physical injuries sustained in the 1993 car accident. As such, the assessors made their conclusions without being aware of the applicant’s pre-existing history and in my view, undermines their opinion that the applicant sustained a post-traumatic stress disorder and persistent depressive disorder as a result of his mother’s death. These diagnoses are also inconsistent with the bulk of the medical evidence.

32Ms. Bynoe-Stevens and Dr. Sharizadeh also did not provide an explanation of why they were relying on the applicant’s self-reporting when some validity scores were elevated in the psychometric testing. For example, the validity scales for the Detailed Assessment of Posttraumatic Stress and the Personality Assessment Inventory revealed elevated scores which may indicate that the applicant was presenting himself as especially symptomatic, may be randomly responding or may be experiencing an unusual number of atypical symptoms. For both results, the assessors noted the results would be reviewed in the context of other clinical information, however they did not advise which clinical information and the conclusion of same. Instead, they diagnosed the applicant with psychological impairments based on his self-reporting. This in my opinion, further undermines the accuracy of their conclusions that the applicant has psychological impairments as a result of the accident.

33I find the progress reports by Dr. Sharizadeh and the clinical notes and records of Mind by Design to be unpersuasive. Firstly, the records mentioned that the applicant had pain and restricted physical functioning/mobility, yet this is not in relation to the subject accident, as the applicant was not involved in the accident. Second, there are references to cognitive concerns, depressed mood, irritability/impatience with family and friends, social withdrawal, and anxiety, however, these issues already existed prior to the accident. Moreover, the records are silent with respect to the applicant’s pre-accident psychological health and whether it was impacted by the subject accident. Lastly, from the records provided by Mind By Design, the applicant only mentioned his mother’s death on two occasions (January 26, and February 8, 2022), and the vast majority of the entries pertain to sleeping issues, irritability, anger, isolation, memory issues and being easily upset, which were issues that existed prior to the accident.

34I also take note that the applicant in reply submits that the Tribunal should consider his claim in the full context and that the respondent has taken a selective position. The applicant submits that the respondent’s position assumes that he will find his way and he will continue working, despite his upbringing, and subsequent psychological counselling. Moreover, the applicant submits that the respondent acknowledged he was financially dependent on his mother for financial support and care. As such, the applicant submits that the Tribunal should pursuant to section 16 of the Statutory Powers Procedure Act, RSO 1990, c S. 22, R.S.O. c. S.22 (“SPPA”), take judicial notice of this. The applicant did not direct me to evidence to support his submission with respect to his background, and he provided no specifics, it is well-settled that submissions do not constitute as evidence.

35Also, even If I agree that the applicant was financially dependent on his mother for financial support and care, pursuant to s. 3(1) of the Schedule, he still needs to establish that he has a psychological or mental injury, which I have found that he does not.

36For these reasons, I find that the applicant has not established he experienced an accident-related psychological impairment/mental injury. I therefore find that he is not entitled to benefits under the Schedule.

The applicant is not entitled to medical and rehabilitation benefits pursuant to s. 3(1) of the Schedule as he does not have a psychological/mental injury

37As noted above, the applicant did not sustain a psychological/mental injury from the passing of his mother, as such he is not entitled to medical and rehabilitation benefits.

38I take note that the applicant raised numerous procedural issues with respect to the respondent’s denial letters and that it was noncompliant with ss. 38(8), and 38(9) of the Schedule.

39However, as the applicant was not directly involved in the accident, he can only pursue a claim if he has a psychological or mental injury as a result of his mother’s death, which I find that he has not established, as noted above. While I appreciate that the applicant sustained an initial grief reaction to his mother’s death, I am not persuaded by the medical evidence that he suffered a psychological or mental injury.

40I am also aware of the applicant’s submission that he was financially dependant on his mother and that he received death and funeral benefits, however, s. 3(1) is clear that he has to establish that he was both a dependant and sustained a psychological injury or mental injury as a result of his mother’s death. In this regard, I am not persuaded that the applicant has sustained a psychological injury or mental injury as a result of his mother’s death. Thus, he cannot pursue a claim for medical and rehabilitation benefits.

The applicant is not entitled to interest pursuant to s. 51 of the Schedule

41Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

The respondent is not liable to pay costs

42The applicant submits that the conduct of the respondent should be deterred and has risen to the level of acting unreasonably, frivolously, vexatiously, or in bad faith. However, he provided no particulars of how the respondent’s actions in this proceeding rose to this level.

43Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Rules. The threshold for costs is high. The applicant has failed to provide any reasons why costs should be imposed, nor has he referenced any of the potential cost criteria set out in Rule 19.5 in relation to this matter. I am not persuaded the threshold for costs has been met at this juncture. Thus, no costs shall be awarded.

The applicant is not entitled to an award pursuant to Regulation 664

44The applicant seeks an award and interest under s. 10 of Regulation 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. For conduct to attract a s. 10 award, the conduct must rise above being simply an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

45As the applicant has been found to not be entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.

ORDER

46For the reasons as outlined above, I find that:

(a) The applicant is not entitled to benefits under the Schedule because he did not sustain a psychological/mental injury as a result of the accident and therefore is not an insured person pursuant to s. 3(1).

(b) As no benefits are owing, no interest or award is payable.

(c) The respondent is not liable to pay costs.

(d) The application is dismissed.