Fouad Shalaby v. Economical Insurance Company, 2024 CanLII 15950

Citation: Shalaby v. Economical Insurance Company, 2024 ONLAT 22-003083/AABS

Licence Appeal Tribunal File Number: 22-003083/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:

Fouad Shalaby

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Applicant: Francesco Blasi, Paralegal

For the Respondent: Karly Lyons, Counsel

HEARD: By way of written submissions

OVERVIEW

1Fouad Shalaby, the applicant, was involved in an automobile accident on July 8, 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, Economical Insurance Company of Canada, 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 $2,144.93 for a psychological assessment, proposed by Dr. Judith Pilowsky, psychologist, in a treatment plan/OCF-18 (“plan”) dated February 17, 2022?

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

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

RESULT

3I find the applicant has proven that he is entitled to removal from the MIG and entitled to the disputed treatment plan for a psychological assessment. The respondent did not unreasonably withhold or delay payment and is therefore not liable to pay an award. As payment of the treatment plan is overdue, the applicant is entitled to interest.

ANALYSIS

Issue 1: Minor Injury Guideline

4The applicant has the burden of proving, on a balance of probabilities, that his accident injuries entitle him to treatment beyond the MIG. The applicant submits that he suffers accident-related psychological impairments that are beyond minor as defined in s. 3. I agree.

5Section 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.”

6An 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.

The applicant suffered a psychological injury which falls outside the MIG

7To prove his psychological condition entitles him to treatment beyond the MIG, the applicant relies, almost entirely, on a psychological report by Dr. Judith Pilowsky, psychologist, from her assessment conducted August 24, 2022. The report describes the applicant’s self-reports of diminished functioning both from his physical pain and psychological symptoms, including withdrawing from social engagement, poorer academic achievement, occasional moderate headaches, low self-esteem, and reduced ability to participate in household activities such as helping his father with projects and caring for his mother, who is experiencing her own health obstacles.

8The assessment was conducted with an in-person clinical interview and seven psychometric tests, as well as a document review. The test results included thorough descriptions of the condition being tested and ranges achieved by the applicant. The applicant scored 20 and 25 (moderate) for anxiety and depression on the Beck Anxiety Inventory (“BAI”) and Beck Depression Inventory (“BDI-II”), respectively.

9The applicant’s self-reports were also subjected to a Personality Assessment Index (“PAI”) test for validity. The results of that test suggest he answered in a forthright manner and did not attempt to present an unrealistic or inaccurate impression.

10Dr. Pilowsky concludes the applicant suffers from Chronic Adjustment Disorder with Depressed Mood (309.0), and Symptoms of Post-traumatic Stress Disorder, and he should therefore be removed from the MIG in order to access psychological services and counselling.

11The respondent submits that Dr. Pilowsky’s report is unreliable and should carry little weight because it heavily relies on OCF form reports authored by chiropractors who are not qualified to opine on psychological impairments, it is not corroborated by other medical evidence such as clinical notes and records of the applicant’s GP and reports of the applicant’s diminished psychological functioning are entirely based on self-reports with no supporting evidence.

12The respondent relies on the report of an insurer’s examination (“IE”) assessor, Dr. Douglas Saunders, psychologist, who assessed the applicant on April 14, 2022, and concluded the applicant’s psychological condition is consistent with mild level of symptoms that do not meet clinical criteria (DSM-5) for psychological impairment. Consequently, Dr. Saunders concluded the applicant’s injuries were appropriately within the MIG.

13The respondent also relies on a Tribunal decision in Weir v. Unifund Assurance Company, 2021 CanLII 30396 (ON LAT) (“Weir”) where a lack of compelling evidence to support the presence of accident-related psychological impairment prevented the applicant from escaping the MIG.

14The respondent argues, based on Dr. Saunders’ report, the unreliability of Dr. Pilowsky’s report, and the lack of any corroborating medical evidence in support of the applicant, that the applicant’s psychological condition is mild and does not constitute a psychological condition that would warrant his removal from the MIG. The respondent calls on the Tribunal to dismiss the application.

15The applicant submits the Saunders IE report should be given little weight because it is vague, the author seemingly cut and pasted its conclusion (that the applicant’s accident injuries were “consistent with mild levels of symptoms that do not meet clinical criteria for impairment”) in three locations with little attention to the applicant’s psychological condition, and that it failed to acknowledge Dr. Pilowsky’s findings and why his report differs so starkly from it.

16I find the evidence demonstrates the applicant sustained a psychological injury from the accident and he is entitled to reasonable and necessary treatment beyond the MIG. Dr. Pilowsky reports the applicant’s psychological symptoms and gives reasons for her psychological injury diagnosis. I give weight to her assessment because it is supported by extensive psychometric testing, the applicant’s self-reports are reinforced by validity testing, and the applicant underwent a lengthy in-person interview.

17I disagree with the respondent and find Dr. Pilowsky’s report to be credible and compelling. I give little weight to the respondent’s contention that Dr. Pilowsky’s assessment heavily relied on OCF forms authored by unqualified assessors. Its claim is not supported by the evidence. The respondent does not direct me to any of the offending OCF forms. I have only one OCF-18 treatment plan before me, authored by Dr. Pilowsky. The rationale and commentary in that treatment plan mirror that of her psychological report, as one would expect. From my vantage point, Dr. Pilowsky’s report relies on the results of her in-person interview with the applicant and the clinical testing results in reaching her diagnosis of psychological injury. She makes only passing references to the review of several OCF forms, forms that have not been submitted for this hearing, save the one OCF-18 exception noted above, by either party.

18I do not find Dr. Saunders’ IE report as persuasive as Dr. Pilowsky’s because it was not as thorough. The IE assessment was completed in 1 hour and 40 minutes including three psychometric tests. The results of the tests were stated but not elaborated upon in terms why the applicant’s mild psychological symptoms failed to meet the clinical criterion for a psychological impairment. The responses to the standard questions posed in such an assessment were no more than one sentence or two brief sentences. The conclusion, that the applicant’s psychological symptoms did not meet clinical criteria for a psychological impairment, was repeated at least four times with no explanation as to how or why his symptoms did not reach that level.

19I do not attach weight to the respondent’s argument that Weir reinforces its position. In Weir, the Tribunal concluded there was insufficient evidence to demonstrate the applicant suffered a psychological injury. Unlike the case before me, in Weir the applicant submitted no evidence of psychological injury and relied solely on a reference by an IE assessor of the applicant’s reports of psychological symptomology. There was no other evidence to support the existence of psychological injuries. By contrast, in this case, there is credible evidence of psychological injury in the applicant’s own expert report, and Dr. Saunders’ IE report notes psychological symptoms.

20The respondent is correct to note that Dr. Pilowsky’s report did not exist at the time Dr. Saunders authored his report. The applicant’s complaint that the IE report included no reference to, or explanation of the difference in findings in, Dr. Pilowsky’s report, therefore has no merit. However, the respondent had eight months after receiving Dr. Pilowsky’s report until the date of the hearing for Dr. Saunders to review it and submit an addendum report. Since Dr. Saunders reported accident-related psychological symptoms afflicting the applicant, and it is a psychological assessment that is in dispute, it would have been prudent of the respondent share Dr. Pilowsky’s findings with its IE assessor.

21I find the applicant has proven, on a balance of probabilities, that he suffered a psychological injury in the accident. Accordingly, I find his psychological injuries warrant his removal from the MIG.

Issue 2: Treatment plan for psychological assessment, $2,144.93

22To 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.

23The applicant relies on the findings in Dr. Pilowsky’s psychological report to support his claim that the disputed treatment plan, authored by her, is reasonable and necessary. In the proposed treatment plan, Dr. Pilowsky outlines the psychological symptoms that are interfering with the applicant’s daily functioning including sadness, social withdrawal, poor sleep and fatigue, and negative self-perception. The treatment plan’s objective is to ascertain whether psychological intervention would help him manage these psychological impairments and offer recommendations to prevent his psychological condition from deteriorating, and possible treatments to improve his functioning over time.

24The cost of the proposed treatment plan is within the limits imposed by the Schedule and is reasonable for the service being proposed.

25The respondent submits it has approved funding for the applicant’s medical and rehabilitation treatment to the limit of the MIG and it denies the applicant’s injuries are beyond minor. It denies the disputed treatment plan on the basis the MIG limit has been reached, and in the alternative, that it is neither reasonable nor necessary since it contends the applicant has not established he suffered a psychological impairment.

26I find the treatment plan is reasonable and necessary because it is proposed on the basis of the applicant’s proven psychological injury and its goals align with the applicant’s interest in addressing his psychological symptoms and returning to pre-accident psychological functioning. The applicant is entitled to the treatment plan in dispute.

Award

27The 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. An award under s. 10 of Reg. 664 would only apply to the one disputed treatment plan in the amount of $2,144.93.

28The respondent submits a s. 10 award is not owing to the applicant because it responded appropriately in denying the claimed treatment plan. It submits the treatment plan was submitted in the absence of any corroborating evidence, that the OCF-18 for the psychological assessment is not medical evidence, and the insurer examination by Dr. Saunders confirmed the applicant’s injuries were within the MIG. The respondent submits that to establish entitlement to an award, the Tribunal would not only need to find the respondent was incorrect in its denial, it would also need to find the respondent was excessive, imprudent, stubborn and inflexible in withholding its approval of the claimed benefits, behaviour and actions that it contends never occurred in the management and adjusting of the applicant’s claim.

29The applicant submits the respondent was unreasonable in denying the claimed treatment plan because it did not consider the applicant’s psychological distress and difficulty and it relied on a flawed IE report. The applicant submits the respondent was stubborn and imprudent with the applicant’s claim because it denied approving the psychological assessment with the full knowledge that the applicant had sustained a psychological injury from the accident.

30I find the respondent’s initial denial of the proposed treatment plan was reasonable and agree with the respondent that there was limited medical evidence accompanying the OCF-18 to inform an approval. However, after Dr. Saunders’ IE assessment became available, April 27, 2022, the respondent became aware the applicant had sustained mild, psychological symptoms from the accident. Although the IE assessment concluded the applicant’s symptoms were insufficient to escape the MIG, it revealed the presence of psychological symptoms which a further psychological assessment could have more fully informed. When the respondent received Dr. Pilowsky’s report in December it had the opportunity to reconsider the extent of the applicant’s psychological injury, yet it dismisses Dr. Pilowsky’s credible report in favour of its IE assessor’s less rigorous assessment. At the very least, the respondent could have sought a review of Dr. Pilowsky’s report by Dr. Saunders. That it failed to do so, suggests a lack of attention to its insured’s accident injuries.

31However, despite ignoring new medical evidence that was relevant to the one treatment plan in dispute, I find the respondent is not liable for an award under s. 10 of Ontario Regulation 664. Although the respondent could have been more attentive to the applicant’s accident injuries, its actions do not rise to the level of being immoderate, excessive, or imprudent.

32Accordingly, I find the respondent did not unreasonably withhold payment to the applicant and is not liable to pay the applicant an award pursuant to s. 10 of O. Reg 664.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As payment for benefits is overdue, interest is owed from the date of the LAT application to the date this decision is issued.

ORDER

34I find that:

i. The applicant sustained a psychological injury in the accident that is beyond minor pursuant to s. 3. The applicant is therefore not subject to the $3,500.00 limit of the MIG;

ii. The applicant is entitled to the psychological assessment for $2,144.93;

iii. The respondent is not liable to pay an award under s. 10, O. Reg 664.; and

iv. The applicant is entitled to interest on the overdue payment of the treatment plan, from the date of the LAT application to the date this decision is issued.