Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-005201/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:
Michael Martino
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Piera A. Segreto, Counsel
For the Respondent: Evan Argentino, Counsel
HEARD: In Writing March 10, 2024
OVERVIEW
1Michael Martino, the applicant, was involved in an automobile accident on June 11, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are to be decided:
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 limit?
ii. Is the applicant entitled to the amount of $2,200.00 for a psychological assessment, conducted by Dr. Bodenstein in a treatment plan submitted November 5, 2021?
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 that:
i. The applicant’s injuries are not predominately minor and therefore are not subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is entitled to the treatment plan in dispute;
iii. The applicant is not entitled to an award; and
iv. 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 of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident 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. The applicant submits that he suffers from chronic pain and psychological injuries, which are not included in the definition of minor injury. The respondent submits that the applicant has failed to establish that his injuries are not predominately minor and that they can be treated within the confines of the MIG.
The applicant suffered psychological injuries that warrant removal from the MIG
8I find that the applicant has provided sufficient evidence to demonstrate that his psychological impairments justify treatment beyond the MIG.
9An 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.
10In 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.
11The applicant submits that as a result of the accident he suffers from ongoing psychological injuries including depression, generalized, in-vehicle anxiety, and a sleep disorder. The applicant relies on the CNRs of Dr. Sokol. Dr. Sokol did not diagnosis the applicant with a psychological impairment but did reference that the applicant sustained cognitive impairments post accident and referred the applicant for psychological therapy. The applicant also relies on the psychological assessment of Dr. Eyal Bodenstein, psychologist, dated November 7, 2022. Dr. Bodenstein diagnosed the applicant with adjustment disorder, sleep disorder, automobile anxiety, and irritability and anger. Lastly, the applicant references Robert Brown’s Driver, Passenger and Pedestrian Reintegration Assessment Report, dated January 18, 2023. The assessment noted that the applicant had anxiety and avoidance issues while driving.
12The respondent relies on the Insurer Examination (“IE”) of Dr. Sarah Talebizadeh, psychologist, dated January 5, 2022. Dr. Talebizadeh through the administration of the Beck Depression Inventory DBI-II confirmed that the applicant endorsed feelings of sadness and guilt, irritability, low energy, however concluded that these symptoms did not reach the level of diagnostic criteria to generate a psychological diagnosis. Dr. Talebizadeh maintained her conclusions in her updated psychological assessment dated April 5, 2023. Lastly, the respondent provided surveillance of the applicant demonstrating him driving and being a passenger in a vehicle.
13After reviewing the evidence, I agree with the applicant. While I accept that the applicant is driving, I find that his anxiety is not just about being in a vehicle. The applicant has provided compelling evidence that he suffers from a psychological impairment as a result of the accident that would remove him from the MIG. In reviewing the CNRs of Dr. Sokol, I find that the applicant made complaints of feeling anxious, on edge, easily frustrated, and worried and Dr. Sokol made a referral for psychological therapy. Furthermore, Dr. Bodenstein diagnosed the applicant with adjustment disorder, sleep disorder, automobile anxiety, and irritability and anger. I prefer the evidence of Dr. Bodenstein over that of Dr. Talebizadeh as the conclusions were thoroughly detailed and aligned with the concerns raised by the applicant to Dr. Sokol.
14As a result, I find that the applicant has satisfied his onus to prove on a balance of probabilities that he has a psychological injury resulting from the accident that would warrant his removal from the MIG.
The applicant is entitled to $2,200.00 for a psychological assessment
15I find the treatment plan for a psychological assessment completed by Dr. Bodenstein, in the amount of $2,200.00 dated November 7, 2022, is reasonable and necessary. Dr. Bodenstein concluded that the applicant experiences psychological impairments as a result of the accident and diagnosed the applicant with adjustment disorder, sleep disorder, automobile anxiety, and irritability and anger. The goal of the treatment plan is to reduce the level of depression and anxiety that the applicant is experiencing and restore pre-accident levels of psychological functioning.
16I find Dr. Bodenstein’s psychological assessment is reasonable and necessary to evaluate and recommend next steps on the applicant’s psychological condition following the accident. Therefore, the applicant is entitled to $2,200.00 the amount of the psychological assessment.
AWARD
17Pursuant to section 10 of Ontario Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing. The denial of benefits alone is not sufficient to warrant a special award. While I agree with the applicant that the applicant’s funding was kept until the Tribunal decision, I am not persuaded that it was done by the respondent in bad faith. I find that the respondent complied with the Schedule’s substantive and procedural requirements in good faith.
INTEREST
18Given that the psychological assessment was incurred by the applicant, there is overdue payment of benefits. The applicant is entitled to interest pursuant to s. 51 of the Schedule.
ORDER
19I find that:
i. The applicant’s injuries are not predominately minor and therefore are not subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is entitled to the treatment plan in dispute;
iii. The applicant is not entitled to an award; and
iv. The applicant is entitled to interest.
Released: June 12, 2024
Monica Ciriello
Vice-Chair