Citation and Parties

Citation: Ahmed v. Certas Home and Auto Insurance, 2024 ONLAT 21-002552/AABS - A

Licence Appeal Tribunal File Number: 21-002552/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:

Amira Ahmed Applicant

and

Certas Home and Auto Insurance Respondent

AMENDED DECISION

ADJUDICATOR: Mary Henein Thorn

APPEARANCES:

For the Applicant: Mireille Dahab, Counsel Avneet Kaur, Counsel

For the Respondent: Jonathan Schrieder, Counsel

HEARD: In Writing

OVERVIEW

1Amira Ahmed, the applicant, was involved in an automobile accident on December 22, 2019, 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, Certas Home and Auto Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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?
2. Is the Applicant entitled to receive a medical benefit for the following treatment plans: i. OCF-18 dated February 24, 2020 for a psychological assessment in the amount of $2,200.00? ii. OCF-18 dated May 8, 2020 for psychological services in the amount of $3,641.00? iii. OCF-18 dated May 25, 2020 for a laptop in the amount of $1,270.00?
3. Is the Applicant entitled to interest on overdue payment of benefits?
4. Is the Applicant entitled to an award under Regulation 664 because the Respondent unreasonably withheld or delayed payments to the Applicant?

RESULT

3Based on the totality of the evidence before me, I find:

i. The applicant has proven her injuries warrant her removal from the MIG. ii. The applicant is entitled to a psychological assessment. iii. The applicant is entitled to psychological services. iv. The applicant is entitled to the cost of a laptop. v. The applicant is entitled interest. vi. I find that the respondent is not liable to pay an award under s. 10 of O. Reg. 664.

PROCEDURAL ISSUES

4The respondent raises a procedural issue. The applicant’s written submissions to the Tribunal are 14 pages in length. The Case Conference Report and Order limits the number of pages to ten.

5The respondent submits that the applicant agreed to the number of pages at the case conference and could have brought forth a motion seeking to increase the number of pages but didn’t do so.

6The respondent requests equal number of pages in order to adequately present its case or for the Tribunal to only consider the first ten pages submitted.

7The applicant did not provide any reply submissions.

8The first ten pages of the applicant’s submissions will be considered for the purpose of this hearing. The Case Conference Report and Order clearly sets out the number of pages agreed to at the case conference. The applicant did not file a motion requesting more pages and she has not provided me with reasons for non-compliance.

ANALYSIS

Minor Injury

9An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1) of the Schedule. 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.” The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.

10In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if 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.

11The applicant submits that she sustained psychological issues as a result of the accident which warrant her removal from the MIG. In support of her position, she relies on the opinions of Dr. Steiner, and the respondent’s s. 44 assessor Dr. Fabio Salerno’s report.

12Dr. Leon Steiner, Psychologist conducted a full psychological assessment by telephone and determined in a report dated April 30, 2020 that the applicant suffers from Major Depressive Disorder, Somatic Symptom Disorder and Specific Phobia – Situational Phobia. The assessment included a clinical interview over the telephone and a series of self-report questionnaires, the applicant was not seen in person. This assessment was not approved by the respondent but was none-the-less incurred by the applicant as she submits her accident related injuries warranted the examination.

13The applicant reported to both Dr. Steiner and Dr. Salerno that she has difficulty falling and staying asleep without a sleeping pill, difficulty getting out of bed, she is triggered when she sees another accident and feels nervous and sad. She fears what will happen to her son if something bad happens to her. Further she has a decreased appetite, a diminished desire to socialize, and increased anxiety around driving and reports that her “…..mood and personality changes are extreme”. Overall, the applicant reports significant changes post accident that have changed her overall daily activities from prior to the accident. She does acknowledge that she had pre-existing depression prior to the accident which she reported to her family doctor. However, she submits that her psychological issues have been exacerbated by the subject accident. Subsequently after Dr. Steiner completed the assessment, he made a recommendation that the applicant should attend 12-16 sessions of psychotherapy over a period of three to four months.

14A psychological progress report was conducted by Dr. Hidayatullah Sherzad, Registered Psychotherapist, it is unknown if it was conducted in person or by telephone, on June 27, 2021 and it is not clear what medical records he reviewed before making his recommendation.

15Dr. Sherzad confirms the applicant completed twelve psychotherapy sessions as recommended by Dr. Steiner as part of her treatment plan. The goal of the treatment was to help her manage physical and psychological difficulties that emerged following the subject motor vehicle accident.

16Throughout the sessions Dr. Sherzad reports that the applicant has been working on learning Cognitive Behavioural Therapy techniques to assist with harmful thinking patterns and to ease the symptoms of anxiety, she continues to be open to further learning and both the provider and the applicant feel further therapeutic support is necessary at this time to bring her back to her pre-accident levels. It is recommended that she receives ongoing counselling for a twelve week period at one hour per week.

17The applicant also directs me to review the s. 44 assessor’s report from Dr. Salerno, a Registered Psychologist who conducted an in person s. 44 assessment on December 9, 2020. She indicates that Dr. Salerno documented in his report the same symptoms as Dr. Steiner. She also notes that cultural nuances may have played a role in her responses to the doctor which affected his ability to make a proper determination.

18The respondent disagrees with the applicant’s position and submits the applicant has not met her burden of proving that she has suffered a psychological impairment warranting her removal from the MIG.

19The respondent points to the applicant’s family doctor’s clinical notes and records dated January 15, 2020 and on March 30, 2020 and submits that the applicant did not raise any psychological complaints to her doctor, and in the second visit only complained of physical pain to the back and neck, never anything psychological. Further, there is no evidence she followed through on a psychiatric referral made by her family doctor in January of 2022. These two factors alone suggest that she does not in fact require psychological treatment. Further, Dr. Steiner did not meet with the applicant in person to assess her and did not review any other material. His assessment is strictly based on her subjective reporting in the questionnaires and in the interview.

20In support of it’s position the respondent points me to a report conducted by Dr. Salerno a Registered Psychologist who conducted an in person s. 44 assessment on December 9, 2020 and reviewed her medical files.

21The respondent requests that I give more weight to this report than that of Dr. Steiner as Dr. Steiner primarily relied on the applicant’s subjective reporting in a telephone interview and a series of questionnaires and was held via telephone.

22I am persuaded by the respondent’s argument that more weight should be given to this report as Dr. Salerno did a more comprehensive review of the applicant’s medical file and took into consideration her subjective reporting before making a determination.

23The applicant submitted that the Dr. Steiner and Dr. Salerno both indicated the same symptoms in their reports and that I should take that into consideration. I disagree with the applicant in that point. The reason both reports have similar mention of those symptoms is because of the applicant’s self reporting. I find Dr. Salerno did not make those findings in his report.

24Upon comparing all three reports presented by both parties, the applicant maintained a consistent self report of her symptoms throughout.

25The conclusion in Dr. Salerno’s report is that he could not provide a DSM-5 diagnosis, but I find that he did not entirely rule out a psychological impairment. Given the lack of objective data due to over-reporting or negative response bias, Dr. Salerno determined that the applicant provided insufficient objective evidence to make a DSM-5 diagnosis. However, when asked by the respondent “What injuries did the client sustain as a direct result of the accident” Dr. Salerno’s response was: “In my opinion when considering all points of reference from today’s examination, Ms. Ahmed likely exhibits some psychological symptoms as a direct result of the subject accident…”.

26In his report, Dr. Salerno also states that a possible explanation for the over-reporting validity scale, which was rendered invalid, could be “….uncooperative test taking approach, perceived injustice, or cultural nuances….” but language is not a factor in the testing as she was able to clearly understand and respond to the questions with the use of an interpreter.

27I find respondent’s submission that the applicant has not attended any psychological treatment post 2022 as per the referral of her doctor, of limited value. There may be several determining factors as to why that is the case to which neither party has made any submissions.

28Upon reviewing the totality of the evidence, I find the applicant has proven she has suffered a psychological impairments; Major Depressive Disorder, Somatic Symptom Disorder and Specific Phobia-Situational Phobia which warrants her removal from the MIG. It is well accepted that psychological injuries warrant removal from the MIG because the definition of minor injury in the Schedule does not include psychological impairments.

DISPUTED TREATMENT PLANS and assistive devices

29I must now determine whether the treatment plans in dispute are reasonable and necessary. Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of an accident.

The applicant is entitled to a psychological assessment and treatment plan.

30The Applicant submits that the costs of the treatment plans are reasonable to help address the goal of symptom management and return to pre-accident levels of psychological functioning. She points to her ongoing treatment with her General Practitioner Dr. Guirgues and Dr. Steiner’s report which supports ongoing professional intervention to avoid a chronic condition and prolonged treatment.

31Dr. Steiner opined that a complete and thorough assessment is necessary to investigate the applicant’s psychological condition post accident, followed by the appropriate treatment plans.

32The applicant submits she has in fact already incurred the cost of the assessment due to the severity of the applicant’s accident-relate injuries and her present condition. Further one of the recommended treatment plans dated May 8, 2020 and denied by the respondent was consumed by the applicant for psychological treatment.

33The psychological progress report conducted June 27, 2021 concludes the applicant continues to struggle with ongoing anxiety, low mood, negative thinking patterns and depression. A recommendation of 12 more weeks of counselling was made and another OCF-18 treatment plan in the amount of $3,341.93 on July 28, 2021. It was submitted and denied but is not being disputed at this hearing.

34The respondent submits the applicant has not met her burden that she has endured a psychological impairment that warrants any type of psychological assessment or treatment. As per Dr. Salerno’s report, the objective findings were inconclusive, and she did not meet the DSM-5 threshold.

35I find although Dr. Salerno was not able to make an objective determination that met the DSM-5 criteria, he did not unequivocally rule out as demonstrated above that the applicant did not suffer any psychological injuries due to this accident.

36Based on Dr. Steiner’s recommendations, Dr. Hidayatullah Sherzad progress report and Dr’s Salerno’s report, I find that the assessment and treatment plan are reasonable and necessary.

Laptop

37The applicant submits at the time she needed psychological treatment, a tablet or a computer was required due to COVID-19.

38Despite the denial, the OCF-18 dated May 25, 2020 was consumed in order for the applicant to start receiving what she felt was required psychological treatment. Prior to acquiring a laptop or tablet, the applicant was unable to attend virtual sessions with her psychologist.

39Dr. Steiner supports the need for a laptop. He opined that a laptop is a reasonable and necessary assistive device which would assist the applicant to continue with treatment with an experienced psychotherapist from home and attend medical visits through virtual/video therapy and Telehealth treatment in Ontario.

40The respondent on the other hand disagrees. It submits a laptop is not reasonable or necessary, and it takes the position that in order for it to be reasonable and necessary, it must be addressing an accident related impairment. The applicant attributes the need for a laptop because of the COVID-19 closures, not because of the accident itself, therefore a laptop if not reasonable and necessary.

41The respondent also relies on a s. 44 report by Mr. Nicolas Livadas dated December 1, 2020 in which he does not recognize the need for any assistive devices.

42I find the laptop is reasonable and necessary. The applicant sought psychological treatment at a time where in person appointments were occurring at best minimally. I agree with Dr. Steiner’s position that without a laptop she may have not been able to access treatment.

Interest

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find the applicant is entitled to interest for each of the treatment plans as specified in this order.

Award

44The 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. A special award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning “behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

45The applicant submits the respondent acted in bad faith when it was provided by the applicants medical documentation that supported her accident-related injuries and it chose to deny the OCF-18 for a psychological assessment and the OCF-18 dated May 8, 2020.

46The applicant further submits that the respondent sent a Notice of Insurer examination almost a month after the receipt of the OCF-18 dated in or around May 8, 2020 which she submits was not in compliance with s. 44 of the Schedule. It did not contain any medical reasons for the examination.

47The respondent takes a strong position that an award is not warranted in this case. The applicant has not met her onus to meet the test the respondent’s actions warrant a special award.

48The respondent submits that the applicant erred when she stated that the respondent did not respond to the OCF-18 dated May 8, 2020 until June 4, 2020. It submits request was denied on May 22, 20, 2022 in accordance with s. 38(11) of the Schedule.

49I find it is well settled that an award under Regulation 664 should not be ordered simply because an insurer may have made an incorrect denial. I do not find the respondent acted in an unreasonable manner. It’s denial was not excessive, imprudent, stubborn, or inflexible.

50The applicant is not entitled to an award.

ORDER

51The applicant has proven her injuries warrant her removal from the MIG.

52The applicant is entitled to a psychological assessment.

53The applicant is entitled to psychological treatment.

54The applicants is entitled to the cost of the laptop.

55The applicant is entitled interest.

56I find that the respondent is not liable to pay an award under s. 10 of O. Reg. 664.