Kloeze v. Sonnet Insurance Company, 2025 CanLII 102213

Citation: Kloeze v. Sonnet Insurance Company, 2025 ONLAT 23-014298/AABS

Licence Appeal Tribunal File Number: 23-014298/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:

Patrick Kloeze

Applicant

and

Sonnet Insurance Company

Respondent

DECISION

ADJUDICATOR: Estella Muyinda

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal

For the Respondent: Sunjay Mistry, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Patrick Kloeze, the applicant, was involved in an automobile accident on November 22, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2The applicant was denied benefits by the respondent, Sonnet Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

3The 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 medical services proposed by E. Clinic United Healing, as follows: i. $3,807.20 for psychological services, in a treatment plan/OCF-18 ("plan") submitted August 24, 2023; and ii. $2,525.60 for other assistive devices, in a plan submitted August 24, 2023?
3. Is the applicant entitled to assessments proposed by Q Medical, as follows: i. $2,486.00 for a psychological assessment, in a plan submitted June 19, 2023; and ii. $2,508.60 for a chronic pain assessment, in a plan submitted June 29, 2023?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant has met his onus of proving that his accident-related injuries warrant removal from the MIG.

5The applicant is entitled to the plan for $3,807.20 for psychological services.

6The applicant is partially entitled to the plan for $1,821.60 ($2,525.00 less $703.40) for the assistive devices that align with the psychological injury.

7The applicant is not entitled to the plan for $2,486.00 for a psychological assessment.

8The applicant is not entitled to the plan for $2,508.60 for a chronic pain assessment.

9The applicant is entitled to interest on the plan for psychological services and assistive devices.

ANALYSIS

Application of the Minor Injury Guideline (MIG)

10I find that the applicant has proven on a balance of probabilities that he should be removed from the MIG. Specifically, he has demonstrated that he has a pre-existing condition that warrants removal from the MIG.

11Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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."

12An insured person 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 condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

13In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.

14The applicant submits that he should be removed from the MIG as he has a pre-existing condition. He further submitted that the pre-existing condition has been exacerbated by the accident, and as a result, this condition is a hindrance to his recovery.

15The respondent disagrees and submits that the applicant should remain in the MIG as he has failed to show on a balance of probabilities that his injuries fall outside of the MIG.

16The respondent acknowledges that the applicant has a pre-existing condition. However, it submits that the applicant is not entitled to be removed from the MIG because he has not established that the pre-existing condition prevents him from recovering within the confines of the MIG.

17To establish he has a pre-existing condition, the applicant submits that a few days prior to the accident, Patricia Robinson, nurse practitioner's, clinical notes and records, show that he had manic episodes, depressive symptoms with suicidal ideation and attention difficulties. Subsequently, on November 19, 2020, Dr. Patrick Conlon, psychiatrist, provided a provisional diagnosis of schizoaffective disorder emphasising the applicant's instability.

18There is no dispute that the applicant has a pre-existing psychological condition. The question is whether there is compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG confines, as required by s.18(2).

19The applicant submits that the s.25 assessment report by Dr. Vuyo Mpumlwana, psychologist, dated July 13, 2023, demonstrates that he was diagnosed as having mixed anxiety with depressed mood, low mood, fatigue, memory deficits, concentration issues, and chronic insomnia, post traumatic stress disorder symptoms, severe anxiety, and mild depression.

20The applicant relies on Dr. Mpumlwana's report where she opines that his psychological functioning was significantly affected by the accident. Dr. Mpumlwana states that the applicant's symptoms of depression and anxiety, which he had been dealing with for many years, were escalated by the accident. Further, Dr. Mpumlwana opined that the applicant's condition cannot be adequately addressed under the MIG.

21Upon review of the notes from the applicant's treating physicians at CAMH dated October 4, 2022, I find that the applicant has submitted compelling medical evidence that satisfies section18 (2), due to his pre-existing psychological condition.

22The applicant was referred to CMAH by Dr. Conlon for a diagnostic clarification. The physicians at CAMH opined in the consult note dated October 4, 2022, that the applicant was experiencing symptoms consistent with mania and psychosis leading to a recommendation of prescription medication for the condition. Here, the physicians from CAMH indicated that the applicant had not had any hospital visits since 2014. This leads me to agree with the applicant's submissions that the applicant's psychological condition worsened following the accident.

23Further, the applicant submits that the report from Cheryl Balzer, occupational therapist, dated December 10, 2020, indicates that the applicant was experiencing increased stress since the accident and recommended the continuation of the occupational therapy.

24I am persuaded that the applicant has submitted enough medical evidence from treating physicians showing that he had a pre-existing psychological condition that precludes recovery from any accident-related minor injury, if he was kept within the MIG confines.

25Based upon the foregoing, I find on a balance of probabilities that the applicant has demonstrated that he has a pre-existing condition that warrants removal from the MIG.

26To 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.

27To 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.

$3,807.20 for psychological services proposed by E. Clinic United Healing in a treatment plan submitted on August 24, 2023.

28I find that the applicant is entitled to the treatment plan for psychological services.

29The goals of the treatment plan are pain reduction, return to activities of normal living, and addressing the applicant's emotional impairments. The treatment plan proposed 15 sessions of psychological treatment in the form of cognitive behavioural therapy: each for 1.5 hours, 6 sessions of naturopathic treatment each for 30 minutes, and 6 sessions of yoga and mindfulness-based cognitive therapy for insomnia, each for 30 minutes.

30The applicant submits that the plan focuses on restoring his mental health, enhancing emotional regulation, and promoting day-to-day functioning.

31The applicant states that cognitive-behavioral interventions, such as reframing negative thoughts, strengthening defense mechanisms, and improving self-esteem, aim to facilitate a return to pre-accident levels of productivity and well-being, are therefore, reasonable and necessary to manage the persistent emotional impairment and support his rehabilitation plan.

32The respondent denied this treatment plan based on the reports from Dr. Douglas Saunders, psychologist, dated February 12, 2024, and June 5, 2024. In the reports, Dr. Saunders opined that there is no compelling evidence of any pre-existing or concurrent psychological conditions. As much as it conceded that the applicant had a pre-existing psychological condition, the respondent asserts that it relied on Dr. Saunders' report because the applicant had not submitted compelling medical evidence to satisfy the second part of the test in section18 (2).

33The applicant submitted that Dr. Saunders report failed to consider the extensive medical condition confirming the pre-existing condition, the link between the accident and the worsening psychological impairment he faced as the result of the accident. The applicant asserts that the treatment plan is reasonable and necessary.

34I find that the applicant submitted medical evidence from the professional health service providers he relies on to support the assertion that he is entitled to the proposed psychological services. Thus, establishing that this treatment plan is reasonable and necessary.

35Accordingly, I find that the applicant has demonstrated that the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

36As such, I find that this treatment plan is reasonable and necessary.

$2,525.60 for assistive devices, proposed by E. Clinic United in a plan submitted August 24, 2023.

37I find that the applicant is partially entitled to this treatment plan.

38The goals of the treatment plan include promoting engagement in practices, learning strategies and techniques, with the goal of pain reduction, alleviation of anxious and depressive symptomatology, return to pre-injury functional and independence levels, as well as activities of daily living.

39The applicant submits that anxiety, psychosis, and stress are psychological challenges that complicate physical recovery. He states that the following assistive devices were recommended by Dr. Svetlana Gabidulina, psychologist, to assist in the applicant's recovery: exercise equipment, yoga aids, and a back roll to address physical injuries; meditation tools such as the muse S brain sense headband and relaxation aids help to manage stress and anxiety; cognitive therapy tools such as the mental health journal, cognitive behavioural therapy (CBT) game, and symptom tracker to address his psychological injuries; and transportation to assist the applicant to overcome barriers caused by driving anxiety.

40The applicant states that the assistive devices are required to ensure safe participation in the treatment and activities of daily living, support rehabilitative efforts, promote and engage in practices and strategies and techniques that assist the applicant meet the goals of the treatment plan.

41The respondent submits that the treatment plan is not reasonable or necessary.

42The proposed amount for the treatment plan was for assistive devices was for $2,525.60. I have partially approved a list of meditation and cognitive assistive devise tools in this treatment plan for $1,821.60. The approved assistive devices include a mediation chair, mediation cushion, mediation candle, electronic devices for rehabilitation purposes such as the table for a smart phone prescribed for cognitive rehabilitation, salt lamp, incense set, mindful crystal set, muses S brain sense headband, mindful crystal set, pain and symptom tracker diary, educational material such as hand-outs, books, mental health journal, cards for calm cognitive behavioral therapy game, back roll, yoga blocks, and yoga wheel, because I am persuaded that these assistive devices will support the applicant's recovery from the psychological injury.

43I have not approved $704.40 for the following assistive devices: exercise equipment, a room divider, and transportation to treatment, because the applicant has not persuaded me that these assistive devices will support the applicant's recovery. Thus, I find that the listed unapproved assistive devices are not reasonable and necessary.

44Accordingly, I find that the partial payment for $1,821.60 for the assistive devices is reasonable and necessary. I also find that the cost of the partial payment is reasonable and necessary.

$2,508.60 for a chronic pain assessment in a plan proposed by Q Medical submitted June 29, 2023.

45I find that the applicant is not entitled to this treatment plan.

46The applicant has not submitted any specific evidence to establish how the treatment plan would assist him. Additionally, the applicant has not made any specific submissions pointing to this plan. Therefore, I find that the applicant has not met his burden of proving that the claim for a chronic pain assessment in this treatment plan is reasonable and necessary.

47I find that the applicant has not met his burden of proving that his claim for a psychological assessment was reasonable and necessary.

48Thus, I find that the applicant has not demonstrated on a balance of probabilities that the chronic pain assessment treatment plan is reasonable and necessary as a result of the accident.

Interest

49I find that interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The applicant is entitled to interest in accordance with the Schedule on any overdue payment of benefits.

ORDER

50The applicant has met his onus of proving that his accident-related injuries warrant removal from the MIG.

51The applicant is entitled to the plan for $3,807.20 for psychological services.

52The applicant is partially entitled to the plan for $1821.60 ($2,525.00 less $704.40) for the assistive devices that align with the psychological injury.

53The applicant is not entitled to the plan for $2,486.00 for a psychological assessment.

54The applicant is not entitled to the plan for $2,508.60 for a chronic pain assessment.

55The applicant is entitled to interest on the overdue payment of benefits in accordance with section 51.