Licence Appeal Tribunal File Number: 23-014525/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:
Peter Nielsen
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Estella Muyinda
APPEARANCES:
For the Applicant:
William Keele, Counsel
For the Respondent:
Lora Castellucci, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Peter Nielsen, the applicant, was involved in an automobile accident on April 2, 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, Economical Mutual 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:
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 $3,615.65 for psychological services, proposed by Dr. Bita Sharifzadeh in a treatment plan/OCF-18 (“plan”) dated September 1, 2023?
iii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Mind By Design in a treatment plan dated July 31, 2023?
iv. Is the applicant entitled to $2,200.00 for a family Psychological Assessment, proposed by Dr. Bita Sharifzadeh in a treatment plan dated August 31, 2023?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. 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 $3,615.65 for psychological services, proposed by Dr. Bita Sharifzadeh in a treatment plan dated September 1, 2023.
6The applicant is entitled to $2,200.00 for a psychological assessment, proposed by Mind By Design in a treatment plan dated July 31, 2023.
7The applicant is not entitled to $2,200.00 for a family psychological assessment, proposed by Dr. Bita Sharifzadeh in a treatment plan dated August 31, 2023.
8The respondent is not liable to pay an award under s. 10 of Reg. 664.
9The applicant is entitled to interest on any overdue payment of benefits.
ANALYSIS
Application of the Minor Injury Guideline (MIG).
10Section 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.”
11An 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 Mi 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.
12In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
13I 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 sustained psychological injuries because of the accident.
14The applicant submits that he should be removed from the MIG as he has sustained a psychological injury because of the accident.
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 applicant submits that because of the accident he suffers from post-traumatic stress disorder, somatoform disorder, anxiety, vehicular anxiety, depression, headaches, dizziness, and shoulder pain.
17The applicant submits that he did not visit a physician to follow up on any of his injuries that he may have sustained following the accident. At the time the applicant was involved in the accident he was a minor, aged 10 years old. The applicant’s mother, the primary caregiver, was also involved in the accident. As stated in the clinical notes and records of Dr. Meera Nathwani, family physician, the applicant’s mother had a concussion that rendered her incapable of caring for him. Dr. Nathwani states that it is the applicant who was caring for his mother.
18According to the clinical notes and records of Dr. Stella Arbitman, physician, dated June 21, 2019, the applicant’s school diagnosed him with possible attention hyperactivity disorder, (ADHD). Dr. Arbitman referred the applicant for a consultation to Dr. Jeff Weisbrot, psychologist. In the clinical notes dated April 13, 2020, Dr. Weisbrot indicated that the focus of the consultation was the inattentiveness, difficulty listening and disruption of class by the applicant. The consultation by Dr. Weisbrot took place approximately ten days after the accident. I note that Dr. Weisbrot’s clinical notes and records do not highlight any discussion about the accident with the applicant although he made a note of it.
19The applicant had several follow up visits with Dr. Weisbrot. During the follow up visits from June 3, 2020, to April 7, 2021, the records show that the focus was placed mostly on the relationship of the applicant and the estranged relationship he had with his father and the dynamics between the applicant’s parents. According to Dr. Weisbrot’s notes dated June 11, 2020, he indicated that the applicant was assessed and diagnosed with ADHD and trial medication was prescribed.
20The applicant’s psychological condition was first linked to the accident when Dr. Meera Nathwani, family physician, recorded in the clinical notes and records dated April 12, 2022, that the applicant stated that the accident happened to him too.
21Then, in the clinical notes and records dated April 12, 2022, and June 20, 2022, Dr. Nathwani noted the applicant described the accident, recounting his stress when his mother was unconscious and when he helped her because she could not walk. Additionally, Dr. Nathwani stated that the applicant experienced severe car sickness to the extent that he does not visit family in different places that requires him to travel by car. Dr. Nathwani’s clinical notes dated August 23, 2022, show that the applicant has vehicular anxiety as it was reported by his mother that he threw up in the car even while it was moving at a slow speed.
22The applicant was referred by Dr. Nathwani for counselling at Lumenus Community Services. Part of the counselling as described by Shira Osher, child, adolescent, parent and family psychotherapist, dated February 19, 2023, focused on helping the applicant express his feelings following the accident and self reflection around the impact of the accident. Dr. Nathwani also referred the applicant to MGH Child Adolescent, Mental Health Outpatient due to his psychological symptoms. This was followed by referrals for psychological treatment at Michael Garon Hospital on June 21, 2022, February 13, 2023, and March 2, 2023.
23In the assessment report dated September 14, 2023, Dr. Sharifzadeh, psychologist, diagnosed the applicant with post-traumatic stress disorder, (PTSD) and somatoform disorder under DSM-5 criteria. Dr. Sharifzadeh opined that the applicant experienced emotional and psychological difficulties following the accident. Additionally, Dr. Sharifzadeh said that the applicant experienced in-vehicle psychological fear, nervousness, and accident recollections. She opined that the applicant’s testing results indicated mild clinical depression. I find that Dr. Sharifzadeh’s assessment of the applicant’s experience in a vehicle corresponds with Dr. Nathwani’s clinical notes.
24At the time, the applicant was 13 years of age, he was assessed by Dr. Milorad Vukovic, child and adolescent psychiatrist. In Dr. Vukovic’s report dated May 27, 2024, he noted that the applicant had received physical therapy and individual psychotherapy since the accident. He opined that the applicant had significant right shoulder pain, recurrent headaches and occasional depression two days a week. Dr. Vukovic recommended more psychotherapy sessions and a specialist for the applicant’s shoulder pain.
25The respondent relies on the report of Dr. Ricardo Harris, psychologist. In his report dated October 13, 2023, and addendum report, dated May 13, 2024, Dr. Harris opines that the applicant did not have any accident-related psychological impairments. Dr. Harris opined that there was no diagnosis that could be granted to the applicant according to the DSM-5 criteria of the American Psychiatric Association. Dr. Harris opined that the applicant does not suffer from a concurrent psychological condition that would prevent him from achieving maximal recovery of his minor injury if subject to the $3500 limit.
26Furthermore, the respondent submits the applicant has not proven that he should be removed from the MIG because, firstly, there were no reports of the applicant’s psychological injury for two years after the accident. Secondly, the respondent is of the view that the constant presence of the applicant’s mother during the applicant’s interview with the s.25 assessor actively influenced the discussion and assessment. The respondent submits that the inconsistencies in the applicant’s reporting to the assessors and the family doctor would also have him remain in the MIG because they show that the applicant has not proven that he should be treated beyond the MIG.
27The respondent also submits that in his addendum after reviewing Dr. Sharifzadeh’s test result of the applicants, Dr. Harris noted that there is a slight elevation in the PTSD scale which he considers to be insignificant and suggested that it was not substantially incapacitating the applicant.
28The applicant submitted in his reply that there is no set period within which symptoms must present to qualify for an exemption from the MIG, particularly in cases of minors. Additionally, the applicant submits that the lack of medical reporting prior to April 2022 is attributable to the age of the applicant and his mother’s injuries.
29I agree with the applicant, and I am persuaded by the clinical notes from Dr. Nathwani that show that the applicant’s accident-related injuries were not addressed immediately following the accident but were subsequently identified and attributed to the accident. I also find that the slight elevation in PTSD scale noted by Dr. Harris is consistent with and supports Dr. Sharifzadeh’s diagnosis.
30I find that the respondent’s submissions regarding the mother’s influence are speculative. I do not find it is unusual for a parent to be present when a minor is being assessed and draw no adverse inference from her presence.
31I find that the applicant has proven, on a balance of probabilities that he sustained a psychological injury as a result of the accident. As such, the applicant has met his onus of proving that his accident-related injuries warrant removal from the MIG.
32As the applicant is outside of the MIG, I must now determine whether the treatment plans in dispute are reasonable and necessary.
33To 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.
34To 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.
35The applicant submits that the three treatment plans for $3,615.65 for a psychological assessment, $2,200.00 for a psychological and in-vehicle assessment, and $2,200.00 for a psychological family assessment proposed by Dr. Sharifzadeh are reasonable and necessary because he suffers from psychological injuries resulting from the accident and requires treatment and rehabilitation for the injuries identified.
36The respondent submits that the applicant has not established that any of the goals and costs of the OCF-18s in dispute were reasonable and necessary because he does not present with any accident-related psychological impairment that achieves the diagnostic threshold as per the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
$3,615.65 for psychological services, proposed by Dr. Bita Sharifzadeh in a treatment plan dated September 1, 2023.
37I find that the applicant is entitled to this treatment plan.
38The applicant relies on the OCF-18 and the report of Dr. Sharifzadeh, psychologist, dated September 1, 2023, who states that the goals of this treatment plan include an in-vehicle anxiety assessment to address anxiety as a driver and/or a passenger and systematic de sensitization to address the driving/passenger phobia/anxiety that has been developed as a result of the subject accident.
39The applicant’s goals will be achieved by the implementation of supplemental supports such as the anxiety flashcard kit, the raw goodies self-care kit, and virtual reality relaxation therapy. To meet the goals, Dr. Sharifzadeh recommended 8 sessions over 1 week.
40The respondent relies on the evaluation of Dr. Harris. In his report, Dr. Harris reviewed the treatment plan submitted by the applicant, and he opined that the applicant does not present with any accident-related psychological impairment.
41The applicant submitted contemporaneous corroborating evidence as reflected in the clinical notes of Dr. Nathwani dated August 13, 2022, and the assessment by Dr. Sharifzadeh, dated September 1, 2023. I am persuaded that the evidence submitted points to the applicant’s vehicular anxiety, as it was reported by his mother that he threw up in the car even while it was moving at a slow speed. Additionally, I find that the evidence submitted lends credence to the position that this treatment plan is reasonable and necessary. As the applicant submitted the requirements that would enable him to achieve the goals that are specifically tailored to address the psychological injury reported in the OCF 18 and the assessment report of Dr. Sharifzadeh’s.
42Having found that the applicant’s psychological impairment is a result of the accident, I find that the psychological assessment and treatment recommended to be reasonable and necessary.
$2,200.00 for a psychological assessment, proposed by Mind By Design in a treatment plan dated July 31, 2023. (I note that this treatment plan is dated July 31, 2023, in the case conference report and order, however, on the OCF-18, it is dated July 21, 2023.)
43The applicant relies on the OCF-18 and the report of Dr. Sharifzadeh psychologist, dated July 31, 2023. The goals of recovery include learning more effective coping mechanisms, pain management skills, relaxation techniques, and education regarding his injury and symptomatology, hurt versus harm, pacing and scheduling of activities to help increase the applicant’s activity level resulting into improved psychological functioning.
44The goals are to be achieved by implementing the treatment plan that will consist of a combination of trauma-focused therapy, cognitive behavioural therapy, mindfulness, narrative therapy, and psychoeducation. Dr. Sharifzadeh states that this treatment will assist the applicant cope with his accident-related pain, trauma, anxiety, and other psychological and emotional challenges.
45To meet the duration goals of the treatment plan, Dr. Sharifzadeh recommended 12 weekly and/or bi-weekly psychotherapy sessions that are time-limited, goal-oriented, and solution-focused.
46The respondent relies on of Dr. Harris’s opinion to state that this treatment plan is not reasonable and necessary. Dr. Harris opines that the applicant did not experience any trauma as a result of the accident. He said that there is no reliable evidence of an accident-related psychological condition. I am not persuaded by the respondent’s submission because there is contemporaneous medical evidence from Dr. Nathwani and Dr. Sharifzadeh that confirms the trauma experienced by the applicant is as a result of the accident.
47I am satisfied that the evidence submitted by the applicant shows that there is a need for a psychological assessment to assist him with meeting the goals set out in the treatment plan. As a result, I find that the clinical notes and records and the wording found in the OCF-18 as well as the resulting report by Dr. Sharifzadeh, all provide sufficient evidence that this psychological assessment is reasonable and necessary. This is reflected in the different forms of psychological testing, and the goals to be achieved as laid out in the OCF-18 and in the report of Dr. Sharifzadeh. Thus, the applicant has persuaded me that the treatment plan has reasonable and necessary goals and methods for treating his injuries. As a result, I find the treatment plan to be reasonable and necessary.
$2,200.00 for a family psychological assessment, proposed by Dr. Bita Sharifzadeh in a treatment plan dated August 31, 2023.
48I find that the applicant is not entitled to $2,200.00 for a family psychological assessment proposed in a treatment plan dated August 31, 2023.
49The applicant submits that the goals listed in this treatment include pain reduction, increase in strength, a return to activities of normal living. Dr. Sharifzadeh’s OCF-18 addendum notes state that a formal psychological assessment is warranted to obtain a thorough understanding of the applicant’s difficulties and plan reasonable treatment. It is proposed that the goals will be achieved by the assessor’s conducting a psychological assessment and interview, clinical testing, consultation with professionals involved in the client's rehabilitation, external file review, and client feedback interview. Dr. Sharifzadeh recommended 1 week duration for the assessor to meet the goals the treatment plan.
50The applicant submitted that Dr. Sharifzadeh opined that the reason for a psychological family relationship assessment was because he had extreme spikes in anxiety and depression that impacted family dynamics. Additionally, Dr. Sharifzadeh indicated that the resulting strain on the applicant would lead to a possible barrier to recovery.
51The respondent submits that Dr. Harris opined that the applicant was not entitled to the treatment plan as he does not present with any accident-related psychological impairment.
52The purpose of an assessment is to determine whether a condition exists. Accordingly, the applicant must submit evidence demonstrating that there are grounds on which to believe that the proposed family psychological condition exists and that it warrants further investigation by way of an assessment. I am not persuaded by the applicant’s submissions because I find this treatment plan to be duplicative of the treatment plans dated July 31, 2023, and September 1, 2023, therefore it is not reasonable and necessary.
53As a result, I find that the applicant has not proven on a balance of probabilities that a family psychological assessment is reasonable and necessary.
Interest
54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
55The 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.
56The applicant submits that he is entitled to a special award because the respondent unreasonably withheld or delayed payments.
57The respondent submits that the applicant is not entitled to a special award because he failed to provide particulars of the special award. Additionally, the respondent states that it acted promptly and reasonably in responding to the applicant’s claims. Further, the respondent states that it responded within the prescribed amount of time, properly scheduled assessments, produced the resulting reports, and at all times adjusted the applicant’s claim in good faith.
58The applicant submitted that he was relying on Plowright v. Wellington, 1993 ONICDRG 66 in support of his entitlement to an award. However, the applicant did not submit any details regarding the award he was seeking. Further, the applicant did not submit any evidence in support of his entitlement.
59Accordingly, I find that the applicant is not entitled to an award because he has not shown that the respondent unreasonably withheld or delayed payment of the benefits.
ORDER
60The applicant has met his onus of proving that his accident-related injuries warrant removal from the MIG.
61The applicant is entitled to $3,615.65 for psychological services.
62The applicant is entitled to $2,200.00 for a psychological assessment.
63The applicant is not entitled to $2,200.00 for a family psychological assessment.
64The respondent is not liable to pay an award under s. 10 of Reg. 664.
65The applicant is entitled to interest on any overdue payment of benefits.
Released: October 14, 2025
Estella Muyinda
Adjudicator