Licence Appeal Tribunal File Number: 24-000745/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:
Siddonnie Ford
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR: Kevin Kovalchuk
APPEARANCES:
For the Applicant: Andrej Rondas, Paralegal
For the Respondent: Mirsa Duka, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Sidonnie Ford, the applicant, was involved in an automobile accident on December 20, 2022, 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 issues in dispute are:
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? Note: The parties agree that the MIG limits have not been exhausted and that there is $1,341.18 remaining.
Is the applicant entitled to a non-earner benefit of $185.00 per week from March 9, 2023, to December 20, 2024.
Is the applicant entitled to the assessments and services proposed by Physiocare and Wellness Clinic, as follows:
i. $4,389.16 for psychological services, in a treatment plan/OCF-18 (“plan”) dated July 18, 2023?
ii. $3,491.00 for chiropractic services, in a plan dated September 25, 2023?
iii. $4,017.04 for chiropractic services, in a plan dated May 29, 2023?
iv. $2,000.00 for a psychological assessment, in a plan dated March 22, 2022?
v. $2,200.00 for an orthopaedic assessment in a plan dated March 22, 2023.
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
Is the appellant entitled to interest on any overdue benefits?
RESULT
3The applicant is removed from the MIG due to a psychological impairment.
4The applicant is not entitled to a non-earner benefit of $185.00 per week from March 9, 2023, to December 20, 2024.
5The applicant is not entitled to the cost of the treatment plans dated September 25, 2023, May 29, 2023, March 22, 2022, and March 22, 2023.
6The applicant is entitled to the cost of the psychological services set out in the treatment plan dated July 18, 2023, and interest which is payable in accordance with s. 51 of the Schedule.
7The applicant is not entitled to an award pursuant to Regulation 664.
ANALYSIS
8The applicant was injured while she was a passenger on a school bus that was struck by another vehicle.
Applicability of the Minor Injury Guideline (“MIG”)
9Section 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 “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”.
10An 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 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 has not established that she sustained physical injuries that would remove her from the MIG.
11The applicant submits that her physical injuries are not predominantly minor as defined in s.3 of the Schedule and that she is therefore not subject to the $3,500.00 limit of the MIG. In this instance the applicant submits no specific argument with respect to why her physical injuries are not predominantly minor.
12The respondent submits that the records form Brampton Civic Hospital, dated January 29, 2024, the clinical notes and records of the applicant’s family physician, Dr. Black, for the period February 17, 2023, to July 18, 2024, as well as a Disability Certificate dated March 9, 2023, together with various x-ray and ultrasound reports all show that the applicant sustained minor physical injuries in the accident.
13I have reviewed these records and agree with the respondent that they all show that the applicant sustained minor physical injuries in the accident.
14In addition, the respondent had the applicant assessed by Dr. Bhangu, Physiatrist on November 6, 2023, pursuant to s.44 of the Schedule.
15Dr. Bhangu opined that the applicant sustained a minor injury as defined by the Minor Injury Guideline. The applicant did report undergoing an MRI of her left shoulder at the Brampton Civic Hospital Emergency Department, but Dr. Bhangu did not have the results. If the applicant had not undergone an MRI of her left shoulder Dr. Bhangu recommended that she should be referred for an MRI of her left shoulder to rule out any underlying pathology.
16Contained within the clinical notes of Dr. Black is an ultrasound report dated January 29, 2023. It reported that no rotator cuff pathology could definitely be identified, and that the applicant’s rotator cuff was grossly unremarkable and intact. A left shoulder MRI report dated July 6, 2023, from the Brampton Civic Hospital Diagnostic Imaging Department reports no evidence of acute tear and that the subscapularis, infraspinatus and teres minor tendons are all intact. It also notes no acute rotator cuff tear.
17Because the applicant has made no specific argument with respect to why her physical injuries are not predominantly minor and because of the medical reports referred to earlier as well as the report of Dr. Bhangu, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that she should be removed from the MIG due to physical injuries. It is not this Tribunal’s role to search through the evidence and make the argument on behalf of the applicant: see Dooman v. TD Insurance, 2025 ONSC 184 at para. 50 (Div. Ct.).
The applicant has stablished that she sustained a psychological impairment.
18I find that the applicant has provided sufficient evidence of a psychological impairment that warrants removal from the MIG.
19Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that she had a psychological impairment and not symptoms that are sequalae of a minor injury.
20The applicant submits that she suffers from post traumatic stress disorder (“PTSD”) as a result of the accident. The applicant relies on reports from Dr. Svetlana Gabidulina, Psychologist, Dr. Gloria Fiati, Psychologist as well as the clinical notes and records of the applicant’s family physician Dr. Black, in support of her position.
21The respondent submits that the applicant did not sustain a psychological impairment but rather, had pre-existing psychological problems that were not aggravated by the accident. The respondent submits that if the applicants pre-existing conditions were worsened by the accident, she has failed to provide evidence of how they were worsened. In addition, the respondent relies upon a s.44 report of Dr. Rubenstein, Psychologist.
22Dr. Gabidulina’s report is dated July 24, 2023. The applicant was referred to Dr. Gabidulina for a s. 25 assessment. Dr. Gabidulina conducted a clinical interview and administered a number of tests. She opined that the applicant met the DSM-5 criteria for features of post-traumatic stress disorder as well as “Situational (isolated) Phobias, severe (automobile anxiety- passenger)”, which were a direct result of her accident of December 20, 2022. Dr. Gabidulina goes on to opine that the applicant’s current symptoms are beyond the criteria outlined in the MIG.
23Dr. Fiati’s report is dated July 27, 2023. The applicant’s parents referred her to Dr. Fiati for a Psycho-Educational Assessment “to evaluate her current cognitive abilities, academic functioning, identify her learning style and determine recommendations as well as support and accommodations the (applicant) may need as she enters college in the Fall of 2023”. Dr. Fiati focussed on the applicant’s pre-accident and post accident learning difficulties as opposed to her accident-related psychological impairments. Dr. Fiati made recommendations to provide strategies and accommodations to help the applicant cope academically. Because Dr. Fiati was asked to conduct a Psycho-Educational Assessment I assign little weight to her report, in the context of this appeal because the focus was not on her accident-related impairments.
24The clinical notes and records of Dr. Black contain a Mental Health Consultation Report of Dr. Sidhu dated February 7, 2024. The applicant was referred to Dr. Sidhu by Dr. Brown from the Brampton Civic Hospital emergency department “after she presented there on October 22nd (2023), complaining of nightmares, flashbacks, and insomnia since she had been in a school bus accident in December 2022.”
25The applicant told Dr. Sidhu that she was having frequent nightmares about car crashes since her accident, had a fear of riding in a school bus and would only ride in the back seat of her mother’s car. She also told Dr. Sidhu that she was having flashbacks several times per week.
26Dr. Sidhu noted that the applicant denied any history of sexual, physical, or verbal abuse but has been struggling with PTSD symptoms such as nightmares, flashbacks, hypervigilance and avoidance since her motor vehicle accident.
27Dr. Sidhu obtained a substance use, developmental, social, educational, medical and past psychiatric history from the applicant and conducted a mental status exam. His diagnosis was post-traumatic stress disorder. He started the applicant on Prazosin 1 mg po (by mouth) nightly to help combat nightmares and hyperarousal symptoms of PTSD.
28Dr. Sidhu saw the applicant again on May 1, 2024. The applicant reported that the Prazosin was working well, and the doctor added Trazadone 50 mg to her medications. His diagnosis was PTSD, severe intellectual disability, history of anxiety and seizures in infancy.
29The clinical notes and records of Dr. Black also show that on May 3, 2023, the applicant told Dr. Black that she had been sleeping less since her school bus injury. She reported that she had been afraid to take the school bus especially where the accident happened. She also reported that her pre-existing anxiety had worsened since the accident. She further reported that her anxiety wakes her up at nights disturbing her sleep “most nights”. Both the applicant and her mother felt the applicant was more timid in public. Dr. Black noted that the applicant, appeared tired.
30On June 28, 2023, the applicant’s mother told Dr. Black that the applicant had been having disturbances in her sleep patterns since January. At that visit, the applicant reported that she was having bad dreams occasionally that would wake her up. On September 27, 2023, the applicant told Dr. Black that she was still experiencing recurrent stress related to her motor vehicle accident. Dr. Black noted that the applicant appeared “stressed.” On November 20, 2023, in a telephone consultation, the applicant reported to Dr. Black that she “was not sure why she cannot fall asleep but stated that she had a racing mind at nights.” On December 13, 2023, the applicant told Dr. Black that she had been having trouble sleeping for several months. She also reported having occasional bad dreams that were mostly premised on her being on a school bus. At that time, Dr. Black noted that the applicant had a “flat affect.”
31The respondent relies on the report of Dr. Rubenstein dated December 7, 2023. Dr. Rubenstein reviewed the medical documentation provided to him which included the clinical notes and records of Dr. Black. Dr. Rubenstein opined that his psychological examination failed to confirm any identifiable psychological impairment related to the accident.
32The respondent submits that the Tribunal should prefer the report of Dr. Rubenstein over the report of Dr. Gabidulina because he reviewed the applicant’s medical records and Dr. Gabidulina did not.
33I prefer the reports of Dr. Sidhu and Dr. Gabidulina over the report submitted by Dr. Rubenstein. Dr. Sidhu was not retained by either party but rather, saw the applicant because or a referral from an E.R. doctor, Dr. Brown. Dr Sidhu independently confirmed Dr. Gabidulina’s diagnosis that the applicant suffers from PTSD as a result of her motor vehicle accident. There is no evidence of significance before me that the applicant’s PTSD was caused by anything other than her motor vehicle accident. I also note that the clinical notes and records of the applicant’s family doctor, Dr. Black show that the applicant reported sleep disturbance, bad dreams about being on a school bus an increase in anxiety, as well as recurrent stress related to her motor vehicle accident.
34Based on the clinical notes and records of Dr. Black, the report of Dr. Gabidulina and the reports of Dr. Sidhu I find that the applicant has established on a balance of probabilities that the sustained a psychological impairment namely PTSD and should be removed from the MIG.
The applicant is not entitled to a non-earner benefit (“NEB”).
35Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident”. The Court of Appeal set out the guiding principles for NEB entitlement in Heath v Economical Mut. Ins. Co., 2009 ONCA 391, which generally, focuses on a comparison of the applicant’s pre-and post-accident activities.
36The applicant submits that she is entitled to an NEB of $185.00 per week from March 9, 2023, to December 20, 2024. She submits that a Disability Certificate dated March 9, 2023, noted that the applicant suffered a complete inability to carry on a normal life.
37The applicant also submits that Dr. Gabidulina concluded that the applicant suffered a complete inability to carry on a normal life.
38The respondent submits that the applicant has failed to show on a balance of probabilities that she meets the test of entitlement for a NEB. The respondent relies upon the decision in Heath and submits that the applicant had not put forth any evidence or comparison of her life before and after the accident. In support of its position the respondent relies upon the section 44 assessment of Sarah Maddix, Occupational Therapist dated March 21, 2024.
39The Disability Certificate referred to by the applicant notes that the applicant does suffer a complete inability to carry on a normal life for 9 to 12 weeks. The same Disability Certificate notes that the applicant is not unable to continue in an elementary secondary or post-secondary education program that the applicant was enrolled in at the time of the accident.
40The report of Dr. Gabidulina dated July 24, 2023, notes that at the time of the accident the applicant was in Grade 12 and that the applicant would be attending Humber College in September of 2023. Dr. Gabidulina’s report does not provide a comparison of the applicant’s pre-accident and post accident activities.
41The report of Sarah Maddix dated March 24, 2024, does provide a comparison of the applicants pre and post accident activities.
42The applicant reported to Ms. Maddix, the following daily routine prior to the accident:
Wake-up at 7:00 am
Go to the bathroom.
Go downstairs.
Have breakfast.
Go to the bus stop.
Attend school from 8:05 am until 2:25 pm
Take the bus home.
Shower
Do homework.
Eat dinner.
Go to bed.
43The applicant reported to Ms. Maddix, the following current daily routine.
Have breakfast.
Go to the bus stop.
Take the bus to Humber College
Attend school.
Come home.
Have dinner.
Shower
Do homework.
Go to bed.
44Ms. Maddix reported that the applicant was attending Humber College enrolled in Baking and Pastries.
45I find that the applicant has not proven on a balance of probabilities that she is entitled to an NEB. In coming to my decision, I rely on the principles set out in Heath that entitlement to an NEB should focus on a comparison of the applicant’s pre-and post-accident activities. The applicant has not provided such a comparison.
46I do however accept the comparison provided by occupational therapist Sarah Maddix. The comparison of her pre-and post accident activities was provided to Ms. Maddix by the applicant herself and I therefore assign great weight to it. The comparison reveals no difference between the applicant’s pre-and post-accident activities.
47I find on a balance of probabilities that the applicant has not proven that she has an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. I therefore find that the applicant is not entitled to a NEB.
48To 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.
49This treatment plan is for a psychological assessment to be conducted by Dr. Gabidulina. The goals of the plan were listed as pain reduction and other(s). The plan notes that a patient pre-screen report was to follow by fax. The pre-screen report was not included in the submissions of the applicant or the respondent.
50Aside from providing the treatment plan, the applicant has made no submissions as to why the plan is reasonable and necessary.
51The respondent argues that the applicant has not submitted any evidence to prove that the treatment plan is reasonable or necessary.
52Because the applicant has not made any submissions as to why this treatment plan is reasonable and necessary I find that she has not met her burden of establishing on a balance of probabilities that the benefit proposed by the plan is reasonable and necessary as a result of the accident.
53This treatment plan is for an orthopaedic assessment.
54Aside from providing the treatment plan the applicant has made no submissions as to why the plan is reasonable and necessary.
55The respondent argues that the applicant has not submitted any evidence to prove that the treatment plan is reasonable or necessary.
56Because the applicant has not made any submissions as to why this treatment plan is reasonable and necessary I find that she has not met her burden of establishing on a balance of probabilities that the benefit proposed by the plan is reasonable and necessary as a result of the accident.
57This treatment plan is for chiropractic, physiotherapy and massage therapy. services. Other than providing the treatment plan, the applicant has not made any submissions as to why the treatment plan is reasonable and necessary.
58The respondent submits that the applicant has not submitted any evidence to prove that the treatment plan is reasonable or necessary.
59Because the applicant has not made any submissions as to why this treatment plan is reasonable and necessary I find that she has not met her burden of establishing on a balance of probabilities that the benefit proposed by the plan is reasonable and necessary as a result of the accident.
60This treatment plan is for chiropractic, physiotherapy and massage therapy. services. Other than providing the treatment plan, the applicant has not made any submissions as to why the treatment plan is reasonable and necessary.
61The respondent submits that Dr. Bhangu, Physiatrist in a report dated December 7, 2023, noted that the applicant had achieved maximum medical improvement and that further facility- based treatment was not reasonable and necessary.
62Dr. Bhangu saw the applicant on November 6, 2023, for a s. 44 assessment.
63The respondent further submitted that the applicant has not submitted any evidence to prove that the treatment plan is reasonable or necessary.
64I am therefore left with the evidence of Dr. Bangu that as of November 6, 2023, the applicant did not require any further facility-based treatment.
65Because of the evidence of Dr. Bhangu and because the applicant has not made any submissions as to why this treatment plan is reasonable and necessary I find that she has not met her burden of establishing on a balance of probabilities that the benefit proposed by the plan is reasonable and necessary as a result of the accident.
66The plan is for 16 psychotherapy sessions to be conducted by Sandra Ramnarine, Registered Psychotherapist under the direct supervision of Dr. Gabidulina, Registered Psychologist, for a total cost of $3,590.72. In addition, there is a preparation service fee of $149.61, a documentation fee of $200.00 and a planning service fee of $448.83 for a total of $4,389.16.
67The applicant relies on the Mental Health Consultation Report of Dr. Sidhu dated February 7, 2024, wherein Dr. Sidhu reports that he had given the applicant a website address in order for her to be able to find private therapy that specializes in PTSD.
68The respondent relies on the s. 44 report of Dr. Rubenstein dated December 7, 2023, wherein he opines that the plan dated July 18, 2023, was not reasonable or necessary.
69The respondent has submitted an Explanation of Benefits (“EOB”) that was revised on October 4, 2023. The EOB noted that the respondent had reviewed the plan proposing psychotherapy and had considered the treatment not to be reasonable and necessary. The respondent provided detailed reasons for the denial. It noted that the applicant had been diagnosed on July 24, 2023, by Dr. Gabidulina with Features of Post Traumatic Stress Disorder and Situational Phobias. It also noted that the respondent had reviewed the clinical notes and records of Dr. Black up to May 31, 2023. The respondent referenced Dr. Black’s note of May 3, 2023, that the applicant had been sleeping less since the accident, was afraid of taking the school bus since the accident and that her pre-existing anxiety had worsened since the accident.
70I noted earlier in these reasons that, the clinical notes and records of Dr. Black also show that on May 3, 2023, the applicant reported that her anxiety wakes her up at nights disturbing her sleep “most nights”. In addition, Dr. Black reported that both the applicant and her mother felt the applicant was more timid in public. Dr. Black also noted that the applicant, appeared tired when she saw her on May 3, 2023.
71The respondent in its EOB of October 4, 2023, did not mention that the applicant’s anxiety wakes her up at nights disturbing her sleep most nights or, that the applicant and her mother both felt that she was more timid in public. Also, the respondent did not mention Dr. Black’s observation that the applicant appeared tired.
72I find that by October 4, 2023, there was enough evidence contained in Dr. Black’s clinical note of May 3, 2023, to corroborate the diagnosis of PTSD made by Dr. Gabidulina on July 24, 2023, as well as her recommendation that the applicant undergo 16 counselling sessions.
73As noted earlier in these reasons, Dr. Gabidulina’s diagnosis was later confirmed on February 7, 2024, by Dr. Sidhu the applicant’s treating doctor.
74I find that because of the evidence of Dr. Gabidulina as well as the evidence of Dr. Black and Dr. Sidhu, the applicant has met her onus of demonstrating on a balance of probabilities that the benefit sought in the plan dated July 18, 2023, is reasonable and necessary as a result of the accident.
Interest
75Pursuant to section 51 of the Schedule the applicant is entitled to interest for the plan dated July 18, 2023.
The applicant is not entitled to an award pursuant to Regulation 664.
76Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled.
77I find that the applicant is not entitled to an award. It is well-settled that in order for an award to be made, the respondent’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate and the evidentiary onus is on the applicant to demonstrate this.
78The applicant submits that the respondent failed to assess ongoing medical evidence provided by the applicant throughout the claim and that the respondent failed to properly assess the treatment plans in dispute and as such, the applicant is entitled to an award.
79The respondent submits that it adjusted the claim in good faith and based its, decisions on the s. 44 assessments it obtained.
80The respondent further submits that special awards are based on the conduct of the insurer throughout the entire adjustment of a claim.
81I find the evidence does not indicate that the respondent has acted in an excessive, imprudent, stubborn, inflexible, unyielding, or immoderate way. In the absence of such evidence, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that she is entitled to an award.
ORDER
82As a result of the above and on a balance of probabilities I find that:
i. The applicant is removed from the MIG due to a psychological impairment.
ii. The applicant is not entitled to a non-earner benefit of $185.00 per week from March 9, 2023, to December 29, 2024.
iii. The applicant is not entitled to the cost of the treatment plans dated September 25, 2023, May 29, 2023, March 22, 2022, and March 22, 2023.
iv. Th applicant is entitled to the cost of the psychological services set out in the treatment plan dated July 18, 2023, and interest which is payable in accordance with s. 51 of the Schedule.
v. The applicant is not entitled to an award pursuant to Regulation 664.
Released: November 27, 2025
Kevin Kovalchuk
Vice-Chair