Smai v. The Personal Insurance Company, 2025 CanLII 16001

Citation: Smai v. The Personal Insurance Company, 2025 ONLAT 23-005774/AABS

Licence Appeal Tribunal File Number: 23-005774/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:

Malika Smai

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Maka Metreveli, Paralegal

For the Respondent:

Brittanny Tinslay, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Malika Smai (the “applicant”) was involved in an automobile accident on July 15, 2020, 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 Personal Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

The respondent raises the two-year limitation period set out at section 56 of the Schedule to bar the applicant’s dispute of a treatment plan for psychological assessment from proceeding to the written hearing

2I find the applicant has shown she commenced an application to dispute the denial of a treatment plan (“OCF-18”) for psychological assessment within the two-year limitation period specified at section 56 of the Schedule.

3Section 56 of the Schedule provides that an application to dispute a benefit denial shall be started within two years after the insurer’s refusal to pay the amount claimed.

4The respondent submits it denied the OCF-18 in writing on May 14, 2021, and that the applicant did not file her dispute with the Tribunal until May 19, 2023, which is five days after the two-year limitation period expired.

5The applicant agrees the OCF-18 was denied on May 14, 2021, but says that since this was a Friday—and that it takes three business days for in-province mail to be delivered per Canada Post’s mail delivery standards—that the limitation period should apply up to May 19, 2021.

6Under section 56 of the Schedule, an application to the Tribunal is required to be commenced within two years after the insurer’s refusal to pay the amount claimed. When an insurer refuses to pay a benefit, section 54 of the Schedule requires the insurer to provide the insured person with written notice of the insured’s right to dispute the refusal. This is to be read in concert with section 64 of the Schedule, which lists the methods an insurer may use to deliver the notice and when the notice is deemed to have been delivered. In my view, taking these sections together establishes that the limitation period at section 56 of the Schedule is tied to the applicant receiving (or deemed to have received) the written notice of denial as stipulated in sections 54 and 64 of the Schedule.

7I accept the respondent sent the denial notice to the applicant via regular mail as submitted by the applicant. There is nothing on the notice that suggests it was sent by registered mail, email, fax, or otherwise. The respondent’s submissions do not dispute delivery of the notice by regular mail. Section 64(18) of the Schedule provides that, in the absence of evidence to the contrary, a person is deemed to receive anything delivered by ordinary mail on the fifth business day after the day the document is mailed. This is consistent with Section 18(2) of the Statutory Powers Procedure Act (“SPPA”), which deems receipt of regular mail by the fifth day after the day it is mailed. Similarly, Rule 6.2 of the Licence Appeal Tribunal Rules (“LAT Rules”) deems regular mail received on the fifth day after the postmark date, not including holidays.

8As such, I deem the applicant’s receipt of the respondent’s notice to be May 19, 2021, which accounts for five days if the denial notice was mailed at the earliest possible opportunity (i.e., on the same day it was dated). Given the parties agree the application was started on May 19, 2023, I find the applicant complied with the limitation period set out as section 56. I therefore allow the application to proceed to the hearing.

SUBSTANTIVE ISSUES

9The substantive issues in dispute are:

i. Is the applicant entitled to a psychological assessment in the amount of $2,460.00, proposed by 101 Assessment Centre in an OCF-18 dated April 28, 2021, and denied May 14, 2021?

ii. Is the applicant entitled to psychological services in the amount of $2,210.00, proposed by 101 Assessment Centre in an OCF-18 dated December 20, 2021, and denied December 24, 2021?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

10The applicant is not entitled to the disputed OCF-18s or interest.

ANALYSIS

The applicant’s entitlement to a psychological assessment and services

11I find the applicant has not demonstrated that the OCF-18s for psychological assessment and services are reasonable and necessary.

12To receive payment for an OCF-18 under sections 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.

13The applicant submits that the psychological assessment report completed by Dr. Konstantinos Papazouglou (psychologist) on November 4, 2021, offered diagnoses of an adjustment disorder and a specific driving-related phobia. The applicant also relies on the November and December 2023 records of Dr. S. Dief (psychiatrist) to show evidence of psychological impairment. The applicant asserts she did not have a pre-accident history of mental health issues, nor had she previously been prescribed any psychotropic medication. The applicant also relates that the psychological effect of the accident induced nightmares and impaired her sleep, concentration, and focus. She submits she suffers from a loss of interest in life activities, mental fatigue, sadness, low mood, irritability, and a preference for social isolation.

14The applicant goes on to say that psychometric testing performed by Dr. Papazouglou placed the applicant in the severe range on all measures. She relies on 16-002951 v Primmum Insurance Company 2017 CanLII 33672 ON LAT (“Primmum”) to show the Tribunal has accepted the reasonableness and necessity of OCF-18s supported by near identical objective testing results and physician recommendations as this case.

15The respondent argues that there is no objective evidence before the Tribunal to demonstrate that the applicant sustained any psychological impairment following the accident. Rather, the respondent contends that the applicant was having difficulty coping with stress prior to the accident, and that her post-accident medical records show little evidence of psychological complaints.

16The applicant’s submissions do not address the goals of either OCF-18, how those goals would be met to a reasonable degree, or the reasonableness of the costs proposed in the OCF-18s. Having reviewed the written submissions and evidence of both parties, I find the disputed OCF-18s were not included in either hearing brief despite being referred to by both parties in their submissions. But submissions are not evidence, and this hampered the applicant’s case because she provided little persuasive context for the medical evidence she relies on to show the OCF-18s are reasonable and necessary.

17Looking at the applicant’s evidence, I am persuaded she voiced little-to-no complaints of psychological impairment from the time of the accident to the time of Dr. Papazouglou’s November 2021 assessment report—a period that spans more than 15 months. The significance of the July 2023 entry by Dr. Berton Ung (family physician), which reports a history of depression, is diminished by pre-accident evidence in Dr. Ung’s clinical notes and records of June 2020 that similarly indicate complaints of depression, sleeping difficulties and stress. I conclude from this, that the history of depression Dr. Ung refers to in 2023 relates to the pre-accident symptomology he documented in 2020, and not aspects of the applicant’s mental health that resulted from, or were exacerbated by, the accident.

18The respondent’s submissions underscore the lack of evidence to support the applicant’s claims of psychological impairment by directing me to multiple post-accident medical records between August 5, 2020, and February 24, 2021. These records report no complaints of psychological difficulties (i.e., nightmares, fatigue, irritability, or social isolation) and do not include any referrals to mental health specialists for assessments or treatment. These records include a series of consultations with Dr. Ung, KMH Cardiology Inc., HiTek Medical Imaging, and the Toronto Lung Care Clinic. The respondent’s submissions highlight additional medical records—dated onwards from November 10, 2021—that support an ongoing absence of the psychological symptoms reported to Dr. Papazouglou by the applicant. While I accept Dr. Ung referenced “mood” in an April 2022 entry, the legibility of his handwriting made it difficult to reliably establish context, and I therefore afford this evidence little weight.

19I find this lack of contemporaneous evidence of psychological difficulties, combined with the discrepant information provided by the applicant, diminishes the conclusions of Dr. Papazouglou. As established in the clinical records of Dr. Ung, the applicant was complaining of depressive symptoms, stress, and sleep difficulties a month prior to the accident, which is contrary to the information she reported to Dr. Papazouglou. Dr. Papazouglou’s report recommends one-dozen, 90-minute treatment sessions to (1) increase the applicant’s understanding of her symptoms; (2) reduce her avoidance; (3) reduce stress levels by helping her develop more active means of coping; and (4) teach her how her thinking patterns contribute to her negative emotional experience and interfere in her recovery. While I agree these goals make sense when considered within the context of the applicant’s complaints, she failed to show these are, in fact, the treatments and goals proposed in the OCF-18 for psychological services.

20Similarly, I afford Dr. Dief’s August 2023 report less weight. The applicant denied a history of psychological problems, which is not consistent with Dr. Ung’s clinical notes and records. In fact, her complaints to Dr. Dief included those she related to Dr. Ung a month before the accident (i.e., depression and stress). The applicant attributed her symptomology to factors other than the accident, such as stress at work and home, and indicated that the main reason for her visit was to obtain time off work. While the applicant raised the accident in a subsequent visit with Dr. Dief in November 2023, she continued to attribute her symptomology to work being too stressful, her husband not working, and her husband’s forgetfulness—none of which the applicant has shown as having an evidentiary relationship to the accident.

21I find Primmum does not assist here in the context raised by the applicant, which is to show that medical opinions supported by test results are credible. In Primmum, the Tribunal addresses the reliability of two psychological assessments—one obtained by the applicant and the other by the respondent—that offered differing conclusions despite performing similar tests that yielded similar results. The Tribunal preferred the applicant’s assessment because the conclusions were more consistent with the test results. The Tribunal ultimately removed the applicant from the Minor Injury Guideline and determined she was entitled to psychological services.

22In this case, the applicant explains she underwent the same tests applied in Primmum, and that her results indicated similar levels of severity. The applicant therefore reasons that the principles from Primmum should be applied to her claim; that is to say the disputed OCF-18s are reasonable and necessary because psychometric testing indicated severe results that support psychological impairment and diagnoses. I disagree. The applicant failed to direct me to the goals and treatments proposed in the disputed OCF-18s and therefore cannot establish that they are reasonable and necessary to address the impairments and symptoms assessed by Dr. Papazouglou.

23In conclusion, I find the applicant has not demonstrated that assessment and treatment of her psychological condition—as proposed in the disputed OCF-18s—is reasonable and necessary. She failed to establish, with evidence, the reasonableness and necessity of the goals and interventions proposed in the OCF-18s. The opinions of her assessors are not corroborated by contemporaneous evidence. And her claims of experiencing psychological symptomology only after the accident are not supported by her documented medical history. Taken together, I am persuaded this evidence does not support entitlement to the disputed OCF-18s.

Interest

24Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Interest is not payable in this case because there are no overdue benefit payments.

ORDER

25The applicant is not entitled to the disputed OCF-18s or interest. The application is dismissed.