Germaw v. Belair Insurance Company Inc., 2025 CanLII 1818

Citation: Germaw v. Belair Insurance Company Inc., 2025 ONLAT 23-000498/AABS

Licence Appeal Tribunal File Number: 23-000498/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:

Antenah Germaw

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Ardi Deti, Paralegal

For the Respondent: Hiba Fasih, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Antenah Germaw, the applicant, was involved in an automobile accident on July 8, 2021, 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, Belair Insurance Company Inc., 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 limit?
2. Is the applicant entitled to $3,388.55 for Chiropractic Services, proposed by Innova Physiotherapy and Sports Rehabilitation in a treatment plan/OCF-18 (“plan”) dated November 22, 2021?
3. Is the applicant entitled to $2,144.93 for a Psychological Assessment, proposed by Pilowsky Psychology Professional Corp. in a treatment plan dated January 20, 2022?
4. Is the applicant entitled to $2,460.00 for an Orthopedic Assessment, proposed by All Health Medical Centre in a treatment plan dated April 6, 2022?
5. Is the applicant entitled to $2,260.00 for a Chronic Pain Assessment, proposed by All Health Medical Centre in a treatment plan dated June 16, 2022?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

3On consent, the parties have withdrawn issues 2,4,5 and 6.

RESULT

4Based on the totality of the evidence before me, I find:

1. The applicant sustained a psychological injury that warrants removal for the MIG.
2. The applicant is entitled to a psychological assessment of $ 2,144.93.
3. Interest is payable to the applicate under Section 51 of the Schedule.

Analysis

Applicability of the Minor Injury Guideline:

5Section 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 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” An 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 injury or 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.

6The applicant bears the onus of establishing on the balance of probabilities his entitlement to coverage beyond the $3,500.00 cap for minor injuries. An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has determined that a psychological condition may warrant removal from the MIG.

The applicant has a psychological injury that would remove him from the MIG. The applicant is entitled to a psychological assessment of $ 2,144.93.

ANALYSIS

7The applicant submits that he has sustained a non-minor injury based on his psychological injuries including posttraumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood. The applicant submits he has an increased cautiousness related to driving and other social activity that prevents him from a normal active life post-accident. The applicant relies on Dr. Pilowsky’s report that supports the above position.

8The respondent submits that the applicant has suffered mild levels of distress in the form of transient dysphoric mood and, loss of interest in some activities. The respondent submits that the applicant’s psychological injury is not sufficient to warrant a DSM-5 diagnosis. Also, the mild level of anxiety is a typical reaction to the accident and that, with time, the applicant’s mild driving-related anxiety would likely resolve on its own. The Respondent also submits that the applicant has failed to meet his onus and has not proven on a balance of probabilities that the treatment plan is reasonable and necessary because of the accident. The respondent relies on Dr. Bacchiochi’s report that supports the respondent’s position.

9An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the SABS. To be removed from the MIG, the applicant must show that there is an actual psychological impairment and not just post-accident sequelae. See: Russel v. Economical Mutual Insurance Company, 2022 ONLAT 20-009752/AABS

10The applicant submitted a psychological report dated May 31, 2022, completed by Dr. Judith Pilowsky psychologist, where she states that the applicant suffers from post - traumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood. Dr. Pilowsky conducted the examination over Zoom. The applicant relies on Dr. Pilowsky’s psychological assessment report to support his assertion that he has a psychological injury warranting treatment.

11The respondent submits the report of Dr. Jason Bacchiochi who saw the applicant on March 21, 2022, and issued two reports, dated April 4, 2022 and July 11, 2022. Dr. Bacchiochi also issued an Addendum Report on July 4, 2022 upon receipt of Dr. Pilowsky’s report. Dr. Bacchiochi notes many inconsistencies with Dr. Pilowsky’s report. It is important to note that there is no indication about when the self-report measures were administered. The assessment appears to span two months’ time and it is possible that clinical status has changed over that period. It is also suggested that the Personality Assessment Inventory was administered but only the validity scales from the measure were interpreted. Dr. Bacchiochi states that though the applicant reported mild levels of distress in the form of transient dysphoric mood, loss of interest in some activities, and increased cautiousness related to driving. Dr. Bacchiochi also suggested it was not sufficient to warrant a DSM-5 diagnosis. His conclusion noted that the answers provided during the assessment denotes a typical reaction to the accident and that with time the applicant’s mild driving-related anxiety would likely resolve on its own. The applicant described this increased cautiousness and vigilance related to driving at this time and it was not clear that this was of a severity to be causing clinically significant distress or impairment that would warrant a DSM-5 diagnosis.

12The applicant states that Dr. Pilowsky’s opinion by the applicant’s interview and the documentation reviewed, as well as the psycho-diagnostic testing results, that show the applicant is affected by a symptom of post – traumatic stress disorder and an adjustment disorder with mixed anxiety and a depressed mood. This fell within the moderate and severe ranges of depression and anxiety testing, which was reinforced by the applicant’s reporting of symptoms. Furthermore, the results on the PCL indicate he meets the criteria for a provisional PTSD diagnosis.

13The applicant relies on the reconsideration case of vice chair Matther in, JS. v Aviva General Insurance Company, LAT 17-003600/AABSthat states, “There is no evidence as to the criteria that must be met for a DSM diagnosis. There is no absolute requirement in law that a person have a DSM diagnosis to be removed from the Guidelines for psychological reasons.”

14I agree with the applicant because of the applicant’s psychological injury would prevent him from a normal life activity including driving and social activities. His symptoms clearly state that he had some difficultly with some aspects of his life including his past trauma from his childhood.

15The respondent submits one concern he has is the timeframe between the two assignments dates. Dr. Bacchiochi states that it is conceivable that with two months of separation the clinical presentation can change. The applicant states that Dr. Bacchiochi’s original report and the subsequent addendum were separated by five months. The applicant questioned as to why Dr. Bacchiochi’s view remained unchanged without conducting further psychological evaluation to discern any potential variation in the applicant’s condition.

16I agree with the applicant as to why Dr. Bacchiochi’s opinion on the applicant’s condition didn’t change. There is no evidence as to why his opinion didn’t change with a delay in the assessments. Dr. Bacchiochi’s report suggested that there were inconsistencies in Dr. Pilowsky’s assessments, however, I prefer Dr. Pilowsky’s assessments over Dr. Bacchiochi’s report as they have a shorter time period of 2 months that the applicant was examined compared to a 5 month time from the original report to his addendum.

17The applicant attended at his physician’s office Dr. Aderiibigbe on May 13, 2022, May 25, 2022, July 20, 2022, April 5, 2023, May 1, 2023, July 13, 2023 and on February 27, 2024. In Dr. Aderiibigbe’s CNR’s he noted that the applicant has developed psychological injuries and impairments. Dr Aderibigbe made a plan for depression and anxiety counselling due to flashbacks and his anxiety. He also referred the applicant to Hamilton Connect; where I note that he didn’t attend the appointments.

18The applicant also saw Dr.Ogilvie Harris, Orthopaedic surgeon, while attending to a unrelated matter in this dispute. He wrote in his notes that the applicant “gets depressed and upset easily”.

19I find that in all CNR’s of Dr. Pilowsky and Dr. Aderibigbe are consistent in mentioning the psychological injury of the applicant and have documented related symptoms of anxiety.

20For all the reasons above, the applicant is removed from the MIG, and on a balance of probabilities that $2,144.93 for a Psychological Assessment, proposed by Pilowsky Psychology Professional Corp. in a treatment plan dated January 20, 2022 is reasonable and necessary.

Interest is payable.

21The applicant is entitled to interest in accordance with s. 51 of the Schedule.

ORDER

22As a result of the above and on a balance of probabilities, I find that:

1. The applicant sustained predominantly non minor injuries as defined in the Schedule and is therefore subject to treatment above the monetary limits of the MIG.
2. The applicant is entitled to $2,144.93 for a Psychological Assessment, proposed by Pilowsky Psychology Professional Corp. in a treatment plan dated January 20, 2022.
3. The applicant is entitled to interest in accordance with s. 51 of the Schedule.