Bennett v. Belair, 2025 CanLII 18235

Citation: Bennett v. Belair, 2025 CanLII 18235

Licence Appeal Tribunal File Number: 23-005625/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:

Anthony Bennett Applicant

and

Belair Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Filipe Santos, Counsel

For the Respondent: Theomarcus Giannou, Counsel

HEARD: By way of written submissions

OVERVIEW

1Anthony Bennett, the applicant, was involved in an automobile accident on April 24, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing for the issues ii. and iii. listed below, because the applicant failed to attend an insurer's examination (IE) under s. 44 of the Schedule?

SUBSTANTIVE ISSUES

3The substantive 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 $2,210.00 for psychological treatment, proposed by 101 Assessments in a treatment plan/OCF-18 ("treatment plan") dated December 7, 2021?

iii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated June 1, 2021?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4On the preliminary issue, I find that the applicant is not barred from proceeding with his application respecting his entitlement to the two treatment plans.

5On the substantive issues, I find that:

i. The applicant's injuries are not predominantly minor, and the applicant does not remain subject to the MIG;

ii. The applicant is entitled to the treatment plan for psychological treatment, with interest;

iii. The applicant is entitled to the treatment plan for a psychological assessment, with interest; and

iv. The respondent is not liable to pay an award.

ANALYSIS

Preliminary Issue

6I find that the applicant is not barred from proceeding with his claims respecting entitlement to the treatment plans dated December 7, 2021, and June 1, 2021.

7Section 44(1) of the Schedule provides that an insurer can require an insured person to attend an IE by a regulated health professional or a vocational rehabilitation expert.

8Section 55(1)2. of the Schedule bars an insured person from bringing an application to the Tribunal with respect to a claim, if the insurer has provided the insured person with notice in compliance with the Schedule that it requires an IE under s. 44 and the insured person has not complied. The insurer must prove, on a balance of probabilities, that its notice meets the requirements of s. 44(5), which includes setting out the "medical and any other reasons" for the examination.

9Although I am not bound by Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) ("Peel"), provides useful guidance on the meaning of "medical reasons." It found that such reasons should:

(i) Include specific details about the insured's condition that formed the basis for the insurer's decision or identify information about the insured's condition that the insurer does not have but requires; and

(ii) Should allow an unsophisticated person to make an informed decision to accept or dispute the insurer's decision.

10The respondent submits that the applicant did not attend the following IEs:

i. A psychological IE scheduled for February 26, 2022, which was set to determine whether the applicant remained within the MIG and his entitlement to the December 7, 2021, treatment plan; and

ii. A psychological IE scheduled for September 20, 2021, and rescheduled to October 18, 2021, which was set to determine whether the applicant remained within the MIG and his entitlement to the June 1, 2021, treatment plan.

11The respondent submits the notices it sent to the applicant regarding both IEs complied with s. 44(5) of the Schedule and that the applicant should be barred from bringing his applications respecting these issues to the Tribunal due to his failure to attend the scheduled IEs.

12The applicant agrees that he did not attend the scheduled or re-scheduled IEs. The applicant submits that the notices he received from the respondent in respect of the treatment plans, which were dated September 3, 2021, September 30, 2021, and February 7, 2021, did not comply with the requirements of s. 44(5), specifically the requirement to set out the medical and any other reasons for the examination.

13I find that the notices dated September 3, 2021, September 30, 2021, and February 7, 2021, all contain the same reasons for the examination, as follows:

A review of the documentation on file suggests that the injuries suffered as a result of the motor vehicle accident appear to be minor in nature. Due to the lack of evidence supporting a psychological impairment, we feel it Is appropriate to have a medical professional determine whether the proposed treatment plan for psychological treatment is reasonable or necessary.

14I find that the reasons set out in the notices do not comply with s. 44(5) of the Schedule for the following reasons.

15I find that the statement that the "injuries suffered appear to be minor in nature" is vague and lacks the required details about the applicant's injuries or condition.

16I find that the statement respecting a "lack of evidence supporting a psychological impairment" is equally vague. While it refers to a psychological impairment, which corresponds to the two treatment plans in dispute, I find that this statement does not effectively communicate to the applicant what information it did not have and needed in order to determine if the treatment plans were reasonable and necessary. I find that the statement, as written, does not make it clear to the applicant what evidence the respondent relied on and how that evidence did not support a psychological impairment.

17As I have found that the notices did not comply with s. 44(5) of the Schedule, the applicant is not barred from proceeding with his claims pursuant to s. 55(1)2.

Substantive issues

The applicant is removed from the MIG

18I find that the applicant has proven on a balance of probabilities that he suffers from a psychological condition, which warrants his removal from the MIG.

19Section 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."

20An 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.

21The applicant submits that he should be removed from the MIG because he sustained a serious head injury in the accident, he sustained serious post-accident injuries that prevent him from reaching maximal recovery if subject to the MIG, and he sustained psychological conditions as a result of the accident.

The applicant has sustained a psychological condition that warrants his removal from the MIG

22I find that the applicant suffers from a psychological condition due to the accident that warrants his removal from the MIG.

23The applicant submits that he suffers from a psychological condition due to the accident. He relies on the psychological report of Dr. Konstantinos Papazoglou, psychologist, dated November 29, 2021, in which Dr. Papazoglou diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood, a driving/passenger phobia and somatic symptom disorder with predominant pain, as a result of the accident.

24The respondent submits that the applicant's psychological symptoms fall into the category of clinically associated sequelae and are not severe enough to warrant removing the applicant from the MIG. In support of its position, the respondent relies on the decision of Y.X.Y. v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) ("Y.X.Y"). The respondent submits that, like in Y.X.Y., the applicant reported symptoms to Dr. Papazoglou that did not appear elsewhere in the medical evidence. The respondent also submits that the applicant has not been prescribed any medication for a psychological condition, has not undergone psychological treatment since the accident and there are no references to reported psychological symptoms in the records of his family physician.

25I give significant weight to the opinion and diagnoses of Dr. Papazoglou because they are based on a clinical interview with the applicant, the results of six psychological tests administered to the applicant and Dr. Papazoglou's behavioral observations of the applicant. I note that a seventh psychological test was administered, but the applicant obtained an invalid result. I accept Dr. Papazoglou's opinion that the applicant gave no indication of malingering, despite the invalid test result, because this opinion is consistent with the results of the other tests and the results of Dr. Papazoglou's clinical interview. I find that on the psychological tests, the applicant scored in the severe range for depression and anxiety and his score on the Pain Catastrophizing Scale suggests that he may be at high risk for development of chronicity.

26I am not bound by other Tribunal decisions. However, I find Y.X.Y. distinguishable, as the decision dealt with a psychological diagnosis set out in a treatment plan, which was based on a pre-screen interview performed by the psychologist's assistant, rather than a report from a psychologist based on a complete assessment, as in this case.

27I do not accept the respondent's submission that the lack of reports of psychological symptoms to the applicant's family doctor disproves the applicant's claim. I note that the clinical notes and records (CNRs) of Golfdale Medical Centre, the clinic of the applicant's family doctor, contain a Back and Neck Specialty Program Follow-up Assessment Report dated October 21, 2022, in which the applicant's score on a psychological test was found to suggest severe anxiety. I find that this supports the applicant's claim that he experienced psychological symptoms, despite not reporting them to his family doctor.

28Similarly, I do not accept the respondent's submission that the lack of prescriptions for the applicant's psychological conditions and the lack of psychological treatment disprove the applicant's claim. I find that the applicant has sought funding for psychological treatment through the submission of a treatment plan, which the respondent denied. I find that the lack of treatment and the lack of prescription do not contradict Dr. Papazoglou's report.

29Therefore, I find that the applicant suffers from a psychological condition, as a result of the accident, which warrants his removal from the MIG. As a result of this finding, I do not need to consider the parties' submissions with respect to the applicant's severe head injury or post-accident injuries.

The applicant is entitled to the treatment plan for psychological treatment dated December 7, 2021

30I find that the applicant is entitled to the treatment plan for psychological treatment.

31The treatment plan dated December 7, 2021, was completed by Punitha Manoharan, social worker, and approved by Dr. Papazoglou. It sought funding of $2,210.00 for 12 one-hour counselling sessions.

32The applicant did not make any submissions as to the reasonableness and necessity of the treatment plans. Instead, the applicant limited his submissions to the non-compliance of the respondent's denials with s. 38(8) of the Schedule.

33Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within 10 days of receiving it by identifying the goods, services, assessments, and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.

34If an insurer fails to comply with s. 38(8), the consequences are:

i. The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and

ii. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

35For guidance on the meaning of "medical reasons", I refer once again to Peel, set out above.

36The applicant submits that the respondent's letter of February 28, 2022, denying the treatment plan, does not contain any medical or other reasons for the denial. Rather, the applicant submits, the letter refers the applicant to a denial letter dated September 3, 2021, for the medical reasons for the denial.

37The respondent submits that its letter dated February 7, 2022, was sent to the applicant and that this letter contains the medical and other reasons for the denial in compliance with s. 38(8) of the Schedule. The respondent further relies on Peel and submits that, pursuant to that decision, a standard of perfection cannot be applied to its denial letter and if the denial letter offers a principled rationale based fairly on the insured's file, the obligations of s. 38(8) are met.

38I agree with the respondent's submission that the letter of February 7, 2022, is the letter denying the treatment plan. I find that the letter dated February 28, 2022, is an attempt to reschedule an IE that the applicant did not attend.

39The February 7, 2022, letter contains the following reasons for the denial of the December 7, 2021, treatment plan:

A review of the documentation on file suggests that the injuries suffered as a result of the motor vehicle accident appear to be minor in nature. Due to the lack of evidence supporting a psychological impairment, we feel it Is appropriate to have a medical professional determine whether the proposed treatment plan for psychological treatment is reasonable or necessary.

40I find that the reasons do not comply with s. 38(8) of the Schedule because I find that the reasons are vague and do not effectively communicate to the applicant what information it did not have and needed in order to determine if the treatment plans were reasonable and necessary. I further find that the reasons, as written, do not make it clear to the applicant what evidence the respondent relied on and how that evidence did not support a psychological impairment.

41I have not been directed to a letter that corrects the deficiencies found in the letter of February 7, 2022. Therefore, I find that the applicant is entitled to the treatment plan for psychological treatment, dated December 7, 2021.

The applicant is entitled to the treatment plan for a psychological assessment dated June 1, 2021

42I find that the applicant is entitled to the treatment plan for a psychological assessment dated June 1, 2021.

43The treatment plan for a psychological assessment dated June 1, 2021, was completed by Dr. Peter Waxer, psychologist, and sought funding of $2,460.00 for a psychological assessment and report.

44The applicant submits that he received the denial letter dated June 28, 2021, from the respondent respecting the treatment plan. The applicant further submits that the denial letter does not comply with s. 38(8) of the Schedule because it does not contain medical and any other reasons for the denial. The applicant submits that he is therefore entitled to the treatment plan pursuant to s. 38(11).

45The respondent did not make any submissions regarding its s.38(8) compliance and instead submits that the applicant has not proven that the treatment plan is reasonable and necessary.

46I find that the denial letter of June 28, 2021, contains the same wording as the denial letter of February 7, 2021, as set out above at paragraph 39. Therefore, for the same reasons as set out above at paragraph 40, I find that the reasons for the denial do not comply with s. 38(8) of the Schedule.

47I have not been directed to a subsequent denial letter that corrects the deficiencies in the June 28, 2021, letter. Therefore, I find that the applicant is entitled to the treatment plan for a psychological assessment dated June 1, 2021.

Interest

48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the two treatment plans.

Award

49I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.

50The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate." The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets these criteria.

51In support of his claim for an award, the applicant submits that the respondent unreasonably withheld funding for the treatment plans.

52The respondent submits that its conduct has not been unreasonable and that the applicant has not directed me to evidence of unreasonable behaviour and so has not met his burden of proof.

53I find that the non-compliance of the respondent's denial letters and notices of examination with sections 38(8) and 44(5) do not, without more, justify an award. I find that the applicant has not directed me to any specific evidence that demonstrates that the respondent's conduct amounts to excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behaviour. Therefore, I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.

ORDER

54On the preliminary issue, I find that the applicant is not barred from proceeding with his application respecting his entitlement to the two treatment plans.

55On the substantive issues, I find:

i. The applicant's injuries are not predominantly minor, and the applicant does not remain subject to the MIG;

ii. The applicant is entitled to the treatment plan for psychological treatment, with interest.

iii. The applicant is entitled to the treatment plan for a psychological assessment, with interest; and

iv. The respondent is not liable to pay an award.