Griffith Fyffe v. Belair Insurance Company Inc., 2025 CanLII 35962

Citation: Griffith Fyffe v. Belair Insurance Company Inc., 2025 ONLAT 23-008316/AABS

Licence Appeal Tribunal File Number: 23-008316/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:

Toni Jade Griffith Fyffe

Applicant

And

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Anita Sol-Edeigba

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Navjot Banipal, Counsel

HEARD: In Writing

OVERVIEW

1Toni Jade Griffith Fyffe, the applicant, was involved in an automobile accident on November 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:

i. Are the applicant’s injuries predominantly minor in nature as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500 Minor Injury Guideline limit? Note: The parties agree the MIG have not been exhausted.

ii. Is the applicant entitled to $1,950.00 for psychological assessment, proposed by E-Clinic United Healing in a treatment plan/OCF-18 (‘’plan’’) dated August 9, 2022?

iii. Is the applicant entitled to $2,929.23 for psychotherapy services, proposed by E-Clinic United Healing in a plan dated August 10, 2022?

iv. Is the applicant entitled to $2,576.40 for a psychological assessment, proposed by Q Medical, in an OCF-18 dated March 30, 2022?

v. Is the applicant entitled to $2,500.13 for a psychiatric assessment proposed by Q medical in a plan dated July 14, 2022?

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

RESULT

3I find that:

I. The applicant is removed from the MIG because her pre-existing condition is not within the definition of a ‘’minor injury’’ in s.3 of the Schedule.

II. The applicant is entitled to $1,950.00 for a psychological assessment.

III. The applicant is entitled to $2,929.23 for psychotherapy services.

IV. The applicant is not entitled to $2,576.40 for a psychological assessment.

V. The applicant is entitled to $1,855.39 for a psychiatric assessment.

VI. Interest is owing on overdue benefits in accordance with s.51 of the Schedule.

ANALYSIS

Minor Injury Guideline (‘’MIG’’)

4I find that the applicant has established on a balance of probabilities that her injuries are outside of the MIG because her pre-existing conditions are not within the definition of a ‘’minor injury’’ in the Schedule.

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.”

6An 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.

Pre-existing condition

7I find the applicant has demonstrated that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG.

8As indicated above, section 18(2) provides that insured persons with minor injuries who have a pre-existing medical condition may be removed from the MIG. Section 18(2) requires the applicant to provide compelling evidence demonstrating:

1. There was a pre-existing medical condition that was documented by a health practitioner before the accident: and

2. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.

9In terms of the applicant’s pre-accident history, the applicant’s family physician, Dr. Elham Attia, noted in his clinical notes and records dated February 24, 2021, that the applicant was complaining of migraine, dizziness, feeling tired and sleepy. Dr. Attia diagnosed the applicant with migraine, headache, and sleep disorder.

10In a follow-up consult note dated March 16, 2021, Dr. Attia noted that the migraine headache was being treated by his dosage of propranolol and topiramate 25 mg.

11The applicant cites the letters dated January 19, 2022, and November 08, 2021, completed by Dr. Ahmed Al Sabbagh of the Sleep Medicine Centre. It was stated that the applicant underwent a sleep study, which indicated that the applicant had mild obstructive sleep apnea. The applicant submits that she had a significant increase in her insomnia following the accident.

12The respondent submits that although the applicant has some pre-existing insomnia, this pre-existing and concurrent insomnia would not prevent the applicant from achieving maximal recovery within the MIG.

13Dr. Tony Toneatto also evaluated that the applicant is experiencing depression and anxiety as well as other trauma reaction. He indicates that despite her participation in physical treatment she has not improved substantially. The applicant argues that her insomnia was exacerbated as a result of the accident, and she should be removed from the MIG.

14The applicant further reports that immediately after the accident her reaction was shock, frustration, confusion, hopelessness, and dizziness. The applicant submits that since the accident she has been experiencing ongoing pain in her head, neck and upper back. As for her cognitive functioning, the applicant submitted that she is suffering from diminished concentration, low attention span, decreased memory and a reduced ability to focus. She reports that her sleep has been adversely affected also.

15Dr. Toneatto stated in his psychological report dated May 13, 2022, that denying the applicant access to this treatment will only exacerbate her current psychological and physical symptoms and lead to a more chronic clinical condition. Dr. Toneatto found that the applicant’s physical condition, anxiety and depression relative to her somatic concerns have deteriorated significantly.

16Psychologist Dr. Jason Bacchiochi, in his s.44 Insurer’s Examination Paper Assessment addendum report dated September 8, 2022, stated that: ‘’Yes. There was compelling evidence of pre-existing insomnia. It is not felt that this pre-existing and concurrent insomnia would prevent Ms. Griffith-Fyffe from achieving maximal recovery from her minor injury, from a psychological perspective.’’ In that report, Dr. Bacchiochi stated that “It is felt that she would benefit from a course of cognitive behavioural therapy for insomnia” (CBTI).

17I find that the medical evidence shows that the applicant had a pre-existing condition. I disagree with the respondent that the pre-existing insomnia would not prevent her from achieving maximal recovery from her minor injury because I assign significant weight to Dr. Elham Attia’s diagnoses of the applicant with headache, and Dr. Ahmed Al Sabbagh of the Sleep Medicine Centre with mild obstructive sleep apnea.

18I am persuaded by the applicant’s medical evidence which tells a consistent story before the accident into November 8, 2021, when the accident occurred. I assign significant weight to the psychological report of Dr. Toneatto, which I find to be compelling medical evidence stating that the pre-existing condition precludes the applicant’s recovery in the MIG. In his report, Dr. Toneatto recommended 12 sessions of cognitive behaviour therapy. Similarly, Dr. Bacchiochi, also advised that the applicant would benefit from cognitive therapy.

19I prefer Dr Toneatto’s report, and I do not agree with the respondent’s submission that this pre-existing insomnia would not prevent the applicant from achieving the maximal recovery from her minor injury. Dr. Toneatto conducted a comprehensive assessment of the applicant by completing an initial screening interview and a thorough clinical assessment. I also note that the applicant’s complaints to Dr Attia and Dr. Sabbagh are consistent with the complaints she made to Dr. Toneatto on May 13, 2022. During those appointment the applicant reported that she was depressed, had poor sleep and had poor concentration. The applicant’s consistent complaints of exacerbation in her pre-existing condition since the accident indicate that she no longer has minor injuries, but rather significant impairment that precludes recovery.

20I find that the applicant has established, on a balance of probabilities that she suffers from an impairment that is not predominantly minor in nature. Therefore, she is entitled to treatment beyond the $3,500 monetary limit.

21To receive payment for a treatment assessment plan under section 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are reasonable and necessary as a result of the accident. To do so the applicant must identify the goals of treatment, how the goals would be met to a reasonable degree and how the overall costs of achieving them are reasonable.

Is the applicant entitled to $1,950.00 for a psychological assessment, proposed by E-Clinic United Healing in a treatment plan dated August 9, 2022?

22I find that the applicant has demonstrated, on a balance of probabilities, that the treatment plan dated August 9, 2022, for a psychological assessment prepared by Svetlana Gabidulina in the amount of $1,950 is reasonable and necessary. I find Dr. Toneatto’s diagnosis of high-level anxiety disorder with disturbance in cognitive functioning to be persuasive evidence of the impairment.

23The goals of treatment are pain reduction, identifying any psychological, functional limitations and the level of impairments as it relates to her ability to travel in a vehicle are legitimate and achievable. Dr. Toneatto opined that the applicant would require periodic re-assessment to re-evaluate her psychological impairment. I also find that there is sufficient evidence, to support that the applicant had a pre-existing condition as in the case of Pundit vs Aviva Insurance Canada, 2020 ONLAT 19-005786/AABS. I find on a balance of probabilities that the applicant has established that the treatment is reasonable and necessary.

Is the applicant entitled to $2,929.23 for psychotherapy services, proposed by E- Clinic United Healing in a plan dated August 10, 2022?

24I find that this is a treatment plan for psychological service, not an assessment, and the goals are different. In view of that, the applicant is entitled to the treatment plan for psychological services.

25The goal is to return to activities of normal living, promote the applicant’s self-care, life management and ability to cope with day-to-day struggles. Psychosocial, psychodynamic (low self), and cognitive (distorted schemata) were identified as impairments.

26I find that Dr. Toneatto opined that the applicant participates in Motor Vehicle Travel desensitization and reintegration program to address her marked driving and vehicular anxiety so that she can engage in therapeutic activities away from home. The treatment plan in dispute here proposes 8 weeks program. I find that these goals can reasonably be achieved and will aid the applicant in her recovery. I find on a balance of probabilities that the applicant is entitled to the treatment plan for psychotherapy service.

Is the applicant entitled to $2,576.40 for a psychological assessment, proposed by Q Medical, in an OCF-18 dated March 30, 2022?

27The goal of the OCF-18, is to acquire, validate and interpret data needed to identify and evaluate the patient’s psychological, emotional, and social repercussions following the motor vehicle accident. The goal is also to identify if a psychological impairment exists and formulate recommendations to assist in the alleviation of symptoms and return to normal activities of daily living. The respondent indicated that the content of the OCF-18 forms was insufficient.

28As I have found that the applicant should be removed from the MIG based on psychological reasons, I do not see the need for another psychological assessment.

29Therefore, I find on a balance of probabilities that the applicant is not entitled to the treatment plan for a psychological assessment.

Is the applicant entitled to $2,500.13 for a psychiatric assessment proposed by Q medical in a plan dated July 14, 2022?

30I find that the applicant has met her onus to prove that the treatment plan is reasonable and necessary. The respondent argues that the practitioners were unaware of the applicant’s pre-existing condition. The applicant has consistently complained of insomnia, depression prior to the accident. The goal is to determine psychiatric complications that may compromise the applicant’s ability to return to full functioning. Another goal is to assess and suggest strategies to mitigate psychiatric symptoms that are affecting the applicant’s return to pre-accident functioning.

31I find mention of the applicant’s pre-existing insomnia in the reports of Dr. Bacchiochi and Dr. Ahmed Al Sabbagh. I further find that a treatment plan for a psychiatric assessment would be a maximum amount of $1,855.39 due to the type of assessment, non-complexity of the case and the provider’s fee. I find on a balance of probabilities that the applicant is entitled to the treatment plan for a psychiatric assessment.

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is entitled to three of the treatment plans, interest is payable by the respondent on those treatment plans.

ORDER

33For the reasons outlined above, I find that:

i. The applicant is removed from the MIG based on pre-existing condition.

ii. The applicant is entitled to $1,950.00 for psychological assessment for the OCF-18 dated August 9, 2022, plus interest in accordance with s.51 of the Schedule.

iii. The applicant is entitled to $2,929.23 for psychotherapy services for the OCF-18 dated March 30, 2022, plus interest in accordance with s.51 of the Schedule.

iv. The applicant is not entitled to $2,576.40 for psychological assessment for the OCF-18 dated July 14, 2022.

v. The applicant is entitled to $1,855.39 for a psychiatric assessment, plus interest in accordance with s. 51 of the Schedule.