Citation: Delle Donne v. Co-operators General Insurance Company, 2025 ONLAT 23-006685/AABS

Licence Appeal Tribunal File Number: 23-006685/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:

Michael Delle Donne

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Henry Harris

APPEARANCES:

For the Applicant: Piera A. Segreto, Counsel

For the Respondent: Emily Schatzker, Counsel

HEARD: By way of written submissions

OVERVIEW

1Michael Delle Donne (the "applicant") was involved in an automobile accident on February 11, 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 Co-operators General Insurance Company (the "respondent") 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 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 $2,200.00 for a psychological assessment, proposed by Dr. Bodenstein in a treatment plan/OCF-18 ("treatment plan") submitted September 23, 2022?

iii. Is the applicant entitled to $2,643.76 for psychological services, proposed by Dr. Bodenstein in a treatment plan submitted February 27, 2023, and denied March 9, 2023?

iv. Is the applicant entitled to $1,528.33 for a psychological assessment-driver/passenger anxiety, proposed by Dr. Bodenstein in a treatment plan submitted April 4, 2023, and denied April 19, 2023?

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

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

3For issue (iv) above, the case conference report and order released on January 9, 2024 (the "CCRO") refers to a treatment plan for psychological services submitted March 10, 2023. However, after reviewing the parties' submissions, I find that: (a) the treatment plan is for a psychological assessment-driver/passenger anxiety; and (b) treatment plan was submitted April 4, 2023, as set out above.

RESULT

4The applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG funding limit.

5The treatment plan submitted on April 4, 2023 is not payable pursuant to s. 38(11) of the Schedule.

6As the applicant is in the MIG, I have not considered if any of the disputed treatment plans are reasonable and necessary.

7The applicant is not entitled to interest or an award.

8The application is dismissed.

PROCEDURAL ISSUES

9The applicant raised a total of four procedural issues. The first two allege that the respondent failed to make proper productions as follows: (a) the adjusters' log notes, including a redaction on May 31, 2023, simply refers to lawyer-client privilege; and (b) the clinical notes and records ("CNRs") of Dr. Hines were produced more than three months late and that this should attract punitive measures and a special award.

10In his reply submissions, the applicant also argues that: (c) the respondent's submissions failed to meet the line spacing requirements of the CCRO, therefore the respondent should not be permitted to rely on the last 2-3 pages; (d) the respondent's submission relied on a transcript of the applicant's cross-examination without prior warning.

11The respondent submits that: (a) the May 31, 2023 note is properly redacted based on lawyer-client privilege; and (b) Dr. Hines' CNRs consisted of six handwritten pages that were provided late due to inadvertence of counsel and that the applicant had included such notes and records in his initial submissions. In response to the applicant's submission that no transcript of the cross-examination was produced, the respondent enclosed a copy of the transcript with its submissions and argues that the CCRO states that the transcript will be exchanged and filed with the materials for the hearing. As there was no right of sur-reply, the respondent did not make any submissions about the last two issues raised by the applicant.

12The respondent's submissions refer to and rely on the cross-examination transcript, which I find has not been provided within the time period set out in the CCRO; specifically, the requirement for exchange of documents which the parties intend to rely upon at the hearing by no later than the dates set out in paragraphs 5 and 6 of the CCRO. I do not accept the respondent's argument that the applicant could have requested a copy of the transcript. The respondent has an obligation to provide the documents it intends to rely on prior to the applicant making his submissions. To not do so is procedurally unfair to the applicant.

13For these reasons, I am excluding the respondent's cross-examination transcript as evidence and have not considered any references or submissions made in relation to the transcript by the respondent in coming to my decision.

14Having considered the parties' submissions on the other procedural issues, I find the applicant has not satisfied me that any of the respondent's conduct complained of resulted in any appreciable prejudice against the applicant's ability to present his case that warrants a remedy. Accordingly, I decline to order any.

ANALYSIS

Applicability of the Minor Injury Guideline (MIG) – Psychological Impairment

15I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological impairment as a result of the accident that warrants removal from the MIG.

16Section 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."

17An 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.

18In all cases, the burden of proof lies with the applicant.

19The applicant submits that he sustained psychological injuries from the accident which warrant his removal from the MIG. He argues that he has been diagnosed with anxiety and fear of driving, adjustment disorder with mixed anxiety and depressed mood, adjustment disorder and other sleep disorders, attention deficit hyperactivity disorder and general anxiety disorder.

20In support of this diagnosis, the applicant relies on the August 12, 2022 OCF-3 Disability Certificate, completed by Dr. Vito Sorrento, family doctor; the February 27, 2023 s.25 psychological assessment report of Dr. Joshua Goldstein, psychologist; the treatment plan submitted April 4, 2023 (dated March 10, 2023) for a psychological assessment-driver/passenger anxiety, prepared by Dr. Eyal Bodenstein, psychologist; a consultation page excerpt of the CNRs of Dr. Gerald Kimmons, psychiatrist. The applicant also submits as evidence an affidavit of the applicant sworn February 27, 2024.

21The respondent argues that the applicant has not sustained a psychological impairment as a result of the accident, and that the applicant's medical records do not show otherwise. The respondent submits that despite various medical appointments for consultations on personal matters, the applicant did not report any injuries for six months post-accident, when he requested a disability certificate from Dr. Sorrento. The respondent notes that applicant was diagnosed by Dr. Kimmons in September 2022 with ADHD and that there was no indication that this was related to the accident. The respondent submits that despite being under the care of a psychiatrist with various follow up appointments in 2022 and 2023 to manage ADHD medication, there was no indication of the applicant reporting driving anxiety or depression to his psychiatrist, Dr. Kimmons.

22The respondent disagreed with the diagnosis and conclusion of Dr. Goldstein's assessment report. The respondent relies on the May 29, 2023 s. 44 insurer's examination ("IE") report of Dr. Robert Hines, psychiatrist. In particular, it relies on Dr. Hines' finding that he did not see any substantial evidence of a psychiatric diagnosis or impairment of the applicant, or any evidence of an adjustment disorder, as was assigned in the psychological assessment report of Dr. Goldstein.

23I find that the applicant has not provided contemporaneous and corroborating evidence that he sustained an accident-related psychological impairment, for the following reasons.

24Firstly, I find that an OCF-3 is not evidence in and of itself of a diagnosis warranting removal from the MIG. Further, I find that there is no record of the applicant discussing with his family doctor any psychological concerns relating to the accident prior to when he requested that Dr. Sorrento complete the OCF-3 for coverage and education training on highway driving. As such, I place little weight on the impairments listed in the OCF-3 as evidence of a diagnosis. Similarly, as an OCF-18 is not evidence in and of itself of a diagnosis, I do not find Dr. Bodenstein's treatment plan submitted April 4, 2023 (dated March 10, 2023) for a psychological assessment-driver/passenger anxiety to be corroborating evidence of an impairment.

25Secondly, I do not find the evidence supports the applicant's claim that Dr. Kimmons diagnosed the applicant with generalized anxiety disorder ("GAD"). While the applicant's submissions include a one-page excerpt from Dr. Kimmons' CNRs, I find that this excerpt is presented out of context, as elsewhere in the CNRs there is a consultation reporting letter to Dr. Sorrento in which Dr. Kimmons' states that "GAD is not considered to be a warranted diagnosis in this instance". Dr. Kimmons also ruled out social anxiety disorder and noted that no other psychiatric diagnosis appears to be warranted at this time. Dr. Kimmons diagnosed the applicant with ADHD and prescribed medication to treat the condition. The CNRs indicate the applicant continued to follow up with Dr. Kimmons on management of ADHD medication in 2022 and 2023. There is no suggestion the ADHD condition is related to the accident. As Dr. Kimmons is the applicant's treating psychiatrist referred by the family doctor and seen or consulted with several times during the relevant time period in 2022 and 2023, I find Dr. Kimmons' CNRs to be contemporaneous, corroborating medical evidence which I assign significant weight to. Specifically, I give more weight to Dr. Kimmons' finding that the applicant does not have an accident-related psychiatric condition than the OCF-3 and OCF-18 noted above.

26Thirdly, in considering the findings and conclusions of the applicant's s.25 assessment report of Dr. Goldstein as compared to the respondent's IE report of Dr. Hines, I give greater weigh to the IE report because Dr. Hines' finding that the applicant does not have a psychiatric impairment is consistent with the finding of the applicant's treating psychiatrist, Dr. Kimmons, who found no psychiatric diagnosis warranted. As well, Dr. Hines' reviewed medical records as listed in the IE report whereas Dr. Goldstein's assessment report was based solely on the interview with the applicant and testing. In particular, the applicant's self-reporting to Dr. Goldstein that he believes he was diagnosed by a psychiatrist with general anxiety disorder is inconsistent with my findings from Dr. Kimmons' CNRs, and in my view weakens the reliability of the inputs to Dr. Goldstein's report.

27Finally, I find that the applicant's affidavit is not corroborated by the medical evidence. Specifically, while the applicant indicates that he has been diagnosed with GAD, for reasons set out above, I find the CNRs of Dr. Sorrento and Dr. Kimmons do not support the diagnoses indicated by the applicant in the affidavit.

28For these reasons, I find the applicant has not proven on a balance of probabilities that he suffers from a psychological impairment as a result of the accident that warrants removal from the MIG.

29As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed treatment plans are reasonable and necessary as a result of the accident. The applicant is entitled to treatment up to the MIG limits.

30The applicant has also argued that the April 4, 2023 treatment plan is payable under s. 38 of the Schedule. I will now consider these arguments.

April 4, 2023 psychological assessment-driver/passenger anxiety - Did the respondent provide improper denial?

31I find that the respondent's April 19, 2023 denial for the psychological assessment treatment plan dated April 4, 2023 to be compliant with s. 38(8) of the Schedule for the following reasons.

32Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives a plan which goods, services, assessments and examinations that the insurer does and does not agree to pay for. The insurer must also provide medical and other reasons why it considers any of the goods and services to not be reasonable and necessary.

33If an insurer fails to comply with its obligations under s. 38(8) in connection with a treatment and assessment plan, the following consequences set out in s. 38(11) of the Schedule are triggered:

i. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

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 s. 38(8).

34The parties did not dispute that the treatment plan was submitted by the applicant on April 4, 2023 and denied by the respondent on April 19, 2023.

35The applicant argues that the respondent failed to deliver its denial to the applicant within the 10 business days timeline set out in s. 38(8) and that this renders the denial invalid and the benefit payable.

36The respondent submits that it responded on the 9th business day, starting from April 5, 2023, being the day after the treatment plan was submitted. In support of its position, the respondent referenced that the definition of "business day" in the Schedule includes holidays designated in s. 88(2) of the Legislation Act, 2006, and noted that s. 88(2) includes both Good Friday and Easter Monday, which in 2023 fell on April 7 and April 10, respectively.

37I agree that the counting of business days commences the day after receipt of the treatment plan. Section 64(24) of the Schedule provides that the number of days between two events shall be read to exclude the day on which the first event happened and include the day on which the second event happens. When considering this, along with the definition of business day in the Schedule and s. 88(2) of the Legislation Act, 2006, I find that the respondent's April 19, 2023 denial was provided to the applicant within 10 business days after the treatment plan was received.

38I note that the definition of business day in the Schedule expressly includes Easter Monday and therefore overrides the designation as a holiday in s. 88(2) of the Legislation Act, 2006 for purposes of the Schedule. However, even if that day is counted as a business day, I find the denial was still provided within 10 business days after the plan was received, and is thus compliant.

39The applicant's submissions regarding the April 19, 2023 denial were limited to whether the respondent satisfied the timing requirement set out in s. 38(8), and no submissions were made as to the sufficiency of the reasons under s. 38(8).

40Accordingly, I find that the respondent's April 19, 2023 denial to have been made within the statutory deadline set out in s. 38(8) of the Schedule. Having made this finding, it is not necessary for me to consider arguments on whether the respondent complied with s. 38(8) on a subsequent denial dated May 29, 2023 for the same treatment plan.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.

Award

42The 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.

43As no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Reg. 664. Therefore, no award is payable.

ORDER

44For the reasons set out above, I find that:

i. The applicant shall remain in the MIG;

ii. The treatment plan submitted on April 4, 2023 is not payable pursuant to s. 38(11) of the Schedule;

iii. The applicant is not entitled to interest or an award; and

iv. The application is dismissed.