Licence Appeal Tribunal File Number: 23-012246/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:
Sepideh Amiri
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Ken Singh, Cousnel
For the Respondent:
Meredith Harper, Counsel
HEARD: By way of written submissions
OVERVIEW
1Sepideh Amiri (“the Applicant”) was involved in an automobile accident on January 23, 2023, and sought benefits from Allstate insurance Company of Canada (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Applicant was denied benefits by the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
3At the case conference, the Respondent agreed to pay for the benefits in dispute. However, the issue of whether the Applicant is entitled to an award remains and is the subject of this decision.
ISSES
4The issue in dispute is:
i. Is the respondent liable to pay an award under section 10 of Regulation 664, because it unreasonably withheld or delayed payments to the Applicant?
RESULT
5I find that the Applicant is entitled to an award in the amount of $3,194.41, representing 50% of the amounts withheld by the Respondent.
BACKGROUND
6The Applicant was the driver of a vehicle which was struck on the front side by a left-turning vehicle at an urban intersection. She was taken by ambulance from the scene of the accident to the hospital where she was assessed. She was diagnosed at the hospital with soft tissue injuries, whiplash, and a possible mild traumatic brain injury. She was discharged home the same day.
7The Applicant met with her family physician, Dr. N. Ghodsi, about a week later, on January 31, 2023. During that visit, she complained about ongoing neck pain that radiates to her right shoulder, as well as right knee pain. Dr. Ghodsi observed that the applicant’s mood was good but slightly anxious. Dr. Ghodsi diagnosed the Applicant with a whiplash injury and musculoskeletal pain, and advised her to use heat and ice, non-steroidal anti-inflammatory medication, and was referred for physiotherapy and a shoulder ultrasound. The ultrasound of the Applicant’s shoulder was unremarkable.
8The Applicant met with Dr. Ghodsi again on April 13, 2023 and discussed her low mood since the accident. From this visit, Dr. Ghodsi prescribed psychotropic medication for the Applicant due to her ongoing depressive and anxiety symptoms following the accident. At another visit, on May 2, 2023, the Applicant complained that her depression and anxiety symptoms persisted, and Dr. Ghodsi referred her to Dr. Z. Fazeli, psychiatrist.
9Dr. Fazeli assessed the Applicant on June 16, 2023, and diagnosed her with an Adjustment Disorder with Anxiety and Depressed Mood, resulting from the accident. The Applicant started psychotherapy with Dr. Fazeli thereafter.
10The Applicant sought funding from the Respondent for a psychological assessment as result of the accident. In response, the Respondent sought to examine the Applicant for an insurer’s examination (“IE”). The IE occurred, and that assessor found that the Applicant sustained a psychological injury as a result of the accident. Other IEs, conducted around the same time, concluded that, from a physical perspective, the Applicant sustained a minor injury.
11In adjusting the Applicant’s claim, the Respondent split the determination on her injuries. It maintained that she sustained a minor injury, but for her psychological impairment. It took the position that the Applicant’s physical injuries, were subject to the MIG and the $3,500.00 funding limit, and that her psychological injuries were not subject to the MIG or the $3,500.00 funding limit.
12In response to the position, the Applicant filed an application to the Tribunal for dispute resolution on October 12, 2023. The Respondent continued to hold its position that the Applicant sustained a minor injury, but for her psychological injuries and subjected her physical treatment to the MIG and the $3,500.00 funding limit, but treatment for her psychological injuries were now subject to the $65,000.00 funding limit for a non-minor and non-catastrophic injury.
13The parties submitted their case conference summaries in March, 2024, and participated in a case conference on April 5, 2024. During the case conference, the Respondent agreed to pay for all the previously denied treatment plans, as well as medication expenses, together with a payment for interest.
14The Applicant submits that the Respondent’s position in splitting the determination on her injuries was arbitrary and warrants an award of 50% of the amounts withheld. The Respondent submits that it was unsettled law at the time of the decisions and that it approved funding for all the treatment plans in dispute, which to it is not excessive, imprudent, stubborn, unyielding, or immoderate.
ANALYSIS
15I find that, by splitting the determination on the Applicant’s Injuries, the Respondent acted in a manner which warrants an award of 50% of the amounts withheld.
16Pursuant to section 10 of Regulation 664, the Applicant may be entitled to an award of up to 50% of the amounts withheld if it is deemed that the Respondent unreasonably withheld or delayed payment of a benefit.
17The Applicant’s case is relatively analogous to the situation addressed in Co-Operators v. Bennett, 2024 ONSC 467 (“Bennett”). In Bennett, the insurer denied an insured person’s funding for an attendant care assessment on the basis that it concluded that she sustained a minor injury from a physical perspective but was not subject to the MIG for treatment of her psychological injuries. Bennett was released by the Divisional Court on February 7, 2024, which was after the Applicant submitted her application to the Tribunal, but before the parties submitted their case conference summaries and before the case conference occurred.
18I disagree with the Respondent that the issue of splitting the determination was unsettled law at the time. The Respondent’s position is based solely on the fact that the insurer in Bennett continued to dispute the Tribunal’s findings that it was not permitted to split the determination. The Respondent’s position fails to appreciate that Bennett was addressed by the Tribunal in a decision released on January 9, 2023, two weeks before the Applicant’s accident. The Tribunal upheld its findings on reconsideration, with a decision released May 11, 2023, more than three months before the Respondent received notice from its IE assessor that the Applicant sustained psychological injuries as a result of the accident.
19The Respondent has not directed me to any case where the Tribunal, or any higher authority, determined that insurers are permitted to split the determination on an insured person’s injuries. It cannot be said that it is unsettled law in a situation where there are no decisions – from any other authority – supporting the Respondent’s position. Thus, I conclude that the law was settled at the time, and that the principles in Bennett were clearly enumerated by the Tribunal twice before the Respondent made the decision to split the determination.
20The Respondent has not demonstrated that it made any attempts to mitigate the issue. It is incumbent upon the Respondent to follow the Tribunal’s interpretation of the Schedule. This is particularly true in cases where there is no opinion, from the Tribunal or otherwise, to the contrary. The Divisional Court released its decision in Bennett two months prior to the case conference, where the Respondent agreed to approve the benefits. Yet, there is no indication that the Respondent made attempts to contact the Applicant or her counsel to advise of its updated position. Instead, it waited until the case conference to approve the benefits.
21The Respondent prolonged the prejudice to the Applicant in waiting until the case conference to remedy the issue. Even if I were to accept the Respondent’s position that the issue of splitting the determination was unsettled law until the Divisional Court’s decision in Bennett, the Respondent has provided no rationale for why it waited until the case conference to approve the benefits. If the law was crystalized by the Divisional Court’s decision in Bennett, then the Respondent ought to have conveyed the change in position prior to the case conference. In fact, the Respondent communicated with the Applicant and Tribunal on two occasions following the release of Bennett, but before the case conference. It issued a response to the Application on February 12, 2024, and issued its case conference summary on March 26, 2024. It could have outlined the change in position in those documents, and possibly avoid a case conference altogether and save the parties’ and the Tribunal’s time, but for it’s inflexible and immoderate position.
22By maintaining a split determination on the Applicant’s injuries where there is no caselaw to support it, I find the Respondent acted in a manner which was excessive, imprudent, unyielding, and immoderate and therefore I find an award under section 10 of Regulation 664 is warranted.
Application of award
23I find that the Applicant is entitled to an award of $3,194.41, representing 50% of the amounts withheld by the Respondent on the basis that it believed it could split the determination of the Applicant’s injuries. I decline to order an award on the benefits which were denied for reasons other than the split determination.
24The benefits denied based on the split determination are as follows:
i. The plan in the amount of $2,460.00, for a neurologic assessment, dated July 17, 2023;
ii. The plan in the amount of $1,895.00 for a worksite assessment, dated June 13, 2023;
iii. The plan in the amount of $1,950.00 for a concussion assessment, dated July 12, 2023; and
iv. Medication expenses, totalling $83.82.
25I find the above plans were all denied on the basis that the Applicant sustained a minor injury from a physical perspective. This is outlined in letters, dated June 26, July 1, and August 1, 2023. The total for these plans is $6,388.82. Thus, the Applicant is entitled to an award of $3,194.41, representing 50% of the amounts withheld.
26I conclude that the Respondent denied the other benefits for reasons other than the split determination. The medication expenses submitted via OCF-6, dated April 21, 2023, were denied on the basis that the Applicant had not provided information to support that the expenses were prescribed as a result of the accident. This denial is reasonable in light of the limited medical information of the Applicant that the Respondent had at the time of the denial. The chronic pain treatment plan was denied on the basis that the Respondent concluded that it was not reasonable and necessary as a result of the accident – not because the Applicant exhausted the MIG funding limits. Thus, I find no award payable in relation to this plan.
CONCLUSION AND ORDER
27Pursuant to section 10 of Regulation 664, the Applicant is entitled to an award in the amount of $3,194.41, representing 50% of the amounts withheld by the Respondent by taking the position that it could split the determination on the Applicant’s injuries and the application of the MIG.
Released: July 16, 2025
Brian Norris
Adjudicator