Citation: Petrushyna v. Co-operators General Insurance Company, 2025 ONLAT 23-015125/AABS
Licence Appeal Tribunal File Number: 23-015125/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:
Tetyana Petrushyna
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Elena Pelz, Counsel
For the Respondent: Peter Durant, Counsel
HEARD: By way of written submissions
OVERVIEW
1Tetyana Petrushyna, the applicant, was involved in an automobile accident on November 23, 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, Co-operators General Insurance Company, 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 $2,486.00 for Neurological Assessment, proposed by Downsview Healthcare in an OCF-18/treatment plan (“treatment plan”) dated December 22, 2022?
iii. Is the applicant entitled to $2,486.00 for Psychological Assessment, proposed by Downsview Healthcare in a treatment plan dated March 14, 2022?
iv. Is the applicant entitled to $2,486.00 for Neurological Assessment via MRI, proposed by Downsview Healthcare in a treatment plan dated November 22, 2022?
v. Is the applicant entitled to $2,486.00 for Chronic Pain Assessment, proposed by Downsview Healthcare in a treatment plan dated August 23, 2022?
vi. Is the applicant entitled to $2,565.20 for physiotherapy services, proposed by Downsview Healthcare in a treatment plan dated December 7, 2021?
vii. Is the applicant entitled to $2,731.25 for physiotherapy services, proposed by Idealspine Rehab in a treatment plan dated March 28, 2022?
viii. Is the applicant entitled to $2,731.25 for physiotherapy services, proposed by Idealspine Rehab in a treatment plan dated October 30, 2022?
ix. Is the applicant entitled to $3,697.14 for psychological services, proposed by Downsview Healthcare in a treatment plan dated June 8, 2022?
x. Is the applicant entitled to $13,297.89 for a chronic pain program, proposed by Downsview Healthcare in a treatment plan dated November 9, 2022?
xi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant’s injuries are not predominantly minor, and therefore, she is entitled to treatment beyond the monetary limit of the MIG.
The applicant is entitled to the disputed treatment plans, with interest pursuant to s. 51 of the Schedule.
The applicant is not entitled to an award.
PROCEDURAL ISSUES
Acknowledgement of Expert’s Duties
4In the Notices of Motion dated December 30, 2024, and January 1, 2025, the respondent requests that the Tribunal accept the Acknowledgment of Expert’s Duty (AoED) forms for Drs. Rodrigo Castro, Gerald Dancyger and Raymond Zabieliauskas, which were inadvertently omitted from the original submissions.
5The respondent submits that the License Appeal Tribunal Rules (the “LAT Rules”) support a flexible and fair process, allowing for the inclusion of these forms to ensure the matter is decided on its merits.
6Similarly, in a Notice of Motion dated January 9, 2025, the applicant seeks to include the AoED forms for Drs. Dimitri Louvish and Jacqueline Brunshaw, arguing that their exclusion would be procedurally unfair given the relevance of their reports.
7Both parties assert that the omission was unintentional and that the expert reports were submitted in good faith. Neither party has requested that the reports be excluded.
8However, under Rule 10.1 of the LAT Rules, AoED forms are only required where an expert is expected to testify at an oral hearing. As this matter proceeds by way of a written hearing, the requirement does not apply.
9Accordingly, I find that the absence of AoED forms is not an issue in this context, and no further action is required.
Late production of clinical notes and records
10A case conference was held by teleconference on April 23, 2024. The Case Conference Report and Order (“CCRO”) dated April 26, 2024, directed that all outstanding documents be exchanged no later than 60 calendar days from the date of the case conference.
11The respondent seeks to exclude updated clinical notes and records (“CNR”s) from Dr. Krystyna Prutis, a physician for the applicant, submitted by the applicant on November 29, 2024, on the basis that they were disclosed after the June 25, 2024, production deadline.
12The applicant submits that the CNRs reflect a medical appointment on November 5, 2024, and were disclosed promptly upon receipt on November 28, 2024. The delay resulted from scheduling constraints beyond the applicant’s control and does not reflect negligence or bad faith.
13According to Rule 9.3 of the LAT Rules, parties cannot rely on undisclosed documents or witnesses without the Tribunal’s permission. The Tribunal considers reasons for non-compliance, prejudice, knowledge, opposition, and relevance when deciding admissibility.
14I accept the applicant’s submission and find that the delay was due to the timing of the reassessment with Dr. Prutis. The applicant’s counsel provided the records to the respondent the day after receiving them, demonstrating diligence.
15Notably, the respondent has not identified any specific prejudice arising from the timing of the disclosure. The records relate to a recent appointment and are clearly relevant to the matters in dispute. Moreover, the respondent received the materials with ample time before their submissions were due, allowing sufficient opportunity to review and respond. In these circumstances, the claim of prejudice is unpersuasive, and exclusion would be disproportionate.
16Accordingly, I deny the respondent’s request to exclude the CNRs from Dr. Prutis.
ANALYSIS
Are the applicant’s injuries predominantly minor?
17I find that the applicant’s injuries do not meet the definition of a minor injury, so the MIG limit does not apply.
18Section 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.”
19An 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.
20The applicant submits that she should be out of the MIG because she sustained chronic pain with functional impairment and because of her psychological impairments.
Chronic Pain with functional impairment
21I find that the applicant suffers from chronic pain and has demonstrated functional impairments that justify removal from the MIG.
22The applicant cites multiple medical assessments from specialists, including Dr. Krystyna Prutis, a physical medicine expert; Dr. Martin Heller, an orthopedic surgeon; Dr. Dimitri Louvish, a physician; Dr. Vera Kamenskaia, a treating doctor; Dr. Fariz Remtulla, a family physician; and Dr. Jacqueline Brunshaw, a psychologist. These reports detail persistent pain, chronic headaches, psychological symptoms, and somatic dysfunction inconsistent with minor soft tissue injuries.
23The respondent asserts that the applicant only suffered soft tissue injuries and relies on Insurer Examinations (“IEs”) conducted by Dr. Gerald Dancyger, a psychologist, and Dr. Raymond Zabieliauskas, a physiatrist, both of whom found no diagnosable psychological impairments or objective musculoskeletal issues. The respondent also depends on the medical notes from Dr. Rodrigo Castro, a physician specialized in pain management.
24I find that the medical evidence supports a diagnosis of chronic pain. For instance, on December 7, 2021, the applicant’s family doctor, Dr. Fariz Remtulla, documented ongoing headaches, neck, back, and left hip pain, for which medication was prescribed (Flexeril and Naproxen).
25Dr. Kamenskaia recorded consistent complaints of right hip, neck, and scapular pain across multiple visits in 2022 (June 3, 2022, August 10, 2022, and December 7, 2022). On February 28, 2023, she noted worsening back and hip pain, difficulty walking, and pain radiating into the groin. The applicant was referred to Dr. Krystyna Prutis for further assessment.
26On May 4, 2023, Dr. Prutis diagnosed moderate to severe myofascial cervical and lumbar strains and bilateral hip sprains. She also noted, as a result of the accident, a possible cervical/lumbar disc herniation and a hip labral tear. An MRI later confirmed degenerative subchondral cystic changes in the left hip (March 24, 2024).
27Dr. Martin Heller, an orthopedic surgeon, reported on May 2, 2024, that the applicant continues to experience right groin pain that limits her daily activities.
28Dr. Louvish, in a section 25 assessment dated October 29, 2022, diagnosed the applicant with chronic pain syndrome. He applied the criteria from the American Medical Association, 6th edition (“AMA Guide”) for chronic pain, and found that the applicant met at least four of the six criteria required for this diagnosis.
29In contrast, the respondent relies on the section 44 physiatry assessment conducted by Dr. Raymond Zabieliauskas dated October 12, 2022. The report states that, from a physical medicine and musculoskeletal perspective, there are no residual impairments related to the accident. The physician added that, although he does not dismiss the fact that the applicant continues to experience some residual pain, Dr. Zabieliauskas opines that the applicant can be reassured that her current symptoms do not show any clear organic pathology indicating ongoing physical impairment or disability linked to the accident.
30The respondent also submits the general practitioner assessment prepared by Dr. Rodrigo Castro, a physician focused on pain management, who concluded that the applicant has mild limitations in the range of motion of her cervical spine and right shoulder.
31I prefer Dr. Louvish’s report because it provides a detailed review of the applicant’s complaints. Dr. Louvish also applied the Chronic Pain Criteria from the AMA Guide and determined that the applicant meets the criteria for chronic pain syndrome. Dr. Louvish opined that, although only three of the six criteria are needed to diagnose chronic pain syndrome, the applicant meets at least four of the criteria.
32I assign less weight to the reports by Dr. Zabieliauskas and Dr. Castro because, while both noted the applicant’s ongoing pain and Dr. Castro further observed functional limitations, their assessments were conducted well after the date of the accident. Despite the passage of time, the persistence of symptoms supports the applicant’s claim of chronic pain. However, the reports lack a comprehensive examination and do not adequately address the broader evidentiary context. As such, I am not persuaded by their conclusions.
33I find that the applicant’s clinical history, as a result of the accident, includes evolving and persistent symptoms over a prolonged period, and assessments by treating physicians and specialists support a diagnosis of chronic pain with functional impairments. The applicant has demonstrated functional impairments (see: CNRs from Dr. Kamenskiai from 2022 to 2023, Dr. Heller’s report dated May 2, 2024), including difficulty walking, reduced range of motion, and limitations in daily activities, which are directly linked to the injuries sustained in the accident.
34I also note that the applicant has raised psychological symptoms as a separate ground for MIG removal. However, given my findings on chronic pain and functional impairment, it is not necessary to address the psychological ground at this time.
35On a balance of probabilities, I find that the applicant’s impairments are not predominantly minor injuries as defined under the Schedule.
36Accordingly, the applicant is removed from the MIG.
Is the applicant entitled to the disputed treatment and assessment plans?
37To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
38I find that the treatment plans dated December 7, 2021 ($2,565.20), March 28, 2022 ($2,731.25), and October 30, 2022 ($2,731.25) are reasonable and necessary. These plans aim to reduce pain, improve strength and range of motion, decrease the frequency and severity of headaches and dizziness, prevent chronic issues, and support a return to normal activities.
39The treatment plans were submitted and signed by Saranjit Khaira and Jong Han Oh, both chiropractors. The proposed interventions include exercises targeting multiple body sites, muscle stimulation sessions, and acupuncture treatments. These services are designed to address the applicant’s physical impairments and functional limitations resulting from the accident.
40The applicant argues that the proposed plans are reasonable and necessary because she has been diagnosed with chronic pain syndrome and has consistently reported that physiotherapy has helped relieve her symptoms. Her treating specialists have recommended ongoing conservative therapy, including physiotherapy.
41The respondent denied the treatment plans, citing Dr. Zabieliauskas, asserting that the applicant’s injuries are within the MIG. It contends that the applicant has not demonstrated that her injuries exceed the MIG, noting CNRs describe only soft tissue injuries without signs of more severe impairments.
42The treatment plans from 2021 and 2022 are supported by contemporaneous medical documentation. Dr. Remtulla’s clinical notes dated December 7, 2021, diagnosed the applicant with headaches, neck pain likely due to cervicalgia, back pain, and left hip pain. Similarly, Dr. Kamenskaia’s notes from December 21, 2021, recorded complaints of back, left hip, and shoulder pain, and raised the possibility of PTSD. She recommended continued rehabilitation at that time. These records provide direct support for the treatment plans submitted during that period. While later assessments, such as those by Dr. Prutis (May 4, 2023; March 14, 2024) and Dr. Louvish, recommend ongoing physiotherapy and structured exercise programs, they primarily reflect the applicant’s condition at a later stage.
43I find that the applicant has met her onus on a balance of probabilities. The treatment plans are supported by contemporaneous records from 2021 and 2022, including clinical notes from Dr. Remtulla and Dr. Kamenskaia, which directly align with the impairments targeted by the proposed interventions. Later assessments from 2023 and 2024, such as those by Dr. Prutis and Dr. Louvish, provide helpful context by confirming the persistence of symptoms and the continued need for care. Accordingly, the evidence as a whole supports a clear link between the accident-related impairments and the treatment plans.
44Consequently, I find, on a balance of probabilities, that the treatment plans are reasonable and necessary to address the applicant’s post-accident impairments.
45I find that the treatment plan dated June 5, 2022, for the amount of $3,697.14 is reasonable and necessary.
46The plan was submitted and signed by Jacqueline Brunshaw, a registered psychologist. It proposes 12 sessions of mental health and addiction counselling, support activity documentation, interpretation services, and support activity for the claim form. The primary goals are to help the applicant manage her emotional responses to her current difficulties and to assist her in returning to normal daily functioning.
47The applicant argues that the plan is reasonable and necessary because, following a psychological assessment by Dr. Brunshaw, she was diagnosed with adjustment disorder with anxiety, which was directly linked to the accident. Her treating psychologist confirmed that the therapy was essential to address the psychological effects of the accident and to support her recovery.
48The respondent argues that the plan is unwarranted because it depends on Dr. Dancyger's assessment, which found no evidence of accident-related psychological issues. Dr. Dancyger concluded that the applicant did not display typical symptoms of anxiety, depression, phobia, or PTSD, and her psychometric tests were invalid due to exaggeration and lack of effort.
49Dr. Louvish (October 29, 2022) diagnosed the applicant with chronic pain syndrome accompanied by psychological distress, posttraumatic sleep disturbance, and cognitive difficulties. Although he is not a psychologist, he recommended psychological consultation and treatment to address symptoms of depression, anxiety, and distress related to driving or being a passenger. Dr. Prigozhikh (January 18, 2023) emphasized the importance of reducing intense stressors to help manage headaches, which indirectly supports the need for psychological intervention. Dr. Dancyger (October 12, 2022) noted that while the applicant’s test results could not be interpreted, likely due to inconsistencies or limitations in the testing process, this did not undermine the psychological concerns she reported. Although his opinion relies mainly on self-reported symptoms, I do not find this significantly diminishes its value, especially when considered alongside the broader clinical picture and corroborating recommendations from other practitioners.
50The respondent challenges the treatment plan on the basis that Dr. Brunshaw did not personally assess the applicant or review her medical records. However, this criticism is not supported by any independent evidence undermining the necessity of the proposed psychological treatment. The respondent relies solely on Dr. Dancyger’s report, which concluded that the applicant did not present with observable psychological symptoms and suggested possible exaggeration based on test results. Nonetheless, Dr. Dancyger also acknowledged the applicant’s self-reported pain and dizziness and did not entirely rule out psychological concerns.
51In contrast, the applicant has submitted multiple assessments that support the need for psychological intervention. Dr. Louvish diagnosed chronic pain syndrome with psychological distress and recommended treatment, despite not being a psychologist. Dr. Prigozhikh emphasized the importance of reducing stressors to manage headaches, indirectly supporting the need for mental health support. Even Dr. Dancyger’s report, while critical, does not negate the presence of psychological symptoms. Taken together, these assessments present a consistent and credible picture of ongoing psychological challenges. I find their recommendations persuasive and sufficient to support the reasonableness and necessity of the treatment plan.
52Therefore, on a balance of probabilities, I find that the treatment plan is both reasonable and necessary.
53I find that the treatment plan dated November 8, 2022, for the amount of $13,297.89 is reasonable and necessary.
54The plan is signed by Dr. Dimitri Louvish. It outlines the following goals: pain reduction, increased strength, expanded range of motion, improved participation in daily activities, and a return to normal activities.
55The proposed services include brokerage services, 12 sessions of mental health counselling, 20 sessions of manipulation across multiple body sites, 20 sessions of exercise across various body sites, 10 sessions of mobilization in different body areas, 20 sessions of muscle stimulation for the back, and 15 sessions of therapy on multiple body regions. These services are designed to provide comprehensive physical and psychological rehabilitation.
56The applicant submits that the plan is reasonable and necessary because Dr. Louvish diagnosed her with chronic pain syndrome after a chronic pain assessment. She meets criteria like reduced activity, social withdrawal, psychological effects, and inability to regain pre-accident function. Dr. Louvish recommended a multidisciplinary program for her chronic neck, shoulder, back, hip pain, and migraines, including psychological support, imaging, chiropractic care, massage, and other therapies. Her specialists, Dr. Prutis and Dr. Heller, support ongoing conservative treatment. She argues this program is vital for managing her condition and restoring function, deeming it both reasonable and necessary.
57The respondent argues that the applicant relies on an ineffective report from Dr. Louvish, who only reviewed the OCF18s and Dr. Brunshaw's psychological report. Not only are the IEs and Dr. Castro’s reports more consistent with the medical records, but Dr. Louvish also did not review any medical records.
58The treatment plan is supported by corroborating medical evidence. Dr. Remtulla (December 7, 2021) recommended therapy, massage, chiropractic treatments, and manipulation therapies, which align with the services proposed in the plan. Dr. Louvish (October 22, 2022) recommended a multidisciplinary chronic pain program that includes massage therapy, chiropractic treatment, and adjunctive therapies.
59I do not agree with the respondent’s position. While it argues that Dr. Louvish’s report is ineffective because he did not review the applicant’s complete medical records and relied only on the OCF-18s and Dr. Brunshaw’s psychological report, this criticism is not persuasive in light of the broader evidentiary context. The treatment plan is supported by recommendations from both the applicant’s treating physician, Dr. Remtulla, and her family doctor, whose assessments were contemporaneous to the date of the plan and consistent with its goals. For example, Dr. Remtulla recommended therapy, massage, chiropractic treatments, and manipulation therapies, interventions that align closely with those proposed in the plan. Similarly, Dr. Louvish’s recommendation for a multidisciplinary chronic pain program reflects the same objectives: pain reduction, improved function, and psychological support.
60Although the respondent claims that the IE reports, including Dr. Castro’s, are more consistent with the medical records, it has not provided any substantive evidence to demonstrate that those reports better reflect the applicant’s condition or needs. In contrast, the opinions of Dr. Louvish and Dr. Brunshaw are consistent with the applicant’s reported symptoms and the treatment goals outlined in the plan. Taken together, the contemporaneous and corroborating medical evidence supports the reasonableness and necessity of the proposed treatment.
61Therefore, I find, on a balance of probabilities, that the treatment plan is reasonable and necessary.
62I find that the treatment and assessment plans dated November 22, 2022, and December 22, 2022, each in the amount of $2,486.00, are reasonable and necessary.
63The purpose of these assessment plans is to determine whether a condition exists that warrants further investigation. The applicant bears the onus of showing that there is a reasonable basis to believe such a condition exists. The plans, signed by Dr. Vincenzo Basile and Dr. Oleg Livshin, propose neurological assessments, including an MRI of the cervical spine, to evaluate for accident-related neurological impairments and to provide clinical recommendations to support recovery and return to function.
64The applicant argues that the neurological assessments are justified due to her ongoing symptoms, headaches, dizziness, and neck pain, diagnosed as a concussion and chronic daily headaches with migraines. These assessments aimed to clarify her neurological impairments and guide treatment. She contends that her clinical presentation and medical evidence supported investigating potential neurological conditions, making the assessments vital for diagnosis and rehabilitation planning.
65The respondent denied the plans on two grounds: first, that the applicant’s injuries fall within the MIG, relying on Dr. Zabieliauskas’s opinion; and second, that the services proposed in the November 22, 2022, plan would be covered by OHIP and are therefore excluded under section 47(2) of the Schedule. However, other than its submissions, the respondent has not directed or pointed me to evidence that the specific services proposed, particularly the private neurological assessment and MRI with interpretation, were in fact available to the applicant through OHIP within a reasonable timeframe.
66The medical evidence available around the time of the treatment plans supports the need for further investigation. As outlined in the MIG analysis, the applicant had persistent complaints of neck, back, and hip pain throughout 2022, with functional limitations noted by her treating physicians. These symptoms raised concerns about possible underlying neurological or structural issues that could not be resolved through conservative treatment alone. The two assessments appear to be complementary: one focused on neurological evaluation and the other on diagnostic imaging and interpretation, both aimed at clarifying the cause of ongoing symptoms and informing treatment planning.
67The applicant has demonstrated that the neurological assessment plans are reasonable and necessary due to her ongoing symptoms after the accident, including headaches, dizziness, and neck pain. These symptoms were diagnosed by her treating neurologist, Dr. Prigozhikh, as a concussion and posttraumatic chronic daily headaches with migraine features. The assessments were proposed to explore the neurological cause of these symptoms and to help identify suitable treatment. Additionally, treating physicians such as Drs. Kamenskaia, Prutis, and Louvish consistently recommended diagnostic imaging and specialist evaluations around the time the plans were submitted. Their advice confirms the need for further investigation and supports the conclusion that the assessments are clinically justified.
68Accordingly, on a balance of probabilities, I find that both treatment and assessment plans are reasonable and necessary.
69I find that the treatment and assessment plan dated August 23, 2022, in the amount of $2,486.00, for a chronic pain assessment, is reasonable and necessary.
70The plan, signed by Dr. Grigory Karmy, proposes an assessment to evaluate the extent of the applicant’s chronic physical and psychological impairments, provide a prognosis, and offer treatment recommendations to support recovery and functional improvement.
71The applicant argues the plan is necessary due to her ongoing post-accident symptoms, including pain in her neck, back, shoulder, and hip. In October 2022, Dr. Louvish diagnosed chronic pain syndrome with significant functional limitations. His report recommended a multidisciplinary treatment, including imaging, psychological consultation, chiropractic care, massage, and other therapies. She insists this assessment was crucial for accurate diagnosis and an effective rehab plan, meeting the legal threshold of a reasonable possibility her condition exists.
72The respondent argues that the applicant made no submissions regarding this treatment plan and relies on Dr. Rodrigo Castro’s report, which concluded that the applicant sustained only minor injuries consistent with the MIG. However, Dr. Castro’s findings do not address the applicant’s evolving symptoms or functional limitations as documented by her treating physicians.
73The need for this assessment is supported by medical evidence available around the time of the treatment plan. As outlined in the MIG analysis, the applicant had ongoing complaints of neck, back, and hip pain documented by her treating physicians throughout 2021 and 2022. For instance, Dr. Kamenskaia’s clinical notes from June 3, August 10, and December 7, 2022, describe persistent pain and emerging functional limitations, including difficulty walking and pain radiating into the groin. These symptoms suggest a condition that warrants further investigation through a structured chronic pain assessment.
74Therefore, based on the balance of probabilities and the contemporaneous medical evidence, I find that the treatment plan is reasonable and necessary.
75I find that the treatment and assessment plan dated March 14, 2022, in the amount of $2,486.00, for a psychological assessment, is reasonable and necessary.
76The plan, signed by Jacqueline Brunshaw, proposes an assessment to evaluate the applicant’s psychological and emotional functioning following the accident, identify any accident-related psychological impairments, and provide recommendations for treatment and recovery.
77The applicant argues that the plan is reasonable and necessary to evaluate whether she had a psychological condition related to the accident. She reported symptoms like sleep issues, anxiety, nervousness, and driving fears during pre-screening. Dr. Brunshaw recommended a psychological assessment, which confirmed a diagnosis of adjustment disorder with anxiety. The assessment revealed emotional distress and impairments, leading to helpful psychological treatment. She states the assessment was vital for understanding the accident's impact on her mental health and guiding treatment, meeting the threshold that a psychological condition was possible.
78The respondent relies on Dr. Dancyger’s psychological assessment to argue that the applicant does not suffer from any accident-related psychological impairment. Although the applicant reported pain and dizziness, Dr. Dancyger found no objective evidence of a diagnosable psychological disorder and concluded that her injuries were minor.
79The necessity of the plan is corroborated by contemporaneous medical evidence. Specifically, CNRs from Dr. Kamenskaia dated December 21, 2021, raise the possibility of PTSD. These notes support the need for further psychological evaluation. Additionally, the applicant’s reported symptoms, including anxiety, stress, and emotional distress, were noted in her early medical records after the accident and are consistent with the purpose of the proposed assessment.
80However, based on the contemporaneous evidence available at the time of the treatment plan, I find, on a balance of probabilities, that the psychological assessment is reasonable and necessary to determine the nature and extent of the applicant’s psychological symptoms and to guide appropriate treatment.
Interest
81Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits in accordance with s.51.
Award
82The applicant seeks an award under section 10 of Regulation 664. Under section 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.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration)]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
83The applicant alleges that the respondent failed to thoroughly and fairly review the medical evidence, promptly examine the file, and reassess the claim with new information. The respondent relied on inconsistent insurer examinations, disregarded clear medical evidence, and failed to update assessments after receiving new medical reports. Payments were unreasonably withheld despite recent medical evidence from the applicant’s practitioners, and no re-evaluations were carried out after 2022.
84The respondent argues that the applicant has made broad, general statements regarding the circumstances under which an award can be granted. There has been no detail or evidence provided to justify an award.
85I agree with the respondent and find that the applicant has not met the burden of proof, on a balance of probabilities, to establish that the respondent’s conduct amounted to unreasonable withholding or delay of benefits as defined under s. 10 of Reg. 664. While the applicant raised concerns regarding the respondent’s handling of medical evidence and reassessments, the submissions lacked sufficient detail and evidentiary support to demonstrate conduct that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, as required by the legal threshold for an award.
86Therefore, I conclude that the applicant is not eligible for an award.
ORDER
87For the above reasons, it is ordered that:
i. The applicant’s injuries are not predominantly minor, and therefore, she is entitled to treatment beyond the monetary limit of the MIG.
ii. The applicant is entitled to the disputed treatment plans, with interest pursuant to s. 51 of the Schedule.
iii. The applicant is not entitled to an award.
Released: August 28, 2025
Harouna Saley Sidibé
Adjudicator