Citation: Bekee v. Belair Insurance Company Inc., 2025 ONLAT 23-012330/AABS

Licence Appeal Tribunal File Number: 23-012330/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:

Amarachi Bekee Applicant

and

Belair Insurance Company Inc. Respondent

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Kim Mohammed-Sieudhan, Paralegal

For the Respondent: Thusha Mayuran, Counsel

HEARD: By way of written submissions

1Amarachi Bekee, the applicant, was involved in an automobile accident on November 10, 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.

PRELIMINARY ISSUE

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing for issue 3(iv) below, for $1,995.47 for psychological services dated September 20, 2023, because the applicant failed to attend an insurer's examination 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 $3,024.62 for physiotherapy services proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 ("plan") dated April 6, 2022?

iii. Is the applicant entitled to $1,995.33 for psychological services proposed by Humber Civic Care Centre Inc. in a plan dated March 23, 2022?

iv. Is the applicant entitled to $1,995.47 for psychological services proposed by Humber Civic Care Centre Inc. in a plan dated September 20, 2023?

v. Is the applicant entitled to $2,397.75 for a chronic pain assessment proposed by Ontario Independent Assessment Centre Inc. in a plan dated August 29, 2023?

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

vii. Is the applicant entitled to interest on any overdue payments of benefits?

viii. Is the respondent entitled to costs?

4The respondent requested costs under Rule 19 of the Rules in its submissions, so this is reflected in the issues in the dispute.

RESULT

5On the preliminary issue, I find the applicant is not barred from a proceeding to a hearing for issue 3(iv) for $1,995.47 for psychological services dated September 20, 2023.

6On the substantive issues I find:

i. The applicant is not barred from proceeding to a hearing for psychological services for $1,995.47.

ii. The applicant is not subject to the MIG.

iii. The treatment plan for $3,024.62 for physiotherapy services is not reasonable and necessary.

iv. The treatment plan for $1,995.33 for psychological services is reasonable and necessary.

v. The treatment plan for $1,995.47 for psychological services is reasonable and necessary.

vi. The treatment plan for $2,397.75 for a chronic pain assessment is reasonable and necessary.

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

viii. The applicant is entitled to interest in accordance with s. 51 of the Schedule for the treatment plan for psychological assessment, for psychological services, and the chronic pain assessment.

ix. The applicant is not liable to pay costs.

PROCEDURAL ISSUE

7The applicant's request to accept late-filed submissions is granted. The submissions were filed on November 20, 2024, fourteen days after the deadline for submissions.

8The applicant filed a Notice of Motion on November 20, 2024, requesting the Tribunal accept the late filed submissions. The applicant provided no explanation for the late filing and states the respondent had sufficient time to file their written submissions despite the applicant's late filing. The applicant states the prejudice caused by not allowing the late submissions would result in losing her right to dispute entitlement to the benefits at issue. I will consider the applicant's request to accept the late filed submissions.

9The respondent submits that the applicant's initial submissions were due on November 5, 2024, in accordance with the Case Conference Report and Order ("CCRO"), and she did not serve her submissions until November 20, 2024, fourteen days after the deadline passed. The respondent requests that the applicant's submissions should not be considered for the purposes of this hearing. The respondent states it would be prejudiced because it does not know the case it has to meet.

10Rule 9.4 of the Licence Appeal Tribunal Rules, 2023 ("the Rules") provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal.

11I find that the respondent has not substantiated the prejudice of submissions served fourteen days past the deadline. The respondent filed a response on November 20, 2024, that is the same day as the applicant made its submissions.

12In this case, I find the applicant would be significantly prejudiced if her submissions were excluded, as the evidentiary onus rests with the applicant. The applicant's submissions are accepted.

PRELIMINARY ISSUE ANALYSIS

13I find the applicant is not barred from proceeding to a hearing for issue 3(iv) for $1,995.47 for psychological services dated September 20, 2023.

14The respondent raised the preliminary issue at the April 16, 2024 Case Conference. The respondent's submissions are silent on this issue.

15The applicant submits that she attended the rescheduled insurer examinations on July 10, 2024 and the respondent has been in possession of the section 44 insurer examination reports as of July 16, 2024.

16I find the applicant is not barred from proceeding on this issue because she attended the rescheduled examinations.

SUBSTANTIVE ISSUES ANALYSIS

Application of the Minor Injury Guideline

17I find the applicant's injuries are not predominantly minor injuries and therefore she is not subject to the MIG.

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."

19The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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 has suffered psychological impairments and chronic pain as a result of the accident and these issues prevent maximal recovery if she is kept within the MIG.

21The respondent submits that the applicant's injuries are treatable within the MIG, and her injuries do not warrant removal from the MIG. The respondent relies on the denials, as previously issued to the applicant.

Does the applicant have a psychological impairment that warrants removal from the MIG?

22I find the applicant has met her burden to prove that she suffers from a psychological impairment and that would warrant removal from the MIG.

23The applicant submits she has difficulty coping with stress, depressed mood, discomfort and driving anxiety as a result of the accident. The applicant relies on Ms. Bartis' report, the OCF-3 completed by Dr. Dario Miran, the family doctor's clinical notes and records ("CNRs"), and Dr. Papazoglou's s. 25 report.

24The respondent denied the plan and states the applicant's injuries are treatable within the MIG and the applicant has not produced sufficient evidence to demonstrate entitlement to treatment beyond the MIG. The respondent relies on the s. 44 psychological examination report dated August 22, 2022, prepared by Dr. Rodney Day, psychologist. Ms. Bartis' report finds the applicant has a psychological impairment and the family doctor's CNRs refer to the applicant's psychological conditions.

25Dr. Day's s. 44 insurer examination report states the applicant has not experienced nightmares in the previous 3 or 4 months and "does not meet the full criteria for any diagnosis consistent with the DSM-5-TR." Dr. Day's report states the applicant does endorse symptoms of anxiety while in a vehicle, however, she "does not currently suffer a significant psychological impairment as a result of the index accident." I am not persuaded by Dr. Day's report because the weight of the evidence indicates that the applicant has repeatedly reported psychological disturbances to her family doctor, has been diagnosed with "adjustment disorder (with anxiety)" and "specified (isolated) phobia (driving/passenger)" by Dr. Papazoglou and was referred on multiple visits for psychotherapy.

26On a balance of probabilities, I find that the applicant has a psychological impairment that removes them from the MIG for the following reasons.

27The applicant's family doctor, Dr. Pranay Chander notes the applicant had trouble sleeping and nightmares as a result of the accident and referred the applicant to a psychotherapist. The assessment conducted by Dr. Papazoglou corroborates the applicant's family doctor by noting the applicant "continues to experience considerable difficulties with sleep initiation and maintenance … [this] resulted in significant daytime fatigue and a low energy level throughout the day." The applicant "scored in the above average range for anxiety and in the average range for depression and somatic problems". Dr. Papazoglou diagnosed the applicant with adjustment disorder/anxiety and specific isolated driving phobia.

28Furthermore, the respondent's insurer examination assessor, Dr. Day, also noted the applicant endorses symptoms of anxiety while in a vehicle and determined that the applicant does not suffer "significant" psychological impairment. However, in my view, psychological impairments do not have to rise to the level of "significant".

29I am persuaded of the evidence that indicates that the applicant has repeatedly reported psychological disturbances to her family doctor, has been diagnosed with "adjustment disorder (with anxiety)" and "specified (isolated) phobia (driving/passenger)" by Dr. Papazoglou and was referred on multiple visits for psychotherapy.

30I find on a balance of probabilities that the applicant has met her burden to establish that she has a psychological impairment as a result of the accident that warrants removal from the MIG.

31As a result of finding the applicant to be outside of the MIG as a result of psychological impairment, there is no need to discuss whether the applicant is out of the MIG based on chronic pain.

32To receive payment for an OCF-18 under sections 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 the treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

Is the treatment plan for $3,024.62 for physiotherapy services reasonable and necessary?

33I find on a balance of probabilities the applicant has not demonstrated that the physiotherapy services treatment plan in dispute is reasonable and necessary.

34The applicant submits the treatment plan for $3,024.62 includes assessment, 18 therapy sessions, 18 exercise sessions, 18 manipulation sessions, and a personalized exercise program. The treatment is proposed over a period of 9 weeks. The injuries listed include headache, whiplash associated disorder, injury of muscle and tendon at neck, sprain and strain of cervical spine, thoracic spine, shoulder joint, elbow, lumbar spine, knee, disorder of sleep and anxiety, dizziness, restlessness, agitation, emotional shock and stress, problems related to lifestyle and social environment. The stated goals of the plan are pain reduction, increase in strength, increased range of motion, return to activities of normal living, return to modified work activities and it will be evaluated through visual analogue scale, range of motion, subjective reporting, objective testing, functional testing. The plan was submitted April 6, 2022, seventeen months after the accident.

35The applicant relies on the OCF-18 prepared by Dr. Miran, and the CNRs of Dr. Neeta Jain, family physician.

36The respondent denied the plan because the applicant's injuries fall under the MIG, and it found there is insufficient compelling medical documentation to support treatment outside of the MIG. The respondent relies on the s. 44 psychological MIG assessment report prepared by Dr. Rodney Day, psychologist, dated August 22, 2022, and the s. 44 independent physician assessment report prepared by Dr. Sabrina Tu, physician, dated October 17, 2023.

37I have reviewed the OCF-18 prepared by Dr. Miran, the CNRs of the family doctor, and the s. 44 report prepared October 17, 2023 by Dr. Sabrina Ming-Wai Tu, physician. I am not persuaded the treatment plan is reasonable and necessary for three reasons. First, the injuries listed in the OCF-18 are not consistent with the family doctors CNRs. The family doctor noted on three visits spanning from November 2021 to April 2022 that the applicant has "soft tissue injury", range of motion was mildly restricted, and there was no mention of whiplash associated disorder, headache, or shoulder, elbow, and knee complaints related to the accident in the CNRs. Second, Dr. Tu's s. 44 physician assessment report states, "There are no objective musculoskeletal impairments … as a direct result of the subject MVA" and this is consistent with the family doctor's CNRs after the accident. Third, the OCF-18 states "exercise", "therapy", and "manipulation" at "multiple body sites" and the applicant has not directed me to any evidence in support or other medical practitioner recommending physiotherapy treatment around the same period of time as the treatment plan.

38I find on a balance of probabilities the treatment plan for physiotherapy services is not reasonable and necessary.

Is the treatment plan for $1,995.33 for a psychological assessment reasonable and necessary?

39I find on a balance of probabilities the applicant has demonstrated that the psychological assessment is reasonable and necessary.

40The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

41The applicant submits she suffered psychological impairments following the accident including driver/passenger anxiety and sleep related disorders. The treatment plan is for documentation and assessment. The applicant relies on the s. 25 psychological assessment prepared by Dr. Papazoglou.

42The respondent denied the plan because it found that the applicant's injuries fall within the MIG and there is no compelling evidence for a psychological assessment. The respondent relies on the psychological assessment prepared by Dr. Day.

43The applicant's family doctor's CNRs corroborate Dr. Papazoglou's s. 25 report about the need for a psychological assessment. The applicant's family doctor notes from November 2021 to July 2022 that the applicant's accident-related injuries include anxiety and sleep disturbances, and she was also referred for psychotherapy shortly after the accident in November 2021 and again in July 2022.

44I acknowledge Dr. Day's s. 44 report states the applicant does not meet the criteria for any psychological diagnosis under the DSM-5. However, the report also states the applicant endorses symptoms of anxiety, similar to what was reported by her family doctor in the CNRs. This supports a finding that the applicant had a condition that warranted further investigation by way of an assessment.

45I find on a balance of probabilities that a psychological assessment is reasonable and necessary.

Is the treatment plan for $1,995.47 for psychological services reasonable and necessary?

46I find on a balance of probabilities the treatment plan for psychological services is reasonable and necessary.

47The applicant submits the treatment plan is intended to treat her adjustment disorder and driving/passenger phobias. The intended goals include pain reduction, to improve emotional coping, return to activities of normal living and return to pre-accident functioning. Progress will be evaluated through a re-assessment. The plan includes documentation, and 12 sessions of therapy over a period of 12 weeks. The treatment plan dated September 14, 2023 was prepared by Dr. Papazoglou and relies on the s. 25 report also prepared by Dr. Papazoglou.

48The respondent submits it denied the plan because the applicant did not attend the s. 44 insurer examination, the plan is not reasonable and necessary, and it found the applicant's injuries fall within the MIG. The respondent relies on the s. 44 psychological MIG assessment report prepared by Dr. Rodney Day, psychologist, dated August 22, 2022.

49As set out above in the preliminary issue analysis, the applicant did not attend the initially scheduled s. 44 appointment; however, it was rescheduled, and she attended the s. 44 insurer examination on July 10, 2024.

50The applicant's family doctor CNRs referred the applicant for psychotherapy on her visits of November 24, 2021, and July 6, 2022 with complaints of sleep disturbances due to the accident on December 28, 2021, and April 22, 2022. I am persuaded by the applicants ongoing complaints documented by her family doctor, and the s. 25 report, that her accident-related injuries include anxiety and sleep disturbances. I am persuaded by the evidence that this treatment plan will treat her adjustment disorder and driving/passenger phobias. The intended goals of pain reduction, improving emotional coping, returning to activities of normal living and returning to pre-accident functioning are reasonable.

51I find on a balance of probabilities that the applicant is entitled to the treatment plan for psychological services.

Is the treatment plan for $2,397.75 for a chronic pain assessment reasonable and necessary?

52I find on a balance of probabilities the chronic pain assessment is reasonable and necessary.

53The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

54The applicant submits the assessment is to diagnose chronic pain syndrome. The plan was completed by Narmin Shirin, nurse, and with oversight by Dr. Khal Efala, physician. The injuries listed in the plan include headache, whiplash associated disorder, injury of muscle and tendon at neck, sprain and strain of cervical spine, thoracic spine, shoulder joint, elbow, lumbar spine, knee, disorder of sleep and anxiety, dizziness, restlessness, agitation, emotional shock and stress, problems related to lifestyle and social environment and other chronic pain. The intended goal of the plan is to establish a diagnosis and extent of injuries. The plan includes assessment, documentation, and applicant transportation.

55The applicant relies on the CNRs of the family doctor, the CNRs of Humber Civic Care, and the OCF-18 dated August 29, 2023 and Dr. Getahun's s. 25 report.

56Dr. Getahun's report dated October 24, 2023 states the applicant suffered chronic myofascial strain of the cervical spine, thoracic spine, lumbosacral spine, bilateral shoulder and knee strains. Dr. Getahun notes the applicant satisfies six of the American Medical Association (AMA) Guides 6th Edition ("the Guides") criteria for chronic pain syndrome and "her injuries do not fall within the Minor Injury Guidelines as they have not resolved within the expected time course for uncomplicated soft tissue injuries".

57The respondent denied the plan based on Dr. Tu's s. 44 report dated October 17, 2023. Dr. Tu's report reviewed this treatment plan and states the plan is not reasonable or necessary because testing revealed there was no swelling, erythema, or deformities in the neck, shoulders, back, knees and ankles. Dr. Tu's report states the applicant "has sustained uncomplicated soft tissue injuries". Also, the report is xx years after the accident and finds the applicant has sustained uncomplicated soft tissue injuries which is similar to the finding of Dr. Getahun who found the applicant's uncomplicated soft tissue injuries have not resolved within the expected time.

58I find the family doctor's CNRs and Dr. Getahun's diagnosis are persuasive and that a chronic pain assessment is reasonable and necessary. The applicant visited her family doctor eight times from November 2021 to July 2022 with accident-related complaints of pain including her neck, back and shoulders. Dr. Getahun's report also states the applicant "is not functioning at full capacity and the applicant is unable to lift, bend, or carry heavy loads. In sum, Dr. Tu's s. 44 report and Dr. Getahun's report is in support of a chronic pain assessment.

59I find on a balance of probabilities the applicant has demonstrated that the chronic pain assessment is reasonable and necessary.

The applicant is not liable to pay costs

60The respondent submits that the conduct of the applicant should be deterred and has risen to the level of acting frivolously, vexatiously, and unreasonably. However, the respondent provided no particulars of how the applicant's actions in this proceeding rose to this level.

61Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Rules. The threshold for costs is high. The respondent has failed to provide any compelling reasons why costs should be imposed. The respondent referenced L.H. v Aviva Insurance Company of Canada, 2018 CanLII 130869, however, the distinguishing point in this instance is that the applicant made submissions, albeit late. In accordance with Rule 19.2 the respondent has requested costs be awarded in the amount of $1,000.00. I am not persuaded the threshold for costs has been met at this juncture because the applicant filed a submission immediately after she became aware of the missed deadline and the respondent has not persuaded me of any prejudice or how this behaviour interfered with the Tribunal's ability to carry out a fair, efficient and effective process. Thus, no costs shall be awarded.

Interest

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

63The 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." The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets this threshold.

64The applicant submits the respondent was unreasonable in its denial of the benefits. The applicant states the respondent did not give due consideration to the medical records and in turn caused the applicant undue hardship. The applicant did not direct me to evidence of this and did not submit a reply submission on this issue.

65I find an award is not appropriate as the applicant has not persuaded me of any conduct on the part of the respondent that can be considered excessive, imprudent, stubborn, inflexible, unyielding or immoderate and I find that the respondent did not unreasonably withhold or delay the payment of benefits. As a result, no award is payable.

ORDER

66For the reasons outlined above, I find: