Licence Appeal Tribunal File Number: 24-014010/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:
Yolanda Mckenzie
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sofia Ahmad
APPEARANCES:
For the Applicant:
Hermia Leung, Paralegal
For the Respondent:
Kendall Andjekovic, Counsel
HEARD: In Writing
OVERVIEW
1Yolanda Mckenzie, the applicant, was involved in an automobile accident on March 15, 2023, 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, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was the seat belted driver of an SUV which was rear-ended by a stolen vehicle in a high-speed police chase. The vehicle sustained over $18,000 worth of damage and was written off.
ISSUES
3The 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 limit (“MIG”);
ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Prime Health Care Inc. in a treatment plan/OCF-18 (“treatment plan”) submitted June 15, 2023, and denied June 27, 2023;
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant; and
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Based on the evidence before me, I find that the applicant has demonstrated that her accident-related impairments warrant removal from the MIG. She is entitled to the treatment plan of $2,200.00 for a psychological assessment. Interest is payable in accordance with s. 51 of the Schedule. An award of 25% in relation to the psychological assessment under s. 10 of Reg. 664 is payable, with interest.
5The application is granted.
ANALYSIS
The applicant has demonstrated that her impairments are not minor and therefore removal from the MIG is warranted.
6The applicant has demonstrated that she suffers from a psychological impairment that warrants removal from the MIG.
7Section 18(1) of the Schedule states the medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury.
8Section 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.” An insured person may be removed from the MIG is 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 with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.
9The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. The burden of proof lies with the applicant on a balance of probabilities in all of these cases.
10The applicant submits that the following factors remove her from the MIG:
i. her psychological impairment as a result of the accident; and
ii. her chronic pain.
11To this end, she relies on the findings of a pre-screening interview from Prime HealthCare and the clinical notes and records of her family physician, Dr. Douglas Cherepacha.
Did the applicant suffer a psychological impairment as a result of the accident?
12I find that the applicant has proven that on a balance of probabilities that she should be removed from the MIG as a result of a psychological impairment.
13The applicant submits that her psychological symptoms were first noted less than three months after the accident on June 7, 2023, during a psychological screening interview with Dr. Jacqueline Brunshaw, Psychologist.
14The applicant reported sleeping difficulties which is a functional impairment. She further submits that she is having a hard time falling asleep and staying asleep. She also reports feeling irritable, frustrated, and depressed since the accident. The applicant’s lack of sleep contributed to her poor mood.
15The applicant was prescribed an antidepressant with strong sedative properties, trazodone 50mg by her family physician, Dr. Douglas Cherepacha on October 12, 2023. On April 11, 2024, during a mental health visit with Dr. Cherepacha, the applicant reported having a panic attack two weeks prior while driving and that she had not driven since the panic attack. This is an example of a functional impairment. The applicant was diagnosed with Generalized Anxiety Disorder (GAD) and prescribed an antidepressant, Cipralex 10mg, by Dr. Cherepacha as a result of the motor vehicle accident.
16The respondent submits that the applicant’s psychological issues as a result of the motor vehicle accident do not have a functional impairment. As set out above, I find that this is not the case and that the applicant has functional impairments. The applicant submits her psychological symptoms such as sleep disruption, low energy, fatigue, depressed low mood, concentration and memory issues, pedestrian and passenger anxiety are functional impairments.
17From the legal perspective, there is not a requirement for the applicant to have a functional limitations with a psychological impairment. The applicant simply needs to have a psychological impairment as a result of the accident to be removed from the MIG.
18I find, on a balance of probabilities, that there is sufficient contemporaneous and compelling medical evidence to establish that the applicant has suffered a psychological impairment as a result of the accident. The applicant’s psychologist and her family physician both confirm her psychological impairments. I give weight to this evidence because the applicant was prescribed medication to treat her psychological impairments. She was not taking any prescription medication before the accident. These psychological impairments are a result of the accident and these psychological impairments justify removal from the MIG.
Does the applicant suffer from chronic pain with a functional impairment as a result of the accident?
19The applicant has been removed from the MIG as a result of her psychological injury. Therefore, there is no need to examine whether the applicant suffers from chronic pain with a functional impairment that warrants removal from the MIG.
Is the treatment plan reasonable and necessary?
20I find that the treatment plan for a psychological assessment is reasonable and necessary.
21To receive payment for a treatment and assessment plan under s. 15 and s. 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, and how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
22The 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.
23The applicant submits that the OCF-18 is reasonable and necessary for her recovery. She submits that the medical evidence demonstrates that the applicant requires a comprehensive psychological assessment to fully assess her psychological impairments as a result of the motor vehicle accident. Prior to the accident, the applicant submits that she had no history of psychological impairments that limited her activities of daily living. She further reports feeling irritable, frustrated, and depressed since the accident.
24I find that the treatment plan for a psychological assessment is reasonable and necessary because the applicant had accident-related symptoms as reported to Dr. Jaqueline Brunshaw, Psychologist and Dr. Douglas Cherepacha, Family Physician. I am satisfied that the applicant has a psychological impairment and is therefore from the MIG. I find that the treatment plan for an assessment to further investigate the applicant’s psychological condition is reasonable and necessary. A complete understanding of the applicant’s current functioning and reported feelings of pain, disruption of sleep, frustration, irritability, depression, social withdrawal, concentration and memory difficulties and nervousness while driving or being around vehicles is reasonable and necessary.
25The respondent submits that the applicant’s first complaint of psychological issues was over a year after the accident and that there is no need for a psychological assessment. I do not agree, because the applicant’s family physician Dr. Douglas Cherepacha on October 12, 2023 prescribed a medication (trazodone 50mg, an antidepressant with sedative properties) for her sleep disturbances. The applicant further submits the psychological pre-screening interview with Dr. Jacqueline Brunshaw, psychologist which describe her sleep difficulties following the accident. She was having a hard time falling asleep and staying asleep. The applicant reported her feeling irritable, frustrated, and depressed since the accident. Dr. Cherepacha diagnosed the applicant with anxiety and prescribed her a selective serotonin reuptake inhibitor, Cirpralex 10mg (escitalopram) on April 11, 2024 during a mental health visit. He escalated her diagnosis to a Generalized Anxiety Disorder (GAD) on February 20, 2025 and advised to continue to take the Cipralex 10mg medication.
26I find on a balance of probabilities that the treatment plan for a psychological assessment is reasonable and necessary to fully examine the applicant’s psychological state after the accident.
Interest under s. 51
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies in this case.
Award
28The applicant sought an award under s. 10 of Reg. 664. Under s. 10 of Reg. 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the 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 these criteria.
29The applicant submits that an award is appropriate in this case because the respondent unreasonably withheld and delayed the payment of benefits. By keeping the applicant in the MIG, the respondent prevented timely treatment for the applicant. The respondent failed to support maximal medical recovery. The applicant submits the medical evidence of her family physician and a psychologist. The applicant was prescribed medication to deal with her psychological issues of insomnia, depression and Generalized Anxiety Disorder. The applicant does not specifically submit a percentage of the benefit withheld as a special award.
30The respondent submits that its conduct in handling this file had not reached the stringent level of “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” in order to justify awarding the applicant a special award.
31The respondent further submits that the applicant did not have a psychological impairment with a functional limitation which would remove her from the MIG. This is not legally correct. To be removed from the MIG, the applicant simply needs to have a psychological impairment. There is no requirement for the psychological impairment to have a functional limitation.
32I agree with the applicant that a special award is payable. The respondent had an obligation to properly adjust the applicant’s claim. The insurer carries blameworthiness in this case. The applicant has provided substantial evidence of psychological impairments with medical documentation provided by her family physician and psychologist. The applicant was taking prescription medication to deal with her psychological issues as a result of the motor vehicle accident. The applicant was in a vulnerable position and the insurer had a responsibility to adjust this claim in responsible manner. By delaying examination of other possible psychological issues, there was harm or potential harm for the applicant by the insurer. There is a strong need to for deterrence of such conduct by an insurer and the advantage wrongfully gained by the insurer from the misconduct. The insurer’s conduct was inflexible, imprudent and unyielding in denying the psychological assessment. For the above sufficient reasons, I am awarding the applicant a special award of 25% of the treatment plan.
ORDER
33I order as follows:
i. The applicant is entitled to $2,200.00 for a psychological assessment, proposed by Prime Health Care Inc. in a treatment plan dated June 15, 2023;
ii. Interest is payable pursuant to s. 51 of the Schedule; and
iii. I find an award is payable in the amount of 25% of the treatment plan for a psychological assessment with interest under s. 10 of Reg 664.
34The application is granted.
Released: June 17, 2026
Sofia Ahmad
Adjudicator