Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-006942/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:
Tina Bucci
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Clayon Allen, Counsel
For the Respondent: Paras Gogna, Counsel
HEARD: In Writing
OVERVIEW
1Tina Bucci, the applicant, was involved in an automobile accident on May 8, 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, Belair Insurance Company Inc, 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 Erin Langis, CanMed Evaluations Inc., in an OCF-18/treatment plan (“treatment plan”) dated March 21, 2024?
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?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has suffered a non minor injury, and has been removed from the MIG $3,500.00 treatment limit.
4The applicant is entitled to $2,200.00 for a psychological assessment.
5The respondent is not liable to pay an award.
6Interest is due, as per s. 51 of the Schedule.
ANALYSIS
Should the applicant be removed from the MIG on the basis of psychological injury?
7The applicant has met her onus to demonstrate she should be removed from the MIG on the basis of psychological injury.
8Section 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.”
9An 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.
10The applicant submitted that she was suffering from ongoing anxiety, depression and driver’s phobia. To support her argument, she is relying upon the Clinical Notes and Records (“CNRs”) of her family physician, Dr. Abe Sasson, and a s.25 Assessment conducted by psychologist Dr. Cody Eriksen, dated November 4, 2024.
11The applicant submits that the CNRs from Dr. Sasson indicate that she visited him on January 17, 2024 to report accident-related injuries. In this meeting, he noted that the applicant was suffering from anxiety, depression, nightmares and driver’s phobia, and recommended a psychological assessment. I note that the applicant concedes the handwritten notes from Dr. Sasson are quite difficult to read, but I was able to clearly read the handwritten referral and diagnosis from this particular visit in the CNRs.
12In the s.25 Psychological Assessment Report, Dr. Eriksen diagnosed the applicant with “Somatic Symptom Disorder with Predominate Pain, Mild” and reports there is additional evidence for “Specific Phobia, automobile fear.” He further states that the applicant experiences significant distress and dysfunction which impacts her ability to live her life.
13The respondent argues that the applicant does not suffer a DSM-5 disorder, and should not be removed from the MIG on the basis of psychological injury. To support its argument, the respondent relies upon a s.44 Psychological Assessment Report authored by Psychologist Dr. Zubina Ladak, dated July 18, 2024.
14In her report, Dr. Ladak concludes that the applicant demonstrates severe depressive symptomology according to the Beck Depression Inventory II, and severe anxiety according to the Beck Anxiety Inventory. In her summary statements, Dr. Ladak states simply “From a psychological perspective, Ms. Bucci does not meet criteria for a formal DSM-5 diagnosis as it relates to the subject accident.”
15The respondent raises additional concerns about the s.25 report, stating that it should be given less weight because it was conducted virtually, and does not indicate the duration of testing.
16I put more weight on the applicant’s evidence. While I am alive to the difference in testing methodologies, and the consideration of decreased weight due to virtual testing, I find that in this case the respondent’s expert report is internally inconsistent. Dr. Ladak clearly points out that the applicant is demonstrating severe anxiety and depression. I am unclear as to why Dr. Ladak tested and reported “severe” scores for anxiety and depression, but still reports that the applicant does not meet the criteria for a formal diagnosis. Having read her report in its entirety, I was not led to further rationalization for the lack of a formal diagnosis.
17In summary, there are two psychologists, who both report that the applicant is demonstrating symptoms of severe anxiety and depression. I also find the applicant’s evidence is generally consistent with supportive evidence, such as the CNR’s from the applicant’s family doctor/primary care physician.
18For these reasons, I find the applicant has, on the balance of probabilities, met her onus to demonstrate she should be removed from the MIG on the basis of psychological injury.
Is the applicant entitled to the Treatment Plan for a Psychological Assessment?
19The applicant is entitled to $2,200.00 for a Psychological Assessment. To 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.
20The 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.
21The respondent has denied the OCF-18 on the basis of Dr. Ladak’s report, stating that the applicant has not met the criteria for a formal psychological diagnosis. In the denial letter dated July 22, 2024, the respondent states the applicant “has not sustained a clinically significant impairment from a psychological perspective, psychological intervention is not warranted and the March 7, 2024 Treatment and Assessment Plan is not considered reasonable and necessary. From a psychological perspective, Ms. Bucci has sustained a minor injury".
22I have already ruled that the applicant has not sustained a minor injury and has suffered a psychological injury.
23Given that I have removed the applicant from the MIG on the basis of a psychological impairment, I find the applicant has met her onus, on a balance of probabilities, to establish entitlement to the treatment plan for a psychological assessment in dispute.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies as per the Schedule.
Award
25The 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. 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 demonstrate that the respondent’s conduct meets this criteria.
26The applicant did not make a submission for an award, other than one line in written submissions that “the respondent is liable to pay an award.”
27Although I find the insurer was mistaken, I do not find that the insurers conduct rises to the level of an award. For this reason, I do not find an award is payable.
ORDER
28The application is granted in part.
i. The applicant is removed from the Minor Injury Guideline and is no longer subject to the $3,500 treatment limit.
ii. The applicant is entitled to $2,200.00 for a psychological assessment.
iii. The insurer is not liable to pay an award.
iv. Interest is payable, as per the Schedule.
Released: February 2, 2026
Jeff Chatterton
Adjudicator