Safa-Bakhsh-Shomali v. Wawanesa Insurance, 2021 CanLII 127467

Citation: Safa-Bakhsh-Shomali v. Wawanesa Insurance, 2021 ONLAT 20-000341/AABS

Licence Appeal Tribunal File Number: 20-000341/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:

Hedieh Safa-Bakhsh-Shomali

Applicant

And

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

Hedieh Safa-Bakhsh-Shomali, Applicant

Francesco Blasi, Paralegal

For the Respondent:

Daniel Himelfarb, Counsel

Heard by videoconference on:

January 19, 2021, followed by written submissions

BACKGROUND

1The applicant was injured in an accident on December 27, 2018 and sought various benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹(''Schedule''). The respondent paid medical and rehabilitation benefits up to the monetary limit under the Minor Injury Guideline (“MIG”) and denied further medical and rehabilitation benefits on the basis of the MIG and because further treatment was not reasonable and necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

b. Is the applicant entitled to payment for the cost of examination in the amount of $2,260.00 for a psychological assessment recommended by All Health Medical Centre in a treatment plan (OCF-18) submitted on May 18, 2019?

c. Is the applicant entitled to a medical benefit in the amount of $2,250.29 for psychological treatment recommended by All Health Medical Centre in a treatment plan (OCF-18) submitted on June 20, 2019?

d. Is the applicant entitled to a medical benefit in the amount of $4,540.37 for psychological treatment recommended by All Health Medical Centre in a treatment plan (OCF-18) submitted on May 31, 2019?

e. Is the applicant entitled to a medical benefit in the amount of $6,010.00 for psychological treatment recommended by All Health Medical Centre in a treatment plan (OCF-18) submitted on July 31, 2019?

f. Is the applicant entitled to a medical benefit in the amount of $1,198.00 for chiropractic treatment recommended by Dr. Nayeri in a treatment plan (OCF-18) submitted on June 17, 2019?

g. Is the applicant entitled to interest on any overdue payment of benefits?

h. Is the respondent liable to pay an award under O. Reg 664 because it unreasonably withheld or delayed payments to the applicant?

3As per the correspondence and the evidence the applicant has exhausted the monetary cap under the MIG, thus if I find that the applicant does not fall within the MIG then the treatment plans that are in dispute will be considered.

RESULT

4The applicant has not met her burden of demonstrating removal from the MIG is warranted or that the treatment plans in dispute are reasonable and necessary.

ANALYSIS

MIG and Minor Injury

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains an impairment that is predominantly a minor injury in accordance with the MIG. 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.” An 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.

6The applicant submits that she is removed from the MIG based on a pre-existing condition of fibromyalgia. The applicant points to one note dated March 3, 2018 by her family doctor Dr. Fallahian that speaks to a discussion about a fibromyalgia diagnosis. It is unclear if a diagnosis was made. The applicant points to no evidence other than this one notation of March 3, 2018.

7The first part of Section 18(2) states that the monetary limit of the MIG does not apply if the insured’s medical practitioner determines and provides compelling evidence that the insured person has pre-existing medical condition that was documented by a medical practitioner. In seeking to establish the aforementioned, the applicant points to the note of March 3, 2018 by Dr. Fallahian, her family doctor. This falls short of what is required by the Schedule and is contrary to the information in the clinical note of January 3, 2018 wherein Dr. Fallahian writes that the applicant’s musculoskeletal system is normal. There is no further mention of pains, musculoskeletal issues, and/or fibromyalgia since the note of March 3, 2018 until the accident. Thereafter there is no mention of fibromyalgia. Thus, the applicant has not met her burden of providing compelling evidence of a pre-existing medical condition that was documented by a medical practitioner.

8The second part of Section 18(2) requires that, in addition to proving the pre-existing medical condition, the applicant must also show that the pre-existing condition cannot be treated within the confines of the MIG. The applicant has provided no evidence on this and thus the applicant remains within the MIG.

9The applicant also submits that her injuries cannot be minor due to the diagnostic imaging received after the accident. The diagnostic imaging shows that, following the accident, the applicant had a partial tear in her left shoulder. As seen in the note of Dr. Liaghati of January 9, 2019, the applicant reports no pain in her left shoulder; however, it is noted that there is a limited range of motion. The applicant testified during the hearing that she had a shoulder injury in a previous car accident in 2012. However, I accept that this limited range of motion in the left shoulder may be related to the subject accident and was not an ongoing issue before the subject accident because, as discussed above, one year (on January 3, 2018) earlier the applicant had a normal range of motion in her extremities.

10The diagnostic imaging shows degenerative disc changes at L5-S1, which I find to be unrelated to the accident and rather asymptomatic degeneration and not an acute injury because the clinical note of January 9, 2019 confirms that the there is no pain, no tenderness and full range of motion in the SI joint.

11As per the Schedule, “minor injury” includes a “sprain” and any clinically associated sequelae to such an injury. Under part 2 of the MIG, “sprain” is defined as “an injury to one or more tendons or ligaments or to one or more of each, including a partial but not complete tear” (emphasis added). The applicant’s partial tear in her left shoulder is thus a minor injury.

12The applicant has not met her burden to show that her physical injuries fall outside of the definition of “minor” under the Schedule nor has she shown that her physical injuries cannot be treated within the confines of the MIG.

13Lastly the applicant submits that, as a result of the accident, she sustained psychological injuries that fall outside the definition of “minor” under the Schedule and therefore release her from the MIG. There is no dispute that psychological injuries are not minor injuries under the Schedule.

14The applicant relies on the report of Dr. Belyakova, psychologist, dated June 20, 2019. Dr. Belyakova diagnosed the applicant with “Adjustment Disorder with Mixed Anxiety, Depressed Mood, and Specific Phobia, Situational Type (driving, travelling as a passenger and pedestrian).”

15I am not persuaded with this report because Dr. Belyakova notes that the applicant has a history of two previous motor vehicle accidents and the subject accident. The applicant reports experiencing flashbacks of the subject accident and of the two prior motor vehicle (i.e. flashbacks of all three accidents) accidents yet Dr. Belyakova relates the symptoms, complaints and diagnosis only to the subject accident. Further, Dr. Belyakova is left to only rely on the information provided by the applicant and does not review any further documents. The evidence provided, however, is that the applicant was involved in subsequent accident on May 25, 2019,² five days prior to the assessment with Dr. Belyakova. However, this was never told to Dr. Belyakova and thus Dr. Belyakova does not mention or even consider it.

16Dr. Belyakova as well recommends a neuropsychological assessment based on the self-reported cognitive difficulties. The applicant tells Dr. Belyakova that following the accident she was “dizzy/disoriented/confused after the collision, vomited following the accident”. However, this is in contrast to the information provided to her Dr. Liaghati on January 9, 2019 where the applicant reports her dizziness resolved in 2 hours following the accident, no vomiting, no amnesia and no confusion. It is also noted that the applicant did not seek any medical attention following the subject accident of December 27, 2018 and neither the police nor the ambulance attended. Her first attendance at any medical practitioner following the accident, as per the evidence, is January 9, 2019.

17The applicant points to the clinical notes of January 23, 2019 and January 29, 2019 as evidence of the ongoing psychological injuries. The respondent points out that the notes of January 23, 2019 of Dr. Fallahian are the applicant self-reporting her diagnoses of PTSD, anxiety and panic disorder. I agree with the respondent. Dr. Fallahian’s notes of January 23, 2019 clearly show the applicant is telling her doctor that she and her husband both have PTSD symptoms as a result of the accident. Dr. Fallahian’s assessment that day is that the applicant is alert, oriented and has no suicidal or homicidal ideation and no perceptual disturbances. She has normal judgment and normal cognition. Further in this note and the subsequent note of January 29, 2019, there are no recommendations for treatment.

18The only note of any psychological issues is on February 25, 2019 by Dr. Fallahian. At this visit he notes that the applicant has depression and suicidal ideation. However, he does not relate this to the motor vehicle accident, nor does he make mention of the accident. He notes that there was a previous suicide attempt in September of 2018; however, the notes and records from the hospital indicate that this was not a suicide attempt but an accidental medication overdose. Dr. Fallahian recommends psychotherapy. There are no further notes and nothing further in terms of other treatments, progress or if the psychotherapy was even pursued.

19The applicant also testified that she saw a psychiatrist 3-4 times, that she told her family doctor that she has issues with her self-care and motivating herself to get out of bed, that she stays in bed for two weeks without showering and that she was taking anti-depressants. However, there is no evidence supporting or confirming any part of this oral testimony. Specifically, there are no notes from a psychiatrist, there are no notes or medical records showing that the applicant is remaining in bed for two weeks or that she is taking medications regularly to treat her psychological symptoms. There is also no further evidence that points to these impairments being as a result of the accident.

20I do not find that the applicant has met her burden to show that she sustained psychological injuries as a result of the accident. She relies on the report of Dr. Belyakova, psychologist, but her self-reporting to Dr. Belyakova is different than her testimony in that she never tells Dr. Belyakova that she stays in bed for two weeks and does not shower, that she is taking medications regularly and that she is has a treating psychiatrist. This is over and above the issues with the report of Dr. Belyakova that are mentioned above, which includes the applicant not telling Dr. Belyakova that she (the applicant) was involved in a motor vehicle accident five days prior to the assessment and her stating that she vomited after the subject accident and reporting the opposite to her treating doctor shortly after the accident.

21Also, the applicant was assessed by Dr. Bernstein, psychologist, on June 19, 2019, for an insurer examination (IE). I note that in the report of Dr. Bernstein, the applicant is reporting physical injuries that are not mentioned in the family doctor’s records. For example, the applicant states that she twisted her ankle during the accident. This is not reported elsewhere and certainly not reported within the three months following the accident. She reports knee pain as a result of the accident; again, this is not reported elsewhere. She reports back pain as an accident related injury. This is in contrast to Dr. Liaghati’s note of January 9, 2019, noting no back pain during the physical examination.

22Dr. Bernstein concludes that there are no psychological impairments as a result of the accident.

23Based on the above, the applicant’s self reporting of psychological injuries is undermined by the lack of evidence and specifically medical and/or other corroborating evidence that shows that on a balance of probabilities the applicant sustained psychological injuries as a result of the accident. As I am not persuaded by the report of Dr. Belyakova, the remaining evidence from her family doctor does not show that she has psychological injuries as a result of the accident. Thus, the applicant’s injuries continue to be defined as “minor” under the Schedule and the applicant remains within the confines of the MIG.

The Disputed Treatment Plans

24The applicant and respondent confirmed that the limits of the MIG have been exhausted. Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the five treatment plans in dispute are reasonable and necessary under s.16 is not required.

25The applicant raises issues of the respondent being in non-compliance with section 38 in denying four of the treatment plans. The four treatment plans are listed as issue c. (TP2), issue d. (TP3), issue e. (TP4) and issue f. (TP5).

26TP2, TP3 and TP4 are treatment plans psychological services (including a treatment plan for driver reintegration). The applicant submits that the respondent did not provide medical reasons for its denials nor did they seek to do a section 44 assessment.

27Pursuant to Section 38, within ten business days of receipt of a treatment plan, an insurer that denies the plan must (amongst other things) provide all medical and other reasons as to why the treatment plan is denied. In each of the denial letters denying TP2, TP3 and TP4, the denial letters³specifically state that, based on the IE, no further facility-based psychological treatment is supported or necessary. The respondent then references the findings of the IE report of Dr. Bernstein and points out the specific findings as follows:

Given the available data, it is the examiner’s professional opinion that the claimant’s presentation does not currently meet sufficient criteria to render any psychological diagnosis.

It is the examiner’s professional opinion that the claimant is not currently suffering from a psychological impairment as a result of the motor vehicle accident.

28The “medical and any other reasons” for the denial of the treatment plans must be clearly set out in straightforward language capable of being understood by an unsophisticated person, per the Supreme Court of Canada’s ruling in Smith v. Co-operators General Insurance Co.⁴ I find that the notice satisfies the requirements under section 38(8) as the respondent clearly states that it is relying on the report of Dr. Bernstein and the respondent specifically tells the applicant which part or parts of the medical opinion it is relying upon for its non-acceptance of further facility-based psychological treatment.

29The applicant points out that the respondent did not state that it is relying on the MIG as is required pursuant to section 38(9). As noted above, the basis for the denial was not that the injuries are MIG but was the reasons stated above and thus section 38(9) does not apply.

30With respect to the treatment plan for chiropractic treatment (TP5), the applicant submits that the respondent breached s.38(8). Here, the denial letter of July 2, 2019 states:

We have reviewed this OCF 18 along with the medical documentation and other information we have on file and compared the information in these documents to the definition of a minor injury outlined in the Statutory Accident Benefits Schedule (SABS).

We believe the Minor Injury Guideline (MIG) applies to your impairment as we have not received medical documentation to the contrary.

31The applicant does not point to anything particular but posits that the above does not indicate a medical reason. I find that the above is in keeping with Smith v. Co-Operators General Insurance⁵ in that the respondent is clearly indicating that there is no medical information to remove the applicant from the MIG and that injuries fit the definition of minor i.e. sprain, strain whiplash…etc. Thus, I find that there is no breach of s.38(8).

Interest and Award

32As no benefits are due, no interest is payable under section 51 of the Schedule. Further, as no benefits were withheld, it cannot be said that the respondent unreasonably withheld the benefits, thus there is also no award under O.Reg.664.

CONCLUSION

2The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The treatment plans in dispute are not payable and neither interest nor an award under O. Reg. 664 apply.

Footnotes

1. 1O.Reg. 34/10 as amended.
2. 2Applicant’s book of documents, tab 22 page 9.
3. 3For TP2 letter from the respondent dated July 3, 2019, for TP3 letter form the respondent dated July 5, 2019 and for TP4 letter from the respondent dated August 16, 2019
4. 42002 SCC 30
5. 5Ibid.