Citation: Bhasin v. Security National Insurance Company, 2021 ONLAT 20-000073/AABS

Licence Appeal Tribunal File Number: 20-000073/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:

Shonu Bhasin

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Tania Lanteigne, Paralegal

For the Respondent:

Sarah Qin, Counsel

HEARD:

By way of written submissions

BACKGROUND

1S.B. was involved in an automobile accident on July 29, 2018, and sought benefits from the respondent, Security National, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ S.B. was denied several benefits by Security National based on its determination that her injuries fell within the Minor Injury Guideline (the “MIG”). S.B. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. Are S.B.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

b. Is S.B. entitled to a non-earner benefit (NEB) of $185.00 per week from September 25, 2018 to date and ongoing?

c. Is the medical benefit in the amount of $3,555.65 for physiotherapy services, recommended by Whitby Wellness Centre in a treatment plan (OCF-18) dated December 4, 2018, denied on January 18, 2019, reasonable and necessary?

d. Is the medical benefit in the amount of $3,000.17 for physiotherapy services, recommended by Whitby Wellness Centre in an OCF-18 dated April 5, 2019, denied April 26, 2019, reasonable and necessary?

e. Is the medical benefit in the amount of $3,790.70 for psychological services, recommended by Whitby Wellness Centre in an OCF-18 dated June 11, 2018, and d?

f. Is the medical benefit in the amount of $3,247.00 for physiotherapy services, recommended by Whitby Wellness Centre in an OCF-18 dated August 16, 2019, denied September 19, 2019, reasonable and necessary?

g. Is the cost of examination expense in the amount of $2,180.00 for a psychological assessment, recommended by Whitby Wellness Centre in an OCF-18 denied on May 28, 2019, reasonable and necessary?

h. Is S.B. entitled to interest on any overdue payment of benefits?

FINDINGS

3S.B. has not demonstrated that she suffered a complete inability to carry on a normal life as a result of the accident in order to receive an NEB. She has not demonstrated that her accident-related impairments justify removal from the MIG or that the disputed OCF-18s are reasonable and necessary.

ANALYSIS

Applicability of the MIG

4Section 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 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. In all cases, the burden of proof lies with the applicant.

5S.B. has not established that her accident-related injuries and impairments warrant removal from the MIG. On the evidence, as of February 25, 2019, S.B. used $3,460.11 of the available $3,500.00 under the MIG. While she is able to seek additional treatment up to the limit, the remaining amount is inconsequential, therefore an analysis of whether the OCF-18s are reasonable and necessary is not required.

6Her submissions and medical evidence conceded that she suffered mainly soft-tissue injuries, but she argues that she suffers from psychological impairments and chronic pain that justify removal from and treatment beyond the MIG limits. She relies on the clinical notes and records (CNRs) of her family physician, Dr. Vaid, an OCF-3 dated August 11, 2018 submitted by physiotherapist, Steffi Mascarenhas, physiotherapist, and a s. 25 psychological assessment by Dr. Lindal dated June 19, 2019.

7It is well-established that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. However, S.B. has never been diagnosed with chronic pain syndrome and has not demonstrated that she has ongoing pain that causes functional impairment, which, in the absence of a chronic pain syndrome diagnosis, is required. Critically, S.B. has not engaged with any of the six criteria from the AMA Guides that the Tribunal has adopted as a tool for assessing chronic pain claims. Further, she does not meet the minimum three criteria required for removal on the grounds of suffering from chronic pain under the AMA Guides.

8The OCF-3 notes the following injuries as a result of the accident: whiplash associated disorder (WADII) with complaint of neck pain with musculoskeletal signs, headache, sprain and strain of cervical spine, sprain and strain of joints and ligaments of other and unspecified parts of neck, sprain and stain of thoracic spine, sprain and strain of ribs and sternum, sprain and strain of lumbar spine, and radiculopathy. These injuries are fully captured under the definition of a minor injury, treatable within the MIG. I note that the OCF-3 indicated a disability duration of 9-12 weeks.

9Regarding the CNRs of Dr. Vaid, the post-accident record contains no reports of accident-related pain complaints. There is a neck and shoulder pain complaint noted on December 6, 2019, but no evidence that this is an accident-related pain presentation. S.B. provided additional CNRs to Security National on February 4 and February 8, 2021. Security National submits this is in contravention of the Tribunal Motion Order that ordered S.B. to provide additional CNRs by January 6, 2021. As such, Security National submits that the records should not be considered, or alternatively, be afforded little weight.

10As it is S.B.’s case to prove, I am hesitant to not consider any potentially relevant medical evidence and will allow the records. There are various handwritten notes from Dr. Vaid’s home visits, however, the year is not indicated. It is assumed the records are from 2020, as accident-related complaints are made on July 30, August 12, August 26, November 24, and December 1. However, without confirmation of the visit dates, I place little weight on these records.

11S.B. underwent diagnostic imaging of the cervical spine, left shoulder and an ultrasound of the left shoulder on December 6, 2019. The results revealed normal alignment of the cervical spine, no evidence of a left shoulder fracture and mild tendinosis was diagnosed from the ultrasound.

12On the evidence, there is little that supports that her soft-tissue injuries documented in the medical records have developed into a chronic pain condition that requires removal from the MIG to treat her accident-related pain symptomatology. I find no reason to interfere with the s. 44 multidisciplinary assessor’s opinions that S.B. suffered predominantly minor injuries and did not suffer a completely inability to carry on a normal life as a result of the accident.

13Although S.B. claims she has a pre-existing psychological history, she has not provided any documents relating to her alleged pre-existing psychological symptoms. Similarly, S.B. has not produced her prescription drug summary, decoded OHIP summary, the CNRs of Whitby Wellness Centre or the disability file to show any other course of treatment. In this regard, I draw an adverse inference that such evidence would not be assistive to her position or would be detrimental to her claim.

14Additionally, there is limited evidence to support S.B.’s position that she sustained psychological impairments as a result of the accident that warrant removal from the MIG. During the post-accident period, there is one record of S.B. being assessed by a psychologist, which was when the June 5, 2019 s. 25 assessment was performed. In his assessment, Dr. Lindal confirms that S.B. was doing well and that she felt emotionally stable at the time of the accident. It should be noted that there have been no referrals to any specialists for psychological complaints following the accident.

15I prefer the s. 44 multidisciplinary reports of the orthopaedic surgeon, psychologist and, occupational therapist, who concluded that: (i) S.B. does not suffer a complete inability to carry on a normal life as a result of the accident because she continues to drive, attend to housekeeping and cooking tasks, engages with her family, attends appointments, and is independent with her personal care (orthopaedic surgeon, Dr. Auguste); (ii) that she did not provide valid evidence of an accident-related psychological impairment that would result in a complete inability to carry on a normal life (psychologist, Dr. Hope); and, (iii) she demonstrated sufficient mobility, range of motion, strength and tolerance as well as cognitive abilities to resume participation in many of her normal activities of daily living (occupational therapist, Mr. Pritchett).

16While the s. 44 assessors did address the NEB, consideration was given in the reports towards the disputed OCF-18s, and the applicability of the MIG. To be clear, the assessors considered whether S.B.’s injuries were soft tissue in nature and subsequently predominantly minor and whether further facility-based treatment was reasonable and necessary, concluding in the negative. I find the opinions applicable to the MIG because her self-reporting along with the objective testing, supports that she suffered predominantly minor injuries. As Aviva relied on the same reports regarding NEB, the reports necessarily considered whether S.B. suffered a complete inability to carry on a normal life as a result of the accident, again concluding that, objectively, she did not.

17On a whole, the s. 44 reports are supported by S.B.’s evidence and I agree with Security National that S.B. has not demonstrated that she sustained an impairment that warrants removal from the MIG.

Are the OCF-18s reasonable and necessary?

18I have determined that S.B. has not demonstrated that her accident-related impairments require removal from and treatment beyond the MIG limit. Although there is a nominal amount remaining under the MIG, the remaining amount of approximately $40.00 is of little consequence and S.B. did not identify which portions of the remaining OCF-18s would be considered reasonable and necessary for the remaining amount, therefore an analysis of whether the OCF-18s are reasonable and necessary is not required. Consequently, S.B. is not entitled to payment for the OCF-18s in dispute. As no benefits are payable, no interest is payable.

NEB

19S.B. sought payment for an NEB as a result of the accident. Section 12(1) of the Schedule sets out that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal established the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.² These principles focus on a comparison of an insured’s pre-and post-accident activities. In addition, Heath considers the activities that an insured identifies as most important.

20S.B. has not established through her submissions or evidence that she has engaged with the principles outlined in Heath. In fact, her submissions are silent on her pre-accident activities or how her engagement in those activities have changed as a result of the accident. Her submissions failed to identify activities she considers important, or how her impairments practically prevent her from continuously engaging in substantially all of her pre-accident activities, as required.

21As noted in paragraph 15, above, S.B. still drives, attends appointments, engages with her grandchild, cooks, cleans and is able to perform her personal care duties. I find this level of engagement falls well short of the “complete inability” standard required for NEB entitlement. S.B. has not pointed me to compelling evidence to establish that she has met the strict test for entitlement to an NEB. This is significant as I have already determined that S.B. has failed to demonstrate that she sustained anything beyond predominantly minor injuries as a result of the accident. Consequently, I find that S.B. has not established that she suffered a complete inability to carry on a normal life as a result of the accident and she is not entitled to payment for an NEB for the period in dispute.

CONCLUSION

22S.B. has not established that she sustained a complete inability to carry on a normal life as a result of the accident, therefore she is not entitled to an NEB. She has not demonstrated that her accident-related impairments warrant removal from the MIG or that the OCF-18s in dispute are reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”).