Citation: Sarmad v. Coseco Insurance Company, 2021 ONLAT 20-000758/AABS
Release date: 05/25/2021
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:
Amina Sarmad
Applicant
and
Coseco Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Emily Schatzker, Counsel
HEARD:
By way of written submissions
OVERVIEW
[ 1 ] Amina Sarmad was injured in an accident on February 3, 2016, and sought benefits from the respondent, Coseco, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule''). Amina Sarmad applied for medical benefits that Coseco denied because it determined that her injuries were predominantly minor and subject to the Minor Injury Guideline (“MIG”). Amina Sarmad disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
[ 2 ] The issues to be decided at the hearing are:
a. Are Amina Sarmad’s injuries predominantly minor injuries as defined in s.3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 limit in s.18(1) of the Schedule? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.
b. Is the medical benefit in the amount of $3,192.25 for psychological services recommended by Dr. Eugene Hewchuk of Imperial Medical Assessments in a treatment plan (OCF-18) dated May 28, 2018, denied on May 29, 2018, reasonable and necessary?
c. Is the cost of examination expense in the amount of $2,000.00 for a chronic pain assessment recommended by Dr. Igor Wilderman of Imperial Medical Assessments, in an OCF-18 dated February 12, 2018, denied on March 1, 2018, reasonable and necessary?
d. Is the cost of examination expense in the amount of $1,999.20 for a psychological assessment recommended by Dr. Eugene Hewchuk of Imperial Medical Assessments in an OCF-18 dated February 13, 2018, denied on February 26, 2018, reasonable and necessary?
e. Is the rehabilitation expense in the amount of $150.00 for Amina Sarmad’s transportation to medical appointments recommended by Dr. Eugene Hewchuk in an OCF-18 dated June 11, 2018, denied on June 26, 2018, reasonable and necessary?
f. Is Amina Sarmad entitled to interest on any overdue payment of benefits?
FINDING
[ 3 ] Amina Sarmad sustained predominantly minor injuries that can be treated within the MIG. The evidence shows that the limit has not yet been exhausted, therefore, Amina Sarmad is entitled to treatment up to the $3,500 limit pursuant to the protocol set out in the MIG.
DISCUSSION
New evidence
[ 4 ] Coseco submits that Amina Sarmad failed to comply with the Tribunal Order and entered new evidence that was not served on it prior to the production exchange deadline. Further, Coseco argues that as a result of the reliance on new evidence, Amina Sarmad adduced new evidence in the reply submissions, which is in violation of Rule 9.2 of the Tribunal’s Common Rules of Practice and Procedure (“the Rules”).
[ 5 ] The issue stems from Amina Sarmad’s claim that she received psychological treatment, however, Coseco alleges that no records of the treatment were provided to it, despite requests for productions. Coseco further alleges that in her reply submissions, Amina Sarmad included two prescriptions that were not previously disclosed. Coseco’s position is that, based on the documents that were produced, there is no mention of the prescriptions in the family physician records or the prescription summary.
[ 6 ] Coseco submits that Amina Sarmad failed to comply with the disclosure requirements pursuant to Rule 9.4 of the Rules and may not rely on the new evidence. Coseco does not argue that it is prejudiced by the new evidence, only that the Tribunal find that Amina Sarmad not be able to rely on the new evidence in her reply submissions.
[ 7 ] Upon review, I agree with Coseco that Amina Sarmad did rely on new evidence that was not provided in accordance with the Tribunal Order. Rule 9.2 of the Rules was designed to ensure that parties are fully aware of the case they have to meet and allow them to prepare accordingly. Failure to comply with Rule 9.2 results in the consequences set out in Rule 9.4. Rule 9.4 sets out that a party that fails to comply with any Rules or Orders regarding disclosure or inspection of documents or things, or lists of witnesses, that party may not rely on the document or thing as evidence, or call a witness to give evidence, without the consent of the Tribunal.
[ 8 ] Amina Sarmad agreed to the production deadline set out in the Tribunal Order. I am not directed to any evidence or explanation as to why the new evidence or other treatment records were not produced in accordance with the timeline set out in the Tribunal Order. Further, there is nothing before me to show that the requested documents or new evidence was not available prior to the production deadline. As such I have not considered the new evidence in this hearing. In any event, these documents would have made little difference as Amina Sarmad is not entitled to the psychological assessment.
BACKGROUND
[ 9 ] Amina Sarmad has a pre-existing history of anemia and migraines. She was involved in a prior accident approximately 10-12 years ago, requiring treatment for back pain. She claims that her injuries from the previous accident have resolved.
ANALYSIS
Applicability of the MIG
[ 10 ] The MIG sets out the framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) sets out the recovery limit for medical and rehabilitation benefits for predominantly minor injuries to $3,500. If Amina Sarmad can demonstrate that she has pre-existing conditions documented by a medical practitioner that prevents maximal medical recovery under the MIG, she may receive treatment outside of the limit. Applying Scarlett v. Belair Insurance, she must establish entitlement to coverage beyond the $3,500 limit on a balance of probabilities. I find the medical evidence shows that Amina Sarmad suffered predominantly minor injuries and has not demonstrated that removal from the MIG is required.
[ 11 ] Amina Sarmad submits that she suffered neck, back pain and migraines and psychological impairments described as anxiety, stress and insomnia as a result of the accident which supports treatment beyond the MIG limit. Amina Sarmad relies on various clinical notes and records, a social emotional assessment report, a psychological assessment report and diagnostic imaging reports as evidence to support that her impairments are not “minor injuries”. Amina Sarmad argues that her pre-existing injuries, accident-related physical injuries and psychological diagnosis of Post-Traumatic Disorder, Somatic Symptom Disorder with Predominant Pain and Specific Phobia (Driving and Passenger fear) warrants treatment beyond the MIG. Essentially, Amina Sarmad submits that she has not been able to return to her pre-accident status and continues to experience physical and psychological impacts as a result of the accident, which causes her an inability to carry on a normal life and engage in her activities of daily living. Amina Sarmad’s position is that the disputed OCF-18s are reasonable and necessary to treat her accident-related impairments.
[ 12 ] In its response, Coseco submits that Amina Sarmad suffered soft-tissue injuries as a result of the accident and as such, her injuries meet the definition of a “minor injury.” Coseco argues that Amina Sarmad has a limited medical history of visits to her family physician, Dr. Alam, that diagnostic imaging revealed no abnormalities and there is no Disability Certificate. It relies on the reports of its assessors: the first, a s. 44 report from physiatrist Dr. Ko who opined that Amina Sarmad suffered uncomplicated soft-tissue injuries and that there was no objective evidence of ongoing impairments; the second, a s. 44 report from psychologist Dr. Mackay, who concluded that there was no indication of a clinically significant accident-related psychological impairment and no treatment was required.
Physical injuries and chronic pain
[ 13 ] I find that Amina Sarmad’s post-accident physical injuries, documented in the clinical notes and records of Dr. Alam, meet the definition of “minor injury” as set out in the Schedule, as they are listed as sprain and strain types of injuries. Based on the medical evidence, I am not persuaded that Amina Sarmad’s physical injuries and subsequent pain complaints are severe enough to require treatment outside of the MIG limit. The diagnostic imaging reports were all negative and did not note any accident-related issues. Further, despite having pre-existing anemia and migraines, the evidence does not support that these conditions would prevent recovery under the MIG. While I am empathetic that she still has pain complaints that are accident related, I find that she has not demonstrated that recovery from her pain is prevented if she is kept within the MIG. Although the MIG limit is not exhausted, there are no OCF-18s submitted for physical treatment, which Amina Sarmad may be entitled to in order to treat her physical pain complaints. Of note, at a December 2018 visit, Dr. Alam advised Amina Sarmad that her “pain complaints were just post-accident back strain/whiplash.” Despite her reports, Amina Sarmad provided no medical opinion to rebut the finding of Dr. Ko that there was no evidence of any ongoing musculoskeletal impairment that requires further facility-based treatment.
[ 14 ] On the evidence, I agree with Coseco that Amina Sarmad has failed to adduce evidence that her physical injuries require treatment beyond the MIG or that her accident-related pain has resulted in functionally disabling chronic pain. There is no evidence that Amina Sarmad was diagnosed with chronic pain or chronic pain syndrome from a qualified medical professional to provide an opinion on chronic pain. Failure to provide a medical opinion or diagnosis of chronic pain or chronic pain syndrome is fatal to Amina Sarmad’s claim that she should be removed from the MIG on the basis that she suffers from chronic pain. Notably, her self-reporting to the s. 44 assessors also did not provide any evidence that she suffers from functionally disabling pain. She reported that she is still able to perform her activities of daily living, albeit at a slower pace, but she is still able to drive, care for her children, perform household duties and self-care. For these reasons, I prefer the evidence of Dr. Ko, as I found that Dr. Ko, as a physiatrist, has a more specialized background in the area of pain symptomatology, and would be better qualified to identify any significant causes of any accident-related pain complaints.
Psychological impairments
[ 15 ] Amina Sarmad claims that she suffered significant psychological impairments as a result of the accident. She relies on: a) the opinion from Dr. Hewchuk, that she suffers a substantial inability to carry on a normal life and to perform housekeeping and home maintenance tasks; and, b) the opinion from Mr. Pugen, psychometrist/social worker, that Amina Sarmad suffers from elevated stress levels and isolation, irritability, sleep problems, low energy, fatigue and decreased self-sufficiency justify a removal from the MIG.
[ 16 ] In order to be removed from the MIG based on psychological impairments, Amina Sarmad must show that she has an actual psychological impairment and not just symptomatology. A psychological diagnosis must establish the development of ongoing, substantive post-accident symptomatology or a clinically significant psychological impairment. I find that Amina Sarmad has not provided any corroborative evidence to sufficiently demonstrate that she suffered significant psychological impairments that would prevent maximal medical recovery if she remains in the MIG.
[ 17 ] Amina Sarmad relies on the report of Dr. Hewchuk, who diagnosed her with Post-Traumatic Stress Disorder, Somatic Symptom Disorder with Predominant Pain and Specific Phobia (Driving and Passenger Fear). In his report, in preparation of the OCF-18, Dr. Hewchuk recommends psychotherapy, counselling sessions, relaxation therapy, cognitive-behavioural therapy and a driving anxiety deconditioning program. Mr. Pugen also recommends psychosocial and psychological treatment and an assessment. In response, Coseco relies on the psychological report from Dr. Mackay, who opined that Amina Sarmad did not report any symptoms consistent with post-traumatic stress disorder or with a specific phobia. Dr. Mackay concluded that there was no indication of any clinically significant accident-related psychological impairment.
[ 18 ] I also prefer the evidence of Dr. Mackay, as I found it was more in line with the evidence around any psychological complaints and Amina Sarmad’s self-reporting to both Dr. Alam. Despite the reports of Dr. Hewchuk and Mr. Pugen, the evidence from Dr. Alam does not support that Amina Sarmad suffered substantial psychological accident-related impairment. Upon review of the clinical records, her family situation and personal life appear to be the cause of long-term psychological concerns, which Amina Sarmad reported had resolved by January 2020.
[ 19 ] Amina Sarmad has failed to meet her burden on a balance of probabilities to establish that removal from the MIG is warranted as a result of accident-related psychological impairment.
Are the OCF-18s reasonable and necessary?
[ 20 ] Having found that Amina Sarmad’s injuries are properly within the MIG and that there are no treatment plans before me for physical treatment, an analysis of whether the disputed OCF-18s are reasonable and necessary pursuant to s. 15 of the Schedule is unnecessary.
[ 21 ] Despite this, as the MIG limit is not exhausted, Amina Sarmad may be able to seek further physical treatment for her accident-related impairment, should she decide to. As none of the disputed benefits are payable, no interest is payable under s. 51.
CONCLUSION
[ 22 ] Amina Sarmad suffered predominantly minor injuries that are treatable under the MIG limit. The disputed treatment plans are not reasonable and necessary.
Released: May 25, 2021
Derek Grant, Adjudicator