Release date: 08/30/2021
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:
Kamesha Marsh
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Sherzod Karimov, Counsel
For the Respondent:
Richard Campbell, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on September 17, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective on or after September 1, 2010 (the “Schedule”).1 The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference, however, were not able to resolve the issues in dispute. The matter proceeded to this written hearing.
PRELIMINARY ISSUE
3I have been asked to decide the following preliminary issue:
(i) Is the applicant precluded from claiming accident benefits pursuant to s. 61(2) of the Schedule because she is entitled to claim workplace safety benefits under the Workplace Safety and Insurance Act (“WSIA”), 1997?
SUBSTANTIVE ISSUES2
4If the answer to the above question is no, then I must decide the following issues:
(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 limit and in the Minor Injury Guideline (“MIG”)?
(ii) Is the applicant entitled to medical benefits recommended by Mackenzie Medical Rehabilitation Centre in the following treatment plans (OCF-18s) for physiotherapy:
a) $3,696.50 dated September 20, 2019;
b) $1,977.05 dated January 24, 2020; and
c) $1,384.70 dated March 6, 2020?
(iii) Is the applicant entitled to the medical benefits and cost of examination expenses recommended by 101 Assessments in the following OCF-18s:
a) $2,460.00 for a psychological assessment dated December 6, 2019;
b) $4,912.80 for psychological treatment dated May 20, 2020; and
c) $2,460.00 for a chronic pain assessment dated June 2, 2020?
(iv) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5After reviewing both parties’ submissions and all of the evidence, I find:
(i) The applicant is not precluded from claiming accident benefits pursuant to s.61(2) of the Schedule.
(ii) The applicant’s accident-related impairments fall within the MIG and are subject to the $3,500.00 cap on treatment.
(iii) The respondent’s denials of the OCF-18s complied with s. 38 (8) of the Schedule.
(iv) Since the MIG limit of $3,500.00 has been exhausted, the applicant is not entitled to any of the disputed OCF-18s or interest.
Is the applicant precluded from claiming accident benefits pursuant to the Schedule because she is entitled to claim workplace safety benefits under the WSIA?
BACKGROUND
6The applicant was injured in an automobile accident on September 17, 2019, when her vehicle was rear-ended while stopped at a traffic light causing her vehicle to rear-end the vehicle in front of hers. She was engaged in her employment as a Personal Support Worker (“PSW”) when the accident happened.
7A Workplace Injury Report dated September 19, 2019 completed by the applicant’s employer states “EE stated she does intend to file a claim with the driver at fault, the other driver was charged. EE planning to go through auto insurance claim.”
8On September 19, 2019 the applicant’s employer submitted an Employer’s Report of Injury Disease (Form 7) to the Workplace Safety and Insurance Board (“WSIB”) reporting that the applicant sustained an injury as a result of an automobile accident. The form states “the worker reported that she is going through auto insurance.”
9On September 23, 2019, the WSIB wrote to the applicant attaching an election form and outlining her options to either sue the third party and apply for accident benefits or claim WSIB benefits. The letter also explained to the applicant that if she did not return the form within three-months it would be assumed that she had chosen to opt out of receiving WSIB benefits. The applicant did not submit the election form and is deemed to have opted out of receiving WSIB benefits.
10On September 23, 2019, the applicant submitted an application for accident benefits (OCF-1) to the respondent.
11On March 4, 2020, counsel for the applicant wrote the WSIB indicating that the firm had been retained by the applicant in connection with various damages arising out of personal injuries sustained in the accident. The letter also stated, “this will confirm the applicant elected under s. 26-31 of the WSIA to proceed by way of tort claim against the at-fault driver.”
12On July 31, 2020, the Tribunal held a case conference and the respondent raised the preliminary issue challenging the applicant’s right to claim accident benefits under the Schedule.
13On August 28, 2020, the applicant filed a statement of claim with the court against the at-fault driver seeking various damages. Based upon the evidence before me the status of that proceeding is unknown.
ANALYSIS
Section 61
14Section 61(1) of the Schedule provides that insurers are not required to pay accident benefits to those who are entitled to claim workers’ compensation benefits under the WSIA. Section 61(2) provides a limited exception to the general rule in s. 61(1). That exception applies to injured workers who elect to seek damages in tort for their injuries, in which case they may also claim benefits under the Schedule provided that their election was not made primarily for the purpose of claiming accident benefits.
15The respondent argues that the applicant opted out of claiming WSIB benefits for the sole purpose of claiming accident benefits. It maintains that in assessing whether an election to commence a tort action was done for the sole purpose of claiming accident benefits, it is important to look at the chronology of events, the timing of when the tort action was commenced and the legitimacy of the tort action. It submits that I should draw an adverse inference based on the fact that the applicant filed her tort claim with the court shortly after it raised the preliminary issue at a case conference. In addition, it argues that the applicant has not actively pursued the tort action which supports its position that her motivation for commencing it was done solely for the purpose of claiming accident benefits.
16The applicant argues that she did not file a tort action for the sole purpose of claiming accident benefits because the other driver was at-fault and was charged by police following the accident. Further, she has been consistent in communicating her intent to issue a tort claim against the at-fault driver since the date of the accident which is reflected in the records. For the following reasons, I agree with the applicant and find that she is not precluded from claiming accident benefits under the Schedule.
17First, based upon the evidence before me I find that the applicant did not opt out of the WSIA for the sole purpose of claiming accident benefits. I find the evidence consistently supports that shortly after the accident the applicant expressed a clear intent to pursue a tort action against the at-fault driver. For example, as highlighted above it was documented in the Workplace Injury Report and Form 7 submitted to the WSIB in the first week post-accident. I disagree with the respondent that the applicant has to prove that the tort action is valid in this preliminary issue hearing. The damages available in tort claims and the legal threshold for accident benefits are different and there is no evidence before me that the tort claim is frivolous or is invalid.
18Second, I disagree with the respondent that the timing of when the applicant issued the statement of claim is suspect because she filed her claim with the court after it had raised the preliminary issue. The evidence supports that the applicant intended to file a tort action well in advance of the case conference. I do not draw an adverse inference by the fact that she issued the statement of claim one-year post-accident. I agree with the applicant’s position that a certain amount of time must pass post-accident to collect evidence in support of a claim and for a better understanding of the types of damages at stake. In addition, the applicant commenced her tort action within the limitation period provided for in the Rules of Civil Procedure.
19Finally, the respondent heavily relied on the decision of the Financial Services Commission of Ontario in Mahjourian v. TD Insurance3 in support of its position that the applicant is precluded from claiming accident benefits. It asserts that the facts in Mahjourian are identical to the present case because the insured filed an election after the insurer raised the preliminary issue. The arbitrator concluded that the insured was barred from receiving accident benefits because the election was made to avoid claiming WSIB benefits.
20I disagree with the respondent that the facts in that case are identical to the ones before me. I agree with the applicant that this decision is distinguishable because the insured person in Mahjourian was a school bus driver, and the accident did not involve an at-fault third-party driver. In addition, the insured person in Mahjourian issued her tort claim against her employer and the manufacturer of the bus beyond the two-year limitation period. Consequently, the arbitrator was not convinced that there was a bona fide intent to commence a tort action and concluded that the insured person did so for the sole purpose of claiming accident benefits.
21For all of the above reasons, the respondent has failed to persuade me that the applicant is precluded from claiming accident benefits because she did not have a bona fide intent to pursue a tort action. Since I have determined that the applicant is not precluded from claiming accident benefits, I must now address whether her impairments fit within the MIG and her entitlement to the other benefits in dispute.
Do the applicant’s impairments fit within the MIG?
22I find the applicant’s impairments fall within the MIG.
23Section 3 of the Schedule provides the following definition of a minor injury:
“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”
24Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident-related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that her impairments are not minor and not subject to the $3,500.00 cap. To date, the MIG limits have been exhausted.
25The applicant argues that her accident-related impairments do not fit within the MIG because she suffers from chronic pain, chronic pain syndrome, a mild traumatic brain injury and a psychological impairment. Further, she submits that her accident-related impairments remain unresolved and she requires further treatment. She relies on the clinical notes and records (“CNRs”) of Dr. Ingber, her family doctor, the chronic pain report of Dr. Karmy, chronic pain specialist dated August 24, 2020, and the psychological assessment of Lital Grinberg, psychological associate (supervised by Dr. Waxer, psychologist) dated May 24, 2020. She also maintains that the OCF-18s and disability certificate (“OCF-3”) support her position that her impairments are not minor. The applicant also asserts that she is entitled to the disputed treatment plans because the respondent’s notices denying the OCF-18s were deficient and did not comply with s.38(8) of the Schedule. Therefore, the respondent is prevented from taking the position that the MIG applies to the applicant’s claim and must pay for the treatment plans.
26The respondent submits that the applicant’s impairments fit within the MIG. It maintains that the CNRs and reports relied upon by the applicant do not support the impairments that she puts forth as the basis for her claim. It argues that the reports of Dr. Karmy and Ms. Grinberg are flawed as they were based on the applicant’s self reports and the diagnoses rendered are not supported by any objective medical evidence. Consequently, these reports should be given little weight. For the following reasons, I agree with the respondent and find the applicant sustained a minor injury.
Does the applicant have a pre-existing medical condition which would prevent her from achieving maximum medical recovery within the MIG limit?
27I do not find that the applicant is removed from the MIG as a result of a pre-existing medical condition.
28The case law supports that the existence of a pre-existing condition on its own will not automatically remove an individual from the MIG. It must be proven that the pre-existing condition will prevent maximum medical recovery within the MIG.4 In her submissions the applicant referenced an OCF-18 which noted that she had a pre-existing thyroid cyst a few months prior to the accident. Dr. Ingber’s pre-accident CNRs confirm this fact. The applicant argues that her pre-existing thyroid cyst removes her from the MIG.
29In her reply submissions, the applicant referred to a CNR of Dr. Ingber dated February 1, 2017 which notes that an ultra-sound revealed she had lipoma and hematoma in her left lower leg. The applicant also maintains this condition removes her from the MIG. The applicant has failed to meet her onus in proving how her pre-existing thyroid cyst or lipoma and hematoma from 2017 would prevent her from achieving maximum medical recovery within the MIG. What I found lacking from the applicant’s evidence was a medical opinion from a health practitioner explaining how these pre-accident conditions would prevent her from achieving maximum medical recovery within the MIG. For these reasons, I do not find that the applicant is removed from the MIG as a result of a pre-existing medical condition.
Does the applicant suffer from chronic pain, chronic pain syndrome or a mild traumatic brain injury, as a result of the accident that would remove her from the MIG?
30I do not find that the applicant suffers from chronic pain, chronic pain syndrome or a mild traumatic brain injury which would remove her from the MIG.
31Both parties submitted case law from this Tribunal that supports that if chronic pain or chronic pain syndrome is established by an insured, they are removed from the MIG. I agree with these decisions that if chronic pain or chronic pain syndrome is proven a claimant is removed from the MIG. The Tribunal’s case law has been inconsistent as far as the criteria applied by adjudicators in determining whether an individual suffers from chronic pain or chronic pain syndrome warranting removal from the MIG. The simpler test involves consideration of the following three factors5
a) The insured suffers from significant and constant pain – more than simple ongoing or recurrent, intermittent pain;
b) The pain has persisted well beyond the normal healing time for the injuries sustained; and
c) The individual’s pain causes functional impairment and disability, specifically with respect to functional abilities.
32I find the above criteria to be a useful guide in assessing whether an individual suffers from chronic pain or chronic pain syndrome. However, I do not find the applicant meets any of the above criteria for the following reasons.
33First, I do not find Dr. Ingber’s CNRs persuasive that the applicant has any ongoing physical impairment which would support a diagnosis of chronic pain, chronic pain syndrome or a mild traumatic brain injury. The applicant relied on three CNRs dated September 25, November 5 and 11, 2019 in support of her position. The CNR dated September 25, 2019, diagnoses the applicant with soft tissue injuries and notes that the applicant reported anxiety while driving. The CNR dated November 5, 2019, also notes soft tissue injuries and diagnoses the applicant with post-traumatic stress disorder and recommended that the applicant go for counselling. In the last CNR dated November 11, 2019, the family doctor sent the applicant for a referral for muscular strain. No evidence relating to that referral or the results were submitted as evidence for this hearing. In my view, three CNRs from less than two months post-accident do not support that the applicant suffers from ongoing chronic pain, chronic pain syndrome or a mild traumatic brain injury as a result of the accident that would remove her from the MIG.
34In her reply submissions, the applicant maintains that she continued to see her family doctor about her accident related complaints throughout 2020. Those records were not submitted for my consideration for this written hearing, which in my view was a critical mistake. Submissions are not evidence and consequently I have given these arguments no weight.
35Second, I do not find the impairments listed in the OCF-18s in dispute or the OCF-3 support that the applicant suffers from chronic pain, chronic pain syndrome or a mild traumatic brain injury as a result of the accident. With the exception of sleep disorders and anxiety (which I will discuss later) the impairments listed on the insurance forms note strain and sprain impairments which fit within the definition of the MIG. In addition, the applicant did not submit any CNRs or progress reports from the treating clinic to support that she suffers from ongoing chronic pain or chronic pain syndrome or has any ongoing functional impairment or disability. Therefore, I find the insurance forms on their own to be of little evidentiary value.
36Third, the applicant heavily relied on the chronic pain report of Dr. Karmy who diagnosed the applicant with “chronic post-traumatic headache; persisting symptoms following mild traumatic brain injury; chronic mechanical neck pain, possibly with left-sided radiculopathy symptoms; chronic mechanical bilateral shoulder pain, likely due to post-traumatic tendinopathy; chronic mechanical upper and mid back pain, likely originating from the thoracic discs and facet joints; chronic mechanical right toe pain; chronic pain syndrome; sleep disorder; and chronic adjustment disorder with anxiety and situational phobia.”
37I agree with the respondent that Dr. Karmy’s report is problematic for the following reasons:
a) He reviewed very few medical records in completing the assessment and the diagnoses are not supported by any objective medical evidence. For example, Dr. Karmy diagnoses the applicant with a mild traumatic brain injury, yet nowhere in the family doctor’s CNRs or decoded OHIP summary is the applicant diagnosed with an accident-related head injury or concussion6.
b) Dr. Karmy completed the assessment by videoconference but failed to explain his methodology for how he conducted a physical examination without seeing the applicant in person. Further, despite the fact that Dr. Karmy’s physical examination revealed minimal impairments he does not provide any rationale for how his physical examination supports the impairments he diagnoses or how the accident was the cause of same;
c) Dr. Karmy relied on the applicant’s self-reports about her functional limitations in her daily activities and employment in opining that the applicant is functionally limited in her daily activities and that her work performance has been compromised. He did not review an employment file and his opinion conflicts with the fact that the applicant returned to work full-time one-month post-accident and has continued to work. Of significance, the OCF-18 requesting the chronic pain assessment states that the applicant reported no functional limitations in completing her employment tasks. The applicant also reported to Ms. Grinberg that she was not functionally limited in her employment tasks. These inconsistencies challenge Dr. Karmy’s opinion;
d) Dr. Karmy diagnoses the applicant with psychological impairments. I agree with the respondent that this is outside the scope of his expertise as a chronic pain specialist and no tests were conducted by Dr. Karmy to support such a diagnosis;
e) Dr. Karmy also diagnoses cognitive issues. I also agree with the respondent that this is also outside the scope of his expertise and the diagnosis was also made in the absence of any cognitive tests; and
f) Dr. Karmy discusses the application of case law on chronic pain to the applicant’s case in the conclusion of his report. I agree with the respondent that this calls Dr. Karmy’s neutrality into question, as he comes across as an advocate verses a neutral assessor.
38For all of the above-reasons, I have placed little weight on Dr. Karmy’s report. The applicant submits that because the respondent failed to conduct an insurer examination (“IE”) that I should accept Dr. Karmy’s opinion and diagnoses. I reject this argument as there is no provision in the Schedule that makes an IE mandatory. Further, the onus is on the applicant to prove that her impairments do not fit within he MIG based on compelling medical evidence. I agree with the respondent that nothing in the sparse CNRs of her family doctor, insurance forms and decoded OHIP summary supports the diagnoses rendered by Dr. Karmy. In my view, it was unnecessary for the respondent to conduct an IE based on the evidence before me.
39The applicant has not met her onus in proving on a balance of probabilities that she suffers from chronic pain, chronic pain syndrome or a mild traumatic brain injury which would remove her from the MIG.
Did the applicant sustain a psychological impairment which would remove her from the MIG?
40I do not find that the applicant is removed from the MIG as a result of an accident-related psychological impairment.
41The parties submitted case law which supports that an accident-related psychological impairment, which is not merely sequela of soft tissue injuries takes an insured out of the MIG if it impacts an individual’s ability to function.7 I agree with these decisions that a psychological impairment which interferes with an individual’s function warrants removal from the MIG. However, based on the evidence before me the applicant has not proven that any psychological symptoms that she experienced post-accident interfered with her ability to function in her daily activities or employment.
42I do not find the two CNRs of Dr. Ingber from two months post-accident support that the applicant has any ongoing psychological impairment as a result of the accident. Although the CNRs note that the applicant complained of driving anxiety one-week post-accident and the second CNR diagnoses her with post traumatic stress disorder (PTSD) no further CNRs were submitted to support that the applicant has any ongoing psychological complaints. Further, nothing in the decoded OHIP summary supports that the applicant sustained a psychological impairment as a result of the accident.
43The OCF-18s and OCF-3 completed by a chiropractor note “sleep disorders and anxiety” as one of the applicant’s accident-related impairments. I agree with the respondent that it is outside the scope of a chiropractor’s expertise to diagnose these conditions. Further, the applicant did not submit the CNRs or records from the treating clinic which support that she sustained a psychological impairment.
44The applicant heavily relied on the psychological report completed by Ms. Grinberg. The applicant reported to Ms. Grinberg that post-accident she experienced interrupted sleep, cognitive issues, problems with mood and withdrawal from social activities. Ms. Grinberg administered the following psychological tests: Beck Depression Inventory 2 (BDT-TT) Beck Anxiety Inventory (BAI) Multidimensional Pain inventory (MPT) SCL- 90-R (Symptom Checklist - Revised) and WHODAS 36-item Questionnaire. The results of these tests indicated that the applicant had minimal levels of depression, moderate levels of anxiety and her scores on the SCL-90R and WHODAS were average or minimal. Ms. Grinberg diagnosed the applicant with the following accident-related psychological impairments:
a) Chronic adjustment disorder with anxiety;
b) Somatic symptom disorder with predominant pain, severe; and
c) Specific phobia: situational phobia.
45I have placed little weight on Ms. Grinberg’s diagnosis for the following reasons:
a) The assessment and diagnosis are based on the applicant’s self-reported symptoms and functional limitations and was not based on objective medical evidence. For example, Ms. Grinberg only reviewed insurance forms in completing her assessment. Therefore, I find it difficult to accept Ms. Grinberg’s finding that the accident was the cause of any psychological impairment;
b) The psychometric tests administered were also based on the applicant’s self-reported symptoms and did not have any validity measures. Further, I find the results of the psychometric tests inconsistent with the diagnosis. For example, the scores on the pain disability questionnaires were insignificant yet Ms. Grinberg diagnoses somatic symptom disorder, severe. Ms. Grinberg provided little rationale for how she arrived at any of her diagnoses or her opinion that the applicant’s psychological impairment is severe; and
c) Ms. Grinberg states that “the endorsement of psychological symptoms was consistent with the applicant’s clinical presentation.” However, her clinical observations of the applicant were all described as normal. I find this is another example of the inconsistencies throughout Ms. Grinberg’s assessment which do not align with her diagnosis.
46For the above reasons, I have placed little weight on Ms. Grinberg’s assessment. In her reply submissions, the applicant submitted invoices in support of the fact that she has been incurring psychological treatment. In my view, invoices do not prove that the applicant sustained a psychological impairment as a result of the accident, and I have given them little weight.
47The applicant has not met her onus in proving on a balance of probabilities that she suffers from a psychological impairment as a result of the accident that would remove her from the MIG.
Did the respondent’s notice denying the OCF-18s comply with s. 38(8) of the Schedule?
48The applicant is not entitled to payment of the treatment plans as I find that the respondent’s notice of denials complied with s.38(8) of the Schedule.
49Section 38(8) of the Schedule provides that within 10 business days of receiving a treatment plan an insurer shall give the insured person notice when it denies benefits that provide the medical reasons and other reasons why the insurer considers the benefits not to be reasonable and necessary. Section 38(9) provides that if the insurer believes that the MIG applies to the insured person's impairment, the notice under subsection (8) must so advise the insured person. Finally, s. 38(11) provides that if the insurer fails to give proper notice, the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and is liable to pay for the disputed benefit. An insurer is only liable to pay for a benefit until it gives an insured a proper notice of denial.
50It is well established that a notice of refusal to pay benefits must contain clear and straightforward language, must be directed towards an unsophisticated person, must clearly set out the dispute resolution process and the time limit to dispute the denial.8 Further, the notice must provide a valid medical and any other reason for the denial. If an insurer’s notice of denial to an insured does not satisfy these requirements within the timelines prescribed by the Schedule, the denial may be determined to be invalid and s. 38(11) of the Schedule is triggered.
51The applicant argues that the respondent failed to meet its procedural obligations in responding to a few of the treatment plans because the adjuster did not sign and date a few of the explanation of benefits (EOB) and she maintains she did not receive one of the denials. The respondent argues the opposite and that its notices complied with s.38(8) of the Schedule as they responded to the treatment plans within 10 business days. Further, it provided proper medical reasons for its denials which would be understood by an unsophisticated claimant and provided the time limits for disputing the denial. The respondent contends that a standard of perfection is not required.
52I disagree with the applicant that the respondent’s notices were non-compliant with s.38(8) of the Schedule. Based upon my review of the EOBs the respondent met its procedural obligations in responding to the treatment plans within 10 business days. This was confirmed by the HCAI notices submitted by the applicant and the title page of the EOBs included the date. Moreover, while it may be a good business practice for an adjuster to sign and date an EOB nothing in s. 38(8) of the Schedule makes this a mandatory requirement. Finally, under the Additional Comments section the EOBs provided proper medical reasons by advising the applicant that the Minor Injury Guideline applied to her impairments based on the medical records in its possession. The respondent also requested that the applicant submit additional medical records for its consideration. I find that the EOBs contained clear and straightforward language and was directed to an unsophisticated person. The EOBs also outlined the dispute resolution process and set out the relevant time limits that govern the resolution process.
53The applicant has failed to persuade me on a balance of probabilities that the respondent’s EOBs denying the various treatment plans were non-compliant with s. 38(8) of the Schedule.
ORDER
54For all of the above reasons, I find:
(i) The applicant is not precluded from claiming accident benefits pursuant to s.61(2) of the Schedule.
(ii) The applicant’s accident-related impairments fall within the MIG and are subject to the $3,500.00 cap on treatment.
(iii) The respondent’s denials of the OCF-18s complied with s. 38 (8) of the Schedule.
(iv) Since the MIG limit of $3,500.00 has been exhausted, the applicant is not entitled to any of the disputed OCF-18s or interest.
Date of Issue: August 30, 2021
________________________
Rebecca Hines, Adjudicator
Footnotes
- O.Reg. 34/10.
- In her reply submissions, the applicant withdrew the non-earner benefit as an issue in dispute.
- Mahjourian v. TD Insurance (2009) OFSCD No. 100 (“Mahjourian”).
- K.H. v. Unifund Assurance Company, 2018 CanLII 95586 (ON LAT), page 4.
- Z.L. v. Northbridge Personal Insurance Corporation, 2019 CanLII 58161 (ON LAT) at para 18. Other adjudicators (see LVD and Aviva Insurance Company of Canada, 2019, CanLII 43875 (ON LAT) apply the six factors set out in the American Medical Association’s Guides in assessing the evidence on chronic pain which include 1.) excessive dependence on others; 2.) withdrawal from social settings; 3.) failure to restore pre-injury function; 4.) secondary, physical deconditioning due to disuse; 5.) use of prescription drugs beyond the recommended duration; and 6.) the development of psychosocial sequelae. At least three out of six need to be present for a chronic pain diagnosis.
- The applicant submitted the Tribunal’s decision in P.S. v Wawanesa Mutual Insurance Company, 2020 CanLII 40359 in support of her position that a traumatic brain injury removes her from the MIG. I did not find this decision relevant because in that case the family doctor had diagnosed the insured with a concussion as a result of the accident after administering a test. By contrast, no test was administered to the applicant in this case.
- 16-000098 vs Aviva Insurance Company, 2016 CanLII 93136; 17-001265 v Waterloo Insurance, 2017 CanLII 87150; and 17-000640/AABS v TD Insurance Meloche Monnex, 2018 CanLII 13142.
- Smith v. Co-Operators General Insurance Company 2002 SCC 30, at para 14.```