Citation: Obid v. The Co-Operators Insurance Company, 2022 ONLAT 20-013130/AABS

Licence Appeal Tribunal File Number: 20-013130/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:

Hanaa Obid

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION

VICE-CHAIR:

Beverly Brooks

APPEARANCES:

For the Applicant:

Ramendeep Minhas, Counsel

For the Respondent:

Patrick Baker, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant, Hanaa Obid, was injured in an automobile accident on February 3, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2The applicant, who was denied certain benefits by the respondent, Co-operators Insurance Company, submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3The applicant has exhausted the monetary limit of $3,500.00 under the Minor Injury Guideline (“MIG”).

4The applicant claims that she had a pre-existing health condition prior to the accident that prevented her from attaining maximal recovery from the accident and/or she developed a chronic pain condition as well as psychological impairment and physical limitation injuries as a result of the accident. It should be noted that the applicant uses the terms “pre-existing medical condition” and “chronic pain condition” interchangeably i. e. the applicant does not differentiate between the two medical conditions in her submission. In its submission, the respondent notes this confusion created by the applicant in her submission.

5The onus is on the applicant to prove on a balance of probabilities that she suffered from a pre-existing medical condition that prevented her from attaining maximal recovery or that the accident caused her to develop chronic pain and/or a psychological impairment and/or functional limitation injuries, thereby, removing her from the MIG.

ISSUES

6The following issues are to be decided:

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 limit and the MIG.

ii. Is the applicant entitled to $2,460.00 for a psychological assessment proposed by Dr. Silvia Tenenbaum in a treatment plan (“OCF-18”)?

iii. Is the applicant entitled to $2,921.29 for physical rehabilitation services and assisted devices proposed in an OCF-18 by Dr. Coghlan?

iv. Is the applicant entitled to $2,987.40 for physical rehabilitation services proposed in an OCF-18 by Dr. Bill Nickols?

v. Is the applicant entitled to interest on any overdue payments of benefits?

vi. Is the applicant entitled to an award pursuant to s. 10 of Regulation 664?

ANALYSIS

The Minor Injury Guideline

7The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

8The applicant maintains that she suffers from a pre-existing medical condition, chronic pain, psychological impairments and physical limitations that remove her from the MIG.

9The applicant submits that medical evidence demonstrates that her injuries are substantial and that restricting her access to benefits through classifying her injuries as minor is inappropriate.¹

Pre-existing Medical Condition

10Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

11Section 18(2) of the Schedule states that if an injured person has compelling evidence that he or she has a pre-existing medical condition that was documented by a health practitioner before the accident and, if such a condition prevents the impaired person from achieving maximal recovery from the minor injury, the injured person is not subject to the limit under the MIG. Given such conditions, the injured person may be entitled to monetary benefits beyond the minor injury framework monetary cap if the injured person can provide evidence that they are entitled to such benefits.

12The applicant submits that her pre-existing medical condition removes her from the MIG. The applicant is claiming that she suffered from a pre-existing medical condition (headaches, whole back pain, shoulder pain, hand pain, hip/thigh/calf pain and knee pain, head aches, nausea and vomiting) because of a heavy machinery accident (Sept. 29, 2016). She maintains that she has suffered from these conditions three years post-accident and that these symptoms were so serious that she has to go the hospital to address them. The applicant’s submission states that her family doctor, Dr. A. Al-Hellawi, has reported that she experienced the same symptoms after the accident.

13The respondent emphasized that the applicant has failed to provide evidence of a pre-existing medical condition, although the respondent admits that her family doctor’s records show that she has suffered from nausea and vomiting over a long period of time. The respondent points to the attending physician’s clinical entry at the Scarborough General Hospital emergency room who said the applicant’s nausea was caused by her medication.³ The respondent submits that the applicant’s family doctor and hospital records do not indicate neck and back pain complaints after February 26, 2018 and points out that there were no records of complaints in 2019 or 2020. The final family doctor record that the applicant provided to the respondent was dated October 22, 2020. If the applicant had a serious pre-condition that was preventing her from maximal recovery, one would assume that the applicant would be seeing her doctor fairly frequently. The respondent states that the only evidence on which the applicant relies are the chiropractic OCF-18 and the Disability Certificate (“OCF-3”). The respondent maintains that the applicant has failed to meet her burden of proof with respect to pre-existing conditions. She has not shown that there was a previously documented diagnosis made with respect to her pre-existing condition. The applicant has also failed to provide medical evidence from a health care practitioner that she is unable to reach maximum recovery as a result of her pre-existing condition if she were to be subjected to the MIG. It should be kept in mind that it is not sufficient to argue that a pre-existing condition precludes recovery. The applicant must show that the pre-existing condition prevents her from reaching maximal recovery. In my view, the applicant has not shown that she cannot achieve maximal recovery because of her pre-existing condition.

14The applicant’s family doctor examined her psychological and physical symptoms, but not with the level of expertise that a physiatrist or psychologist has. When the applicant’s psychological issues were noted in a Psychiatric Assessment IE by Dr. Richard Finkel in a report dated Nov. 29, 2018. Dr. Finkel concluded that “there is no evidence of a pre-existing condition that would prevent Ms. Obid from achieving maximal recovery under the Minor Injury Guideline from a psychiatric perspective”.⁴

Chronic Pain

15The MIG does not define chronic pain. The only reference to chronic pain in the MIG can be found in Appendix D “Getting the Facts about Whiplash Brochure” under the section “Avoiding Chronic Pain”.⁵ This section recommends that whiplash sufferers not overestimate their physical damage, accept the advice of health care professionals and move on with their life. This statement infers that the legislation was not drafted with the intention of addressing the needs of chronic pain suffers. As there is no definition for chronic pain in the MIG, one must look to criteria defined by alternative sources.

16In other cases that have been decided by the Tribunal, including MVM v. Aviva⁶, the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) were used as criteria against which chronic pain should be assessed. According to the AMA Guides at least three of six criteria should be met to establish chronic pain syndrome. These criteria include:

i. the use of prescription drugs;

ii. excessive dependence on healthcare providers;

iii. secondary physical deconditioning due to disuse and fear-avoidance of physical activity due to pain;

iv. withdrawal from one’s social milieu, including work recreation and other social contacts;

v. failure to restore pre-injury functions after a period of disability such that physical capacity is insufficient to pursue work, family or recreational needs;

vi. and the development of psychosocial sequelae after the initial incident including anxiety, fear-avoidance, depression or non-organic illness behaviours.

17With respect to the AMA Guides, the applicant claims that she meets three of the six AMA criteria for assessing chronic pain. She has reported not getting pleasure from meeting with her friends as she feels she can no longer keep pace with them (criterion 4); she did not return to work because she is not able to stand for long periods of time (criterion 5); and she suffers from depression, short term memory, mood swings, sleeplessness, anxiety and suicidal ideation (criterion 6). The respondent asserts that the applicant does not meet any of the criteria: her prescribed medication was not renewed beyond February 2018 and she did not abuse her medication. The applicant is currently receiving chiropractic therapy to address her headaches, back pain, shoulder pain, hand pain, hip/thigh/calf pain and knee pain and doing so at her own expense but she is not on any heavy medication (only regular Tylenol).

18Given the information in the applicant’s submissions, there is not excessive dependence on health care providers, no evidence of physical deconditioning or fear/avoidance behaviour, no evidence of withdrawal from her social milieu and there is no evidence that she developed psychosocial sequela after the initial accident.

19In my view, the applicant has not developed a chronic pain syndrome as she is not dependent on heavy medication (criterion 1) as she is only taking Tylenol. She does not have excessive dependence on care givers (criterion 2) as she has no attendant care workers in her home. Although she may not feel as comfortable as she once did, she has not withdrawn from her social milieu or stopped seeing her friends (criterion 4). Moreover, the applicant provided no medical evidence of chronic pain.

Psychological Impairment

20In addition to chronic pain, the applicant submits that she suffers from psychological impairments and functional limitations as a result of the accident. The applicant is currently a full-time student but she maintains that she has experienced significant challenges in completing her schoolwork because of physical and psychological impairments. She has not returned to her part-time job since the accident because of the problems she has had keeping up with her schoolwork. She is encountering problems dealing with her family and has been arguing with her brother frequently since the accident which she claims is very unusual for them. In her submission, the applicant described herself as an easygoing person prior to the accident (Sept. 29, 2016). She is also experiencing sleeplessness, loss of appetite and driver anxiety.

21The applicant’s submission stated that her family physician, Dr. A. Al-Hellawi, did indicate that the applicant had a history of headaches, nausea and vomiting. Dr. Al-Hellawi also noted after the accident her pain symptoms had increased in frequency and intensity. With respect to psychological impairment, the applicant’s submission states that her family doctor has recorded stress, depression, short-temperedness, mood swings, sleeplessness, significant anxiety, depression and suicidal ideation since the accident (Sept. 29, 2016). It is difficult to know, however, since Dr. Al-Hellawi’s report⁷ which is attached to the applicant’s submission is mostly illegible. It should be kept in mind that a family physician such as Dr. Al-Hellawi does not have the expertise to diagnose psychological conditions. Dr. Hellawi did not refer the applicant to any heath care specialists such as psychologists or psychiatrists.

22The applicant’s psychological issues were noted in a Psychiatric Assessment Insurer’s Examination (“IE”) by Dr. Richard Finkel, psychiatrist, in a report dated Nov. 29, 2018. Dr. Finkel concluded that “While symptomatic, she is not felt to suffer formally from a diagnosable psychiatric disorder”⁸ The respondent identifies other reasons for the applicant’s mental and physical state such as a fall on Dec. 19, 2018 which resulted in her not being able to place any weight on her left foot and the discovery of an ovarian cyst on July 18, 2019, which the respondent claims could cause mental anguish. The respondent also notes that the family doctor’s record that is dated October 22, 2020, is almost three years post-accident. The respondent also submits that the applicant has failed to establish that she sustained a psychological impairment as a result of the accident as her doctor’s records do not indicate emotional or psychological stress. The respondent relies on the psychiatric IE report completed by Dr. R. Finkel, a psychiatrist who completed his assessment on November 15, 2018. In his report, Dr. Finkel stated that although the applicant expressed many concerns about her health, her finances and personal life, his conclusion was that the applicant did not suffer from a psychiatric disorder as a result of the accident.⁹

23The respondent also submits that the applicant has failed to establish that she sustained a psychological impairment as a result of the accident as her doctor’s records do not indicate emotional or psychological stress.

Physical Limitations

24The applicant’s physical impairments were assessed in the IE Physiatry Assessment Report of Dr. J. P. Sarco, Physiatrist, dated August 11, 2018. Dr. Sarco concluded that “Based on my physical examination, she has predominantly soft tissue findings with essentially a normal neurological examination and no musculoskeletal structural pathology on examination than soft tissue tenderness”.¹⁰ Dr. Sarco concludes that “I did not find any significant impairments related to the accident today”.¹¹

25The respondent maintains that the knee, leg, shoulder and neck pain of which the applicant complained during a physiatry IE with Dr. J. P. Sarco are not evidence of significant impairments.

Analysis Conclusion

26Given the positions of the applicant and the respondent outlined in their respective submissions, I am of the view that the applicant’s injuries do not fall outside of the MIG.

27The applicant has failed to provide sufficient evidence from a health care professional that she has been unable to attain maximal medical recovery because of her pre-existing condition.

28The applicant’s submission states that she experienced headaches, nausea and vomiting after the accident but her family doctor’s post-accident reports do not state that the accident caused these symptoms or refer to these symptoms as a chronic pain condition. Furthermore, the applicant never had a chronic pain assessment after the accident. Therefore, the applicant has failed to meet her onus of providing sufficient evidence of a chronic pain syndrome.

29The applicant has also not produced evidence to prove that she is suffering from psychological impairment and/or physical limitation injuries as a result of the accident. The applicant is not out of the MIG and, therefore, the applicant is not entitled to the benefits she is claiming, interest or an award.

30The applicant refers to her family doctor’s records when presenting evidence of chronic pain, psychological impairments and functional limitations, whereas, the respondent has had IEs conducted by a physiatrist and a psychiatrist. These reports have been prepared by health care specialists, are far more detailed than the reports of a family doctor and both reach the conclusion that the applicant’s injuries are still in the MIG. The applicant did not have any assessments conducted by specialists to determine if she was out of the MIG.

OCF-18s in Dispute

31Given the applicant has already reached the $3,500.00 MIG treatment limit, a determination of whether these treatment plans are reasonable and necessary is not required.

Interest

32As there are no benefits owing, interest is not payable pursuant to s. 51 of the Schedule.

Award

33Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. It should be kept in mind that an award has a high threshold with respect to evidence that an insurer has unreasonably withheld or delayed the payment of benefits. There is no evidence that the insurer engaged in such conduct.

34I have found that there is no payment of benefits owing, so the applicant is not entitled to an award.

CONCLUSION

35The application is dismissed and I find that:

i. The applicant’s injuries are minor as defined in s. 3 of the Schedule and, therefore, she is subject to the MIG which limits the cost of treatments to under $3,500;

ii. Given the $3500.00 treatment limit does apply since the applicant has been found not to be out of the MIG, the OCF-18s are not payable by the respondent;

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule;

iv. The applicant is not entitled to an award pursuant to s. 10 of Regulation 664.

Footnotes

1. 1Applicant’s Submission, page 4.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Respondent’s Submission, Scarborough General Hospital, Clinical Entry, February 29, 2018, page 22.
4. 4Respondent’s Submission, Psychiatry Assessment, Dr. Richard Finkel, November 29, 2018, page 8.
5. 5Pre-approved Framework Guideline for Whiplash Associated Disorder, Financial Services Commission of Ontario, July 2003, page 12.
6. 6MNM v. Aviva Ins. Co. , 2018 CanLII 98282 (LAT), at paras. 6 to 8.
7. 7Applicant’s Submission, Dr. Al-Hellawi’s Report, October 26, 2018, Tab G, Page 44.
8. 8Respondent’s Submission, Psychiatry Assessment, Dr. Richard Finkel, November 29, 2018, page 7.
9. 9Respondent’s Submission, Psychiatry Assessment, Dr. Richard Finkel, November 29, 2018, page 8.
10. 10Respondent’s Submission, Physiatry Assessment, Dr. Jean Pierre Sarco, August 11, 2018, page 9.
11. 11Respondent’s Submission, Physiatry Assessment, Dr. Jean Pierre Sarco, August 11, 2018, page 9.