Citation: Dankha v. Wawanesa Insurance Company, 2023 ONLAT 21-012526/AABS

Licence Appeal Tribunal File Number: 21-012526/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:

Nuha Dankha

Applicant

and

Wawanesa Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Maziar Mortezaei, Counsel

For the Respondent:

Symone Marlowe, Counsel

HEARD:

By way of written submissions

1Nuha Dankha, the applicant, was involved in an automobile accident on January 5, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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 Minor Injury Guideline limit?

ii. Is the applicant entitled to $3,262.40 for physiotherapy services, proposed by Downsview Healthcare in a treatment plan (“OCF-18”) submitted on May 22, 2020?

iii. Is the applicant entitled to $1,670.81 for an attendant care assessment, proposed by Downsview Healthcare in an OCF-18 submitted on August 25, 2020?

iv. Is the applicant entitled to $2,000.00 for a psychological examination, proposed by Downsview Healthcare in an OCF-18 submitted on October 13, 2020?

v. Is the applicant entitled to $3,784.82 for psychological services, proposed by Downsview Healthcare in an OCF-18 submitted on March 23, 2021?

vi. Is the applicant entitled to $2,547.20 for physiotherapy services, proposed by Downsview Healthcare in an OCF-18 submitted on August 12, 2021?

vii. Is the applicant entitled to $1,000.00 for OCF-3 and OCF-18 completion fees submitted on May 18, 2020?

viii. Is the applicant entitled to $400.00 for OCF-18 completion fees submitted on September 16, 2021?

ix. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 5, 2018 and on going?

x. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. The applicant’s injuries fall outside of the MIG due to her chronic pain;

ii. The applicant is entitled to the following OCF-18s, with interest:

a. An OCF-18 for physiotherapy services in the amount of $3,262.40, submitted on May 22, 2020;

b. An OCF-18 for a psychological examination in the amount of $2,000.00, submitted on October 13, 2020;

c. An OCF-18 for psychological services in the amount of $3,784.82 submitted on March 23, 2021;

d. An OCF-18 for physiotherapy services in the amount of $2,547.20, submitted on August 12, 2021;

iii. The applicant is not entitled to the following:

a. An OCF-18 for an attendant care assessment in the amount of $1,670.81, submitted on August 25, 2020;

b. Payment of $1,000.00 for OCF-3 and OCF-18 completion fees submitted on May 18, 2020 or $400.00 for OCF-18 completion fees submitted on September 16, 2021;

iv. The applicant is not entitled to a non-earner benefit; and

v. The applicant is not entitled to an award.

PROCEDURAL ISSUES

4In her submissions, the applicant included a new issue in dispute, which was not listed in the case conference report and order dated October 13, 2022, an OCF-18 for $2,175.91 for a second psychological assessment, submitted on September 16, 2021. She requests that this issue be heard at this written hearing. I deny the applicant’s request to include a new issue in dispute at this late stage.

5Although in her submissions the applicant stated that this issue was to be added “on consent”, no evidence of the respondent’s consent to this addition was provided. The applicant emailed the Tribunal contemporaneously with filing her written submissions on May 31, 2023 to request that the new issue be considered as part of the written hearing. By way of email dated June 1, 2023, the Case Management Officer informed the applicant that a Notice of Motion would have to be filed to request the addition of a new issue. The applicant does not direct me to any evidence that such a Notice of Motion was filed, or that a motion was heard on this issue.

6Further, no evidence was submitted by the applicant to explain why this issue was being raised for the first time in her written submissions and what steps had been taken to bring this issue to the respondent’s attention. Given the late stage in the proceedings, the potential prejudice to the respondent and the fact that the applicant did not follow the procedural steps outlined by the Tribunal to add a new issue in dispute, I deny the applicant’s request to include the OCF-18 in dispute.

ANALYSIS

Minor Injury Guideline

7Section 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. 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.”

8An 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.

The applicant has established chronic pain warranting removal from the MIG

9I find that the applicant has established on a balance of probabilities that she suffers from chronic pain, with functional impairment, warranting removal from the MIG. The medical record establishes that in the years after the accident, the applicant persistently reported chronic neck, back and right arm pain and headaches. The clinical notes and records (“CNRs”) of her family physician Dr. Rubina Malik indicate that soon after the accident, the applicant began to report neck, head, back and right arm pain. Dr. Malik continued to diagnose the applicant with chronic neck and back pain, chronic headaches and bilateral arm pain, in numerous CNR entries throughout 2018, 2019 and 2020.

10The applicant was consistently prescribed pain medication for her chronic pain. Although the respondent points to the fact that a number of these prescriptions were not filled, I note that the applicant had tried a number of non-narcotic medications, with little success. In a CNR entry dated June 3, 2020, Dr. Malik noted the chronic neck, upper back and right arm pain secondary to the subject accident and stated that the applicant has tried Cymbalta, Lyrica and Meloxicam, but had either experienced side effects or it did not help. Dr. Malik had also expressed concern about the applicant’s use of Tylenol 3. In a CNR entry dated September 11, 2019, the applicant’s family physician noted that the applicant had been taking six to seven Tylenol 3’s per day. She was advised that this was addictive and not “the right way to treat pain”. In a September 2019 prescription refill for Tylenol 3, Dr. Malik cautioned, “I do not want her to take more than the prescribed dose.”

11The medical evidence also establishes that the applicant suffered from functional impairment, due to her chronic pain. In the initial OCF-3 prepared by Dr. Malik, it was noted that due to accident-related pain, the applicant suffered from a substantial inability to engage in caregiving activities and housekeeping tasks. Although there are reports in Dr. Malik’s CNRs of the applicant doing the housework and caring for the children, it is also noted that the applicant’s husband was unable to assist due to his own chronic pain. Dr. Ghattas, chiropractor, noted in a report dated October 20, 2018, that the applicant suffered from extreme fatigue due to inability to sleep due to pain, which impacted her ability to care for her family and maintain her household.

12In a psychiatric report dated May 27, 2019, Dr. Kumar noted the applicant’s accident-related pain complaints, which have impacted her ability to do much of the cooking, cleaning and laundry. Dr. Kumar noted that she cannot do much of the work at home, and relies on her sister-in-law’s assistance. Further, in a psychological assessment report dated January 2, 2021, Dr. Jacqueline Brunshaw also noted the applicant’s sleep disturbances due to pain, limitations in her ability to complete housekeeping tasks and difficulty in caring for the children. The applicant described her depressive feelings and attributed them to her constant pain, and ensuing limitations.

13As such, I find that the applicant has led sufficient evidence to establish accident-related chronic pain, with functional impairment, warranting removal from the MIG.

14Since the applicant has been removed from the MIG for chronic pain, she is entitled to payment for the requested treatment plans if she can prove that the treatment plans are reasonable and necessary.

15Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

16The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost to achieve these goals is proportional to the benefit.

OCF-18s for physiotherapy services are reasonable and necessary

17The applicant submitted two OCF-18s on May 22, 2020 and August 12, 2021 for a combination of physiotherapy, chiropractic, and massage treatment. The stated goals included pain reduction, increase in strength and range of motion, reduction of headaches and return to activities of normal living. The respondent denied both of these plans in full.

18I agree with the applicant that the proposed physical therapy treatment is reasonable and necessary. The applicant’s accident-related pain complaints are well-documented throughout the medical record. The applicant reported to Dr. Malik and Dr. Brunshaw that she found physiotherapy treatment to be helpful for pain reduction. Although the respondent submits that Dr. Malik did not recommend physiotherapy after January 2018, I do not find that this is supported by the medical record. Dr. Malik recommended physiotherapy and massage therapy on February 12, 2018, and November 26, 2018. Further, in a CNR entry dated June 3, 2020, Dr. Malik noted that the applicant’s chronic neck and arm pain was “worse since she was unable to do PT”. The plan of care specified in the CNR entry included attending physiotherapy.

19As such, I find that the applicant has met her onus to prove that the proposed physiotherapy treatment is reasonable and necessary.

OCF-18s for a psychological assessment and psychological services are reasonable and necessary

20The applicant submitted an OCF-18 on October 13, 2020 for a psychological assessment, and an OCF-18 on March 23, 2021 for sixteen sessions of psychological treatment. She submits that the proposed treatment plans are reasonable and necessary, since as a result of the accident, she has sustained psychological impairments, including anxiety and depression.

21The respondent disputes that the proposed assessment and treatment are reasonable and necessary. It argues that the applicant’s psychological conditions were not caused by the subject accident, and that the CNRs of Dr. Malik clearly establish that her anxiety was caused by other stressors, such as: missing her family, her Canadian citizenship exam, stress at home as her husband was unable to help due to disabilities, and having an autistic child.

22I find that the applicant has led sufficient evidence to establish that the proposed psychological assessment and treatment are reasonable and necessary to assess and address her accident-related psychological symptoms.

23Although I agree with the respondent that the CNRs of Dr. Malik indicate that a number of additional stressors contributed to the applicant’s anxiety and depression, I do not agree with the respondent that the subject accident was never referenced as a cause of her psychological conditions. Rather, I find that the applicant has established that the subject accident was a cause of her psychological conditions. The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that she would not have suffered the injuries “but for” the accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

24The medical record establishes that in addition to the other stressors, the applicant consistently reported accident-related psychological symptoms. In a CNR entry dated May 7, 2018, Dr. Malik noted “depressed mood sec to the chronic neck and upper back pain”. The applicant’s chiropractor, Dr. Ghattas, reported to Dr. Malik in a letter dated October 20, 2018, that the applicant suffered from extreme fatigue as she was unable to sleep at night due to pain, which affected her home life, ability to focus and concentration, causing her increased anxiety. Dr. Ghattas recommended a clinical psychological evaluation.

25In the psychiatric consultation report of Dr. Kumar dated May 27, 2019, Dr. Kumar diagnosed the applicant with possible major depression and physical pain problems. Dr. Kumar linked the depression to the applicant’s pain complaints, stating that she was sad as she could not do much of the work at home. Finally, Dr. Brunshaw in her s. 25 psychological assessment report, diagnosed the applicant with accident-related adjustment disorder with anxiety, major depressive disorder and specific phobia (driving, passenger and pedestrian). I further note that I have not been provided with any evidence that the applicant had reported psychological symptoms or sought treatment prior to the subject accident.

26The respondent argues that Dr. Brunshaw’s findings are not supported by the medical evidence. I disagree and find that the medical record supports the applicant’s position that she has sustained psychological impairments as a result of the accident, necessitating the proposed psychological assessment and treatment.

OCF-18 for attendant care assessment is not reasonable and necessary

27I agree with the respondent that the applicant has not established that the proposed attendant care assessment is reasonable and necessary. The applicant has consistently reported that she is independent in her self-care and personal tasks. Although she has reported some limitations in her ability to engage in some housekeeping and child-care tasks, the majority of reports indicate that she has been able to engage in the majority of her pre-accident tasks without assistance, despite pain reports.

28As such, I find that the applicant has not demonstrated that the OCF-18 for an attendant care assessment is reasonable and necessary.

Costs of OCF-3 and OCF-18 completion fees are not reasonable and necessary

29The applicant has not provided any particulars of these completion fees, other than providing a copy of an outstanding account, which included entries for OCF-3 and OCF-18 completion. The respondent disputes the fees, arguing that additional OCF-3s had not been requested by the respondent two and a half and three and a half years post-accident.

30The applicant has not provided any submissions on this issue, or why the additional OCF-3s were reasonable and necessary. Without any evidence or particulars as to the completion costs, I agree with the respondent that the applicant has not met her onus to prove that the completion fees are reasonable and necessary.

Non-earner benefits (“NEB”)

31I find that the applicant has failed to prove on a balance of probabilities that she suffers from a complete inability to carry on a normal life.

32Section 12(1) provides 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 set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

33Although I acknowledge that the applicant suffers from chronic pain and psychological impairments as a result of the accident, the medical record does not establish that her accident-related injuries continuously prevented her from engaging in substantially all of her pre-accident activities. The initial OCF-3 was prepared by Dr. Malik, and did not specify that the applicant suffered a complete inability to carry on a normal life. I agree with the respondent that the applicant did not submit an OCF-3 supporting a complete inability to carry on a normal life, until more than two years post-accident, after the period of entitlement to NEBs expired.

34Moreover, the applicant consistently reported to her medical providers and assessors that she was still completing the majority of her activities of daily living. In her submissions, the applicant references reports that her home life was “affected”, that she suffered from anxiety when completing her ADLs, or that she was restricted in completing some of her housekeeping tasks. However, while the applicant has reported some limitations, she has not established that her impairments continuously prevented her from engaging in substantially all of the activities she had engaged in prior to the accident.

35Although the applicant points to Dr. Brunshaw’s January 2021 report which described the applicant’s inability to engage in many pre-accident activities, I note that this report was provided a year after her entitlement to NEBs would have ended. Moreover, I note that it is inconsistent with the majority of reports in the two years post-accident, which indicate that the applicant suffered from only some restrictions in her ability to engage in pre-accident activities.

36On this basis, I find that the applicant has not established entitlement to an NEB for the period in dispute.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18s for physiotherapy services, a psychological assessment and psychological treatment.

Award

38The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant submits that she is entitled to an award, because the respondent maintained denials and ignored credible medical reasons, thereby unreasonably withholding payments for reasonable and necessary treatment and assessments.

39Although I have found that the applicant is removed from the MIG and a number of treatment plans are reasonable and necessary, I do not find that the respondent’s conduct rose to a manner which was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. While I acknowledge that an insurer has an ongoing obligation to assess a claim, I note the respondent’s submissions that the applicant did not provide the CNRs of her family physician until December 2021, almost four years post-accident. Although the respondent denied the applicant’s claim, there is no evidence before me to conclude that it did so unreasonably. The applicant is not entitled to an award.

ORDER

40I find that: