Nahas v. Intact Insurance Company, 2023 CanLII 122929

Nahas v. Intact Insurance Company

Citation: Nahas v. Intact Insurance Company, 2023 ONLAT 21-011692/AABS

Licence Appeal Tribunal File Number: 21-011692/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:

Rafi Nahas

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Diana Verkhovets, Counsel

For the Respondent:

Maryam Younes, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Rafi Nahas (the “applicant”) was involved in an automobile accident on October 30, 2019, 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 Intact Insurance Company (the “respondent”), 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 section 3 of the Schedule and therefore subject to the Minor Injury Guideline (the “MIG”) and its $3,500.00 treatment limit?

ii. Is the applicant entitled to psychotherapy in the amount of $4,912.80, proposed by Ms. Lital Grinberg in a treatment plan (the “OCF-18”) submitted December 21, 2020, and denied January 6, 2021?

iii. Is the applicant entitled to a psychological assessment in the amount of $2,460.00, proposed by Ms. Lital Grinberg in an OCF-18 submitted October 22, 2020, and denied March 20, 2020?

iv. Is the applicant entitled to the treatments proposed by 101 Physio Scarborough, as follows:

a) $709.81 in an OCF-18 submitted February 20, 2020, and denied February 27, 2020;

b) $2,256.55 in an OCF-18 submitted April 5, 2021, and denied April 7, 2021; and

c) $425.62 in an OCF-18 submitted July 21, 2021, and denied that same day?

v. Is the applicant entitled to assessments proposed by 101 Assessments, as follows:

a) A cognitive assessment in the amount of $2,460.00, in an OCF-18 submitted December 21, 2020, and denied January 6, 2021;

b) A driving evaluation in the amount of $2,460.00, in an OCF-18 submitted January 21, 2021, and denied January 22, 2021;

c) A chronic pain assessment in the amount of $2,460.00, in an OCF-18 submitted December 21, 2020, and denied January 6, 2021; and

d) An orthopaedic assessment in the amount of $2,460.00, in an OCF-18 submitted August 9, 2021, and denied that same day?

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

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

RESULT

3The applicant remains in the MIG and is not entitled to the disputed OCF-18s. It follows that no award or interest are payable.

PROCEDURAL ISSUE

The respondent requests that certain evidence produced by the applicant be given less weight

4I find the respondent is not entitled to the relief it seeks.

5The respondent submits it did not receive some of the evidence relied upon by the applicant prior to service of the applicant’s written submissions on April 19, 2023. Specifically, the respondent points to clinical notes and records dated August 19, 2022, an OHIP summary dated January 4, 2023, and a prescription summary dated December 16, 2022. The respondent argues these documents should be given less weight because their last-minute disclosure is prejudicial to the respondent.

6The applicant did not offer a reply submission to address the respondent’s request.

7I am not convinced the submission of these contested documents is prejudicial to the respondent because it did not explain how its ability to make its case was harmed by the submission of these documents at the time the applicant’s submissions were served. I was not pointed to evidence that shows the respondent needed more time or sought to extend its submission deadline to respond to these disclosures. In fact, the respondent addresses the merits of this evidence in its submission. I am not convinced by the respondent’s arguments to diminish the weight of the applicant’s evidence, and therefore decline to make the order it seeks.

ANALYSIS

Applicability of the MIG

8I find the applicant has failed to demonstrate he should be removed from the MIG.

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.” The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal recovery of his accident-related minor injuries if he is 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.

10In this case, the applicant seeks to be removed from the MIG because of a pre-existing condition, chronic pain, and a psychological injury. The applicant’s submissions say he sustained accident-related psychological injuries that include diagnoses of somatic symptom disorder with predominant pain (severe), chronic adjustment disorder with mixed anxiety and depressed mood, and a situational phobia specific to vehicles. The applicant also says he sustained chronic pain syndrome as a result of the accident, and that he has pre-existing injuries that preclude maximal recovery under the MIG. The applicant relies on the clinical notes and opinions from Ms. Lital Grinberg (associate psychologist and psychotherapist), Dr. Jena Zakhary (family physician), and 101 Physio Medical Rehabilitation Centre.

11The respondent’s submissions argue the applicant’s injuries are predominantly minor and therefore subject to the MIG. The respondent relies on a series of section 44 insurer’s examinations (the “IEs) completed by Dr. David Mula (family physician) that determined the applicant sustained soft-tissue injuries which qualify as a minor injury. The respondent also points to an IE by Dr. Mansour Alvi (orthopaedic surgeon) that similarly concluded the applicant’s injuries were minor, soft-tissue varieties, and specifically mild myofascial strain to the cervical and lumbar spine with no neurological deficits. As well, the respondent relies on two IEs by Dr. Neil Weinberg (psychologist) that determined the applicant does not have an accident-related psychological impairment and is not experiencing a diagnosable psychological condition as a result of the accident.

The applicant did not sustain a psychological impairment owing to the accident

12I find there is insufficient evidence of psychological impairment that would warrant removal from the MIG.

13Psychological injuries, if established, may fall outside of the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments. To be removed from the MIG, the applicant must show he sustained a psychological impairment because of the accident.

14I am not convinced the applicant sustained a psychological impairment as a result of the accident. I preferred Dr. Weinberg’s reports to that of Ms. Grinberg for several reasons. First, I find Dr. Weinberg’s conclusions are more consistent with the evidence presented in this case. Second, Dr. Weinberg assessed the applicant twice over a six-month interval between August 6, 2020, and February 9, 2021, whereas Ms. Grinberg performed one assessment on October 22, 2020. Third, the applicant does not show me that Ms. Grinberg’s credentials as an associate psychologist and psychotherapist qualify her to offer psychological diagnoses.

15The applicant’s submissions do not point to persuasive, contemporaneous medical evidence that supports the findings in Ms. Grinberg’s assessment, or that conclusively show the applicant struggled with anxiety for more than three to six months following the accident as he claims. In fact, the only clear mention of psychological symptoms in the applicant’s submissions relates to a prescription summary entry for Cymbalta and Baclofen that the applicant says Dr. Zakhary prescribed almost three years after the accident to treat depression, trouble focusing and sleep disruption due to pain. But my review of this evidence did not convince me that this medication was prescribed for the reasons claimed by the applicant because no explanation for the prescription was provided in that record. The applicant also mentions issues with sleep initiation and maintenance, headaches, anxiety, stress, and flashbacks of the accident in the context of a psychological assessment that was recommended. But I gave this little weight because it was not clear to me who recommended this assessment, when the symptoms were reported, or whether the assessment is one and the same as Ms. Grinberg’s.

16In contrast, the respondent’s submissions show that Dr. Weinberg’s assessments were purposely conducted to determine if the applicant’s psychological impairments fall within the MIG. Dr. Weinberg reported that the applicant denied feeling depressed and the need for any psychological treatment in relation to the accident. I find this evidence is consistent with the apparent absence of any psychological complaints made to Dr. Zakhary by the applicant prior to Dr. Weinberg’s assessments. Dr. Weinberg’s evaluations—which included psychometric testing like Ms. Grinberg’s assessment—concluded the applicant is functioning effectively and does not have an accident-related psychological impairment, or a diagnosable psychological condition, as a result of the accident. I find this conclusion is better supported by the evidence put before me than the diagnoses offered by Ms. Grinberg.

17In conclusion, when I analyze the medical evidence on a balance of probabilities, I find the applicant has failed to persuade me that he suffers from “substantial” psychological impairment that is “significant and severe enough to exclude him from the MIG.” I therefore decline to remove the applicant from the MIG because of psychological impairment.

The applicant does not suffer chronic pain as a result of the accident

18I find the applicant has not demonstrated that accident-related chronic pain is causing impairments that warrant removal from the MIG.

19The Tribunal has consistently held that for chronic pain to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or it must be continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability. The applicant relies on the records of Dr. Zakhary to demonstrate he suffers from chronic pain syndrome. The applicant says this syndrome is supported by consistent and regular meetings with Dr. Zakhary about pain complaints in the applicant’s back, shoulder, and knee pain that persist well past three-to-six months post-accident. However, the applicant’s submissions do not point to medical evidence that supports functional impairment resulting from his pain. I am not pointed to physical examinations by Dr. Zakhary or other medical professionals that produced objective findings of pain-related impairment.

20The bilateral knee x-rays conducted on November 28, 2019, were not helpful because there is insufficient medical evidence of impairment owing to accident-related chronic pain caused by the diagnosed degenerative changes. The applicant’s submissions on his chiropractic treatment, physical therapy, and massage therapy at 101 Physio Medical Rehabilitation for knee, shoulder, and back pain offer little insight into whether the treatment addressed functional limitations owing to chronic pain. I find this evidence does not support impairment due to accident-related chronic pain.

21Dr. Zakhary’s reference to chronic back pain in his clinical record dated November 20, 2020, does not prove the applicant suffers from a chronic pain condition, such as chronic pain syndrome. While I accept the applicant’s pain has likely been persistent and ongoing since the accident, this alone is not sufficient to show the applicant’s pain is more than mere sequalae. As mentioned earlier, the applicant must show the pain is of such severity that it causes distress accompanied by a functional impairment or disability. The applicant has failed to do so, as his submissions do not point me to medical evidence of impairment or disability due to accident-related chronic pain.

22In conclusion, the applicant has not shown a clear diagnosis of chronic pain syndrome, and, on a balance of probabilities, has not established with medical evidence that he suffers chronic pain accompanied by functional impairment or disability. I therefore find the applicant has failed to prove he should be removed from the MIG because of chronic pain.

Pre-existing injuries do not preclude maximal recovery of accident-related minor injuries

23I find the applicant has not met his onus to prove his pre-existing conditions prevent maximal recovery of his accident-related mirror injuries under the MIG.

24Section 18(2) of the Schedule says an applicant may be removed from the MIG if there is compelling evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal recovery of accident-related minor injuries if kept within the confines of the MIG. The applicant must therefore provide compelling evidence that he suffered a pre-existing condition, as well as demonstrate this condition would make him unable to achieve maximal recovery of his accident injuries within the treatment limits of the MIG. I am not convinced the applicant has met the second part of this test.

25The applicant points to chronic neck strain and stiffness, right knee strain, low back pain, heel pain, and left wrist pain as pre-existing conditions documented by Dr. Zakhary in the decoded OHIP summary in evidence. His submissions say that “the doctor,” other treating facilities, and the medical records continue to recommend physical therapy and treatment beyond the MIG due to exacerbation of pre-existing conditions. I am not convinced this is compelling evidence because the applicant does not specify which doctor, treating facility or medical records provide this recommendation. The applicant does not pinpoint this treatment recommendation in evidence. Rather, the applicant points to the x-ray of his knee to prove that the degenerative changes and injuries from the accident will preclude him from maximal recovery of his accident injuries within the MIG limits. However, I could find no professional medical opinion on the applicant’s recovery expressed in the x-ray report.

26The respondent points to the IE report completed by Dr. Mula on September 14, 2020, which says there is no compelling evidence of a pre-existing medical condition that would prevent the applicant from recovering from his accident-related physical injuries if kept within the MIG. Dr. Alvi makes the same finding from a musculoskeletal perspective in his IE report dated September 14, 2021. I find these examinations provide persuasive evidence that weigh against the applicant’s claim because they offer corroborating medical insights derived from objective physical examinations conducted one year apart by qualified medical professionals.

27In conclusion, to be removed from the MIG under section 18(2) of the Schedule, there needs to be compelling evidence that the pre-existing condition will prevent maximal recovery of accident-related minor injuries. I find the applicant’s evidence falls short of compelling on a balance of probabilities. I therefore decline to remove the applicant from the MIG on this basis.

The disputed OCF-18s

28The applicant remains in the MIG, so an analysis of whether the OCF-18s in dispute are reasonable and necessary is not required. The respondent advises that $2,863.26 has been paid from the MIG limits, and that there is a further $80.00 approved, but not incurred, leaving a balance of $556.74 in the MIG. The applicant does not dispute this value.

29Section 40(8) of the Schedule provides that if it is determined the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary. Therefore, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to section 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with section 51 of the Schedule.

Award

30Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since there are no benefits payable in this case, the respondent is not liable to pay an award.

ORDER

31Section 40(8) of the Schedule applies. The application is otherwise dismissed.