21-001545/AABS

Licence Appeal Tribunal File Number: 21-001545/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:

Suraiya Hamdam

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR:

Ian Maedel

APPEARANCES:

For the Applicant:

Christine Boulos, Counsel

For the Respondent:

Serena Gohal, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Suraiya Hamdam, the applicant, was involved in an automobile accident on February 19, 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 the respondent, Wawanesa Mutual 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. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week for the period from February 19, 2019 to February 19, 2021?

ii. Is the applicant entitled to a medical benefit in the amount of $1,950.00 for an occupational therapy assessment proposed by New Age Specialized Assessments in a treatment plan/OCF-18 (“plan”) dated on April 4, 2019?

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

RESULT

3The applicant is not entitled to the NEB, an occupational therapy assessment in the amount of $1,950.00, nor interest.

ANALYSIS

The applicant is not entitled to a NEB

4The applicant has failed to establish she qualifies for an NEB in the amount of $185.00 per week for the period from February 19, 2019 to February 19, 2021.

5The test for entitlement to an NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident. Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

6The test for NEB involves a consideration of the applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the applicant to a NEB. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”), she must demonstrate that her life circumstances have changed and that the change is significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

7The applicant submits that her pre-existing fibromyalgia makes her more vulnerable to a negative post-accident outcome, and she has a demonstrated medical history of back pain and headaches. When combined with accident-related impairments including right shoulder, lower back, right leg pain and psychological symptoms, according to the applicant, she meets the NEB complete inability test. These impairments render her unable to perform caregiving or housekeeping tasks.

8The respondent submits there is insufficient evidence to substantiate a claim for NEB, as the applicant continued to perform the majority of her pre-accident activities of daily living following the accident. I agree with the respondent for the following reasons.

9The Disability Certificate (“OCF-3”) completed by K. Bains, physiotherapist, dated May 2, 2019, is uncompelling in the absence of the related clinical notes and records explaining the rationale for the diagnosis contained within it. The OCF-3 details the applicant’s accident-related injuries and indicates she suffered a complete inability to carry on a normal life due to the accident. Impairments included pain, functional limitations, and psychological factors, for an estimated duration of 9-12 weeks.

10The medical records tendered do not provide a basis to conclude the applicant suffers from a complete inability, pursuant to the NEB test. The Emergency Room Triage Record and x-rays from the date of the accident do include a diagnosis of cervical pain and note mild degenerative changes in the cervical vertebrae of the applicant’s neck. There is no mention of potential psychological impairments, and the applicant was discharged from hospital on the same date. No prescriptions were noted, nor were any specialist referrals. Furthermore, there is no discussion of any disability caused by the index accident.

11The clinical notes and records of the applicant’s family physician. Dr. A. Sediq, do not indicate that the applicant suffers from a functional or psychological impairment that precludes her from completing her pre-accident activities. The only link made between the accident and psychological symptoms was on March 1, 2019, where “MVA – PTSD” was noted, otherwise the notes are largely illegible. Despite prescriptions for Zoloft and Vimovo to treat depressive symptoms, no link was made between the accident and any psychological impairment. The records of Healthmax Physiotherapy Clinic from March 14, 2019 include a self-reported description of difficulties linked to activities of daily living due to pain, including difficulty with housekeeping, prolonged standing, and lifting. However, none of the self-reported disfunction was revealed in objective physical testing undertaken.

12The applicant relies solely on the psychological assessment conducted by Dr. L. Steiner, psychologist, and L. Crombie, psychometrist, dated April 15, 2019 to establish her entitlement to the NEB. Following a clinical interview and the administration of psychometric testing, Dr. Steiner diagnosed the applicant with post-traumatic stress disorder, major depressive disorder, and specific phobia, situational (driver-related). It was noted the applicant was unable to complete household chores, home maintenance tasks, and neglected many self-care tasks since the accident. The report concluded that her “current situation is a direct result of her motor vehicle accident on February 19, 2019, as she was reportedly functioning well prior to this accident”.

13Problematically, Dr. Steiner’s report fails to assess any change in the applicant’s functioning. His report does not provide any comparison with the applicant’s pre-accident activity levels as required by Heath. Instead, there are repeated general comments suggesting the applicant she was in “good health prior to the accident” or there were “significant changes with her usual activities and social functioning since the accident”. Without specific evidence of the frequency and time commitments devoted to these activities, this evidence does not meet the stringent NEB threshold required by the Schedule and Heath.

14The applicant failed to draw a causal link between her psychological impairments and the complete inability test as laid out in s. 12(1) of the Schedule. In light of Dr. Steiner’s failure to consider the applicant’s pre-accident functionality, I place little weight upon his conclusion that the applicant sustained significant changes since the accident which affected her ability to perform the normal tasks of her life.

15I prefer the IE reports, as they are consistent with the balance of the evidence tendered. These are the only expert reports provided that speak directly to whether the applicant meets the complete disability NEB threshold. I am aware that the IE assessors provided opinions with regard to the NEB threshold in paper review, or addendum reports, without additional in-person assessments, however, aside from Dr. Steiner’s report, the applicant has not provided additional expert reports, nor compelling medical evidence to contradict these opinions.

16The three Insurer’s Examination (“IE”) reports, all conclude that the applicant does not meet the NEB complete inability threshold. First, Dr. P. Tansey, Orthopaedic Surgeon, conducted a paper review following his initial in-person assessment of the applicant on May 1, 2019. In the initial assessment, he noted the applicant was very pain focused and self-limiting, but determined she exhibited no objective evidence of any accident-related musculoskeletal impairment. In the paper-review dated July 19, 2019, Dr. Tansey noted the applicant was independent with her personal care activities, and continued with shopping, meal preparation, dishwashing, laundry, and housework with some assistance from her children. He concluded that from an orthopaedic point of view, the applicant did not suffer an accident-related musculoskeletal impairment resulting in a complete inability to carry on substantially all of her daily activities.

17Second, the respondent relies on the In-Home Assessment Report completed by J. Perrier, occupational therapist, dated July 19, 2019. The applicant demonstrated inconsistent effort during the examination. The occupational therapist was therefore unable to provide an opinion on whether the applicant met the complete inability threshold due to this inconsistent effort/engagement. Instead, he deferred to the findings of Dr. Tansey in his report.

18Third, the respondent relies on the Psychological Assessment Report provided by Dr. R. Silverman, psychologist, dated May 29, 2019. Following a review of relevant documents, a clinical interview, and objective psychometric testing, he concluded the applicant was not a suitable candidate for psychotherapeutic intervention or mental health therapy. The psychometric testing revealed compelling evidence of marked embellishment, and symptoms of over-endorsement and negative response bias, undermining the credibility of the applicant’s self-reporting. In a paper review assessment report dated July 19, 2019, Dr. Silverman noted that from a strictly psychological perspective, his examination findings suggest the applicant does not suffer a complete inability to carry on substantially all of her normal activities, pursuant to the NEB test.

19In light of the evidence, I view Dr. Steiner’s report as an outlier, which failed to adequately address the NEB threshold. On the other hand, the IE reports demonstrate an inconsistent effort on the part of the applicant and her attempts to embellish her psychological and physical impairments. While the applicant may continue to suffer from some pain as sequalae from the sprain/strain injuries sustained in the accident, I find she has not provided compelling evidence that she suffered from any accident-related impairments that continuously prevented her from engaging in substantially all of the activities she was ordinarily engaged in prior to the accident during the post-accident period in dispute. It is well-settled that vague references to pre-accident activities are insufficient to establish the frequency and time commitments required for a baseline comparison between the applicant’s post-accident activities and pre-accident life circumstances.

20Overall, when I consider the totality of the evidence tendered with respect to the NEB, I am not persuaded the applicant has provided compelling evidence to satisfy her burden of proof.

The occupational therapy assessment is not reasonable or necessary

21I am not persuaded the occupational therapy assessment in the amount of $1,950.00 is reasonable and necessary pursuant to the Schedule.

22To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

23The primary focus of the assessment is to establish attendant care needs and recommendations. The assessment was recommended by physiotherapist, K. Bains, in the OCF-3 dated May 2, 2019. However, the findings in this OCF-3 are unsupported by compelling medical evidence.

24The applicant has failed to establish she suffers a psychological impairment that would otherwise render this assessment reasonable and necessary. I view Dr. Steiner’s report and diagnoses as unsupported by the rest of the medical evidence tendered. In my view, a solitary report of “MVA-PTSD” in her family physician’s records, or prescriptions without context, are insufficient to establish a pattern of accident-related psychological symptoms that would render this treatment plan reasonable and necessary. Conversely, I place significant weight upon the two IE reports tendered by Dr. Silverman, psychologist, who determined the applicant displayed signs of embellishment and negative response bias. Dr. Silverman concluded the applicant was not a suitable candidate for psychotherapeutic intervention, nor mental health therapy.

25The only expert evidence that addresses the applicant’s physical accident-related impairments is the IE report tendered by Dr. Tansey, which is unhelpful to the applicant because it concluded the applicant sustained uncomplicated myofascial strain-type injuries and demonstrated no objective evidence of any musculoskeletal impairment. Otherwise, the clinical notes and records of the family physician are illegible, and the Healthmax Physiotherapy records fail to establish a consistent pattern of accident-related pain affecting her activities of daily living.

26On the evidence tendered, I am not persuaded the occupational therapy assessment is reasonable and necessary pursuant to the Schedule.

The applicant is not entitled to interest

27Given there are no outstanding or overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

28The application is dismissed.

29The applicant is not entitled to the NEB, an occupational therapy assessment, nor interest.