Rashid v. Economical Insurance, 2023 CanLII 40085

Citation: Rashid v. Economical Insurance, 2023 ONLAT 20-013557/AABS

Licence Appeal Tribunal File Number: 20-013557/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:

Shazia Rashid

Applicant

and

Economical Insurance

Respondent

DECISION

VICE-CHAIR:

Neil Levine

APPEARANCES:

For the Applicant:

Shazia Rashid, Applicant

Clayton Allen, Paralegal

For the Respondent:

Economical Insurance

Suzanne Armstrong, Counsel

HEARD: In Writing

April 18, 2023

OVERVIEW

1The applicant, Shazia Rashid, was involved in an automobile accident on September 5, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 - including amendments effective June 1, 2016) (“Schedule”). The respondent, Economical Insurance, (“Economical”), categorized the applicant’s injuries as minor and denied the applicant’s benefits. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

Preliminary Issue

a. Is the applicant barred from proceeding to a hearing on this application as per s.55(1)2 of the Schedule because she failed to attend an insurer’s examination (IE), scheduled for Jan. 10, 2020, as required by s.44(9)iii of the Schedule?

Substantive Issue

If the above is not the case, then:

b. 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 in the Minor Injury Guideline (MIG)?

c. If the applicant’s injuries are not considered to be predominantly minor, then:

i. Is the applicant entitled to the cost of an examination in the amount of $2,200 for a psychology assessment as recommended by Rockman Psychology P.C., as per the OCF-18 submitted on July 16, 2020 and denied on September 25, 2020?

ii. Is Economical liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULTS

3The applicant is not barred from proceeding to a hearing on this application based on s.55(1)2 of the Schedule.

4The applicant’s accident-related injuries are considered minor and therefore are subject to treatment within the $3,500 limit and in the MIG. Since the limit has been exhausted, she is not entitled to any of the disputed benefits. Since no benefits are owed, she is not entitled to interest or an award.

ANALYSIS

PRELIMINARY ISSUE - APPLICANT NOT BARRED FROM PROCEEDING

5I find that the applicant is not barred from proceeding to a hearing on this application as per s. 55(1)2.

6The respondent argues that the applicant failed to attend an IE scheduled for January 10, 2020, as required by s. 44(9)iii of the Schedule. However, the respondent offers no proof that a notice of examination was sent to the applicant.

7The applicant argues that no notice was received. The applicant further argues that there is no proof the applicant or the applicant’s counsel received notice of an Insurer’s examination scheduled for January 10, 2020 on or before the date of December 13, 2019. In fact, there is evidence to suggest that if any notice was sent by the respondent, it was sent incorrectly to the applicant’s previous counsel (even though the applicant’s current counsel has represented her since March, 2019). Furthermore, the applicant attended a subsequent s. 44 Insurer’s Examination on September 10, 2020.

8I agree with the applicant’s submission on this issue. It is for these reasons that I find that the applicant is not barred from proceeding with her application.

SUBSTANTIVE ISSUE

THE APPLICANT FALLS WITHIN THE MINOR INJURY GUIDELINE

9I find the applicant’s injuries to be minor. There is no compelling evidence to support that she suffers from chronic pain or that any of her pre-existing injuries – especially her mild to severe depression – prevent her from recovering within the $3,500.00 MIG funding limit.

10Section 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.”

11Once the injuries are classified as minor, the injured person is limited to treatment in accordance with the MIG. An insured person 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.

12The applicant claims her injuries should not be defined as minor because of her pre-existing psychological conditions and chronic back pain. She submits that her pre-existing psychological condition of mild to severe depression, which was stable before the accident, was exacerbated and prevents her from recovering within the minor injury funding limits. In support of her position, she relies on:

a. Her family doctor’s records which document pre-existing back pain and pre-existing psychological condition.

b. Her treating psychiatrist’s records which also document a pre-existing condition of mild to severe depression.

13Economical argues that the applicant has not met her burden of proof. Economical relies on the same pre- and post-accident medical records as the applicant, in addition to a post-accident IE conducted by a psychologist, Dr. Janet Clewes. This report shows that the applicant had no worsening of her pre-accident mental health conditions.

14A pre-existing condition will not automatically remove an insured person from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

15Family physician Dr. Tasneem’s records note that as far back as December 10, 2016, the applicant was “down and her depression has not improved.” Subsequent clinical notes and records from Dr. Tasneem indicate the applicant’s depression was variable. At the first post-accident visit with Dr. Tasneem, the applicant did not inform him of the accident. Subsequent records with this physician do not show any mention of accident-related impairments.

16In addition, pre-accident visits with the applicant’s treating psychiatrist, Dr. Amin Muhammad, show that the applicant had a history of not attending psychological counselling recommended by Dr. Muhammad. Dr. Muhammad also showed concern about the applicant’s compliance with prescribed medications. Pre-accident complaints included anxiety, mood disturbances, headaches, irritability, and low frustration tolerance.

17These complaints were consistent post-accident, according to the records of doctors Tasneem and Muhammad. The only complaint that changed was memory loss reported once in October 2018 and once in November 2020.

18I find the s. 44 examination by Dr. Janet Clewes (Sept. 10, 2020) submitted by the respondent more compelling than the telephone interview conducted by psychotherapist Pamela Li (July 10, 2020). The report by Dr. Clewes noted that there was no indication of driving anxiety issues. On more than one occasion, when questioned by the examiner, the applicant herself denied any post-accident worsening of her mental health symptoms. In addition, the examiner concluded there were no accident-related DSM-5 conditions.

19Judging from this evidence, I find the applicant’s condition after the accident to be roughly the same as it was before the accident. There is little if any evidence showing that the accident worsened her psychological condition. I conclude that, there was no exacerbation of any pre-existing mental health condition.

20Next, the applicant failed to provide any compelling medical evidence suggesting that her pre-existing condition precludes recovery if she were kept within the confines of the MIG. None of the medical documents make any reference to this issue specifically.

21Finally, with respect to the applicant’s submission that she experiences chronic back pain, no evidence has been presented by the applicant in support of her claim. She has failed to show that she suffers from chronic pain related to the accident. While, she complained to her family doctor about back pain prior to the accident, in 2017 and 2018, there are no medical records presented that suggest back problems post-accident, after September 2018. Accordingly, I reject the applicant’s claim that she be removed from the MIG for chronic back pain.

ORDER

22The applicant’s accident-related injuries are considered minor. She is not entitled to the treatment plan claimed. Since no benefits are owed, she is not entitled to interest nor an award.

Released: May 1, 2023

__________________________

Neil Levine

Vice-Chair