Licence Appeal Tribunal File Number: 21-007716/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:
Nawal Wakim
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATORS:
Chloe Lester, and Mary Henein Thorn
APPEARANCES:
For the Applicant:
Arthur Semko, Counsel
For the Respondent:
Earl Murtha, Counsel
Interpreter:
Fanar Rafo, Arabic
Court Reporter:
Breanna Clancy
Heard via Video Conference:
February 2, 2023
OVERVIEW
1The applicant was a passenger in an automobile accident on February 28, 2020, when the car was rear-ended at a red light. As a result of that accident, she alleges that she exacerbated a pre-existing back injury, experienced new onset of neck pain, and developed a psychological disorder.
2The applicant claimed benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the Schedule) which were denied by the respondent on the basis that her injuries were minor and therefore subject to the Minor Injury Guideline (MIG). The applicant claims that her injuries should not be classified as minor and she should be entitled to more treatment. She also claims that her life changed dramatically, and therefore she should be entitled to non-earner benefits (NEB).
3Following the respondent’s denial of the benefits, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
ISSUES
4The issues in dispute for this hearing are:
a. 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 limit and in the Minor Injury Guideline (“MIG”)?
b. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from September 20, 2020, until February 28, 2022?
c. Is the applicant entitled to two physiotherapy treatment plans in the amount of $2,907.20 dated August 19, 2020, and in the amount of $1,142.25 dated July 29, 2020?
d. Is the applicant entitled to a psychological assessment treatment plan in the amount of $1,920.53 dated September 11, 2020?
e. Is the applicant entitled to interest on the overdue payment of benefits?
Results
5The applicant is in the MIG. The applicant has not demonstrated entitlement to a NEB. The applicant is not entitled to the disputed benefits or interest.
MOTION
6The applicant brought a motion at the end of her case to add a medical document as evidence for this hearing. The applicant argued that she had just received the medical document the night before the hearing and could not have disclosed it any earlier. The applicant argues that this document is relevant to the issues in dispute because it is a referral to a psychiatrist for the alleged injuries caused by the accident.
7Relying on the case conference order, the respondent argued that the parties were obligated to exchange documents being relied upon for the hearing at least 30 days in advance. The respondent argued that by disclosing this document at the hearing, it was prevented from properly defending its position with an addendum report.
8We find that the document is not relevant to the issues in dispute. There is no evidence to show that the psychiatrist referral was because of accident-related injuries. Given that s. 15(1) of the Statutory Powers Procedure Act refers to the admission of evidence that is relevant to the subject matter of the proceeding, the document’s lack of relevance is enough to dispose of the applicant’s request.
9Further, and in the alternative, we also find that it is procedurally unfair to admit this document at the end of her case. The applicant had every opportunity to raise this issue at the beginning of the hearing. We were provided with no explanation for why she requested the document be added at the end of her case. By allowing the addition of this medical document at this stage of the hearing, the respondent would have no opportunity to review or seek further expert opinions.
10We decline to admit this medical document into evidence.
The applicant is in the MIG and is not entitled to the treatment plans
11We find that the applicant is in the MIG.
12Section 3(1) of the Schedule defines “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 injury.” Section 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 minor injuries.
13Individuals may be entitled to greater funding limits above the $3,500.00 limit if they can establish that their accident-related injuries are not minor or, under section 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 funding limits.
14The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG.
15In all cases, the burden of proof lies with the applicant to demonstrate, on a balance of probabilities, that the injuries are not minor and that she is entitled to the treatment plans being recommended.
16The applicant argues that she should be out of the MIG because injuries from the accident have caused her psychological impairments and ongoing chronic pain. The applicant relies on the report of psychologist Dr. Mrahar, dated October 10, 2020, that diagnosed her with an adjustment disorder. She also relies on the clinical notes of Dr. El-Sayegh, her family doctor, and the hospital records following the accident.
17The respondent argues that the car accident was minor in nature, and the applicant suffered from soft tissue injuries. The respondent argues that since she has not produced her pre-accident records, any post-accident diagnosis should not be found credible. It argues that the applicant had a history of pre-existing physical impairments; without having those records, the applicant cannot prove that the accident worsened the injuries. The respondent also argues that the applicant has not received a diagnosis of chronic pain, contrary to her claims.
18We find that the applicant has not met her burden to be removed from the MIG. The applicant had been in Canada for only four months when the accident occurred. She produced pre-accident medical information going back three months prior to the accident. In the only clinical note before the accident, the applicant went to her family doctor for a prescription renewal. She advised her doctor about her history of hip arthroplasty and back surgery.
19Two weeks after the accident, the applicant saw her family doctor. There is no mention of the accident. She went to get a prescription renewal and reports “no complaints today”. Three months after the accident, the applicant has a virtual consultation with her doctor. In those records, there is no mention of the car accident, and she is concerned about a low-grade fever. The applicant saw her family doctor approximately nine times after the accident and does not report the car accident or that she has any physical pain or any psychological symptoms. All complaints were unrelated to the alleged injuries caused by the accident. It is not until 10 months later that she reports the accident to her family doctor and that she initially felt pain in her neck and back from the accident. It is not until 12 months after the accident that she reports to her family doctor that she is having difficulty sleeping. Within the first two years of the accident, it is only at those two visits that the applicant reported pain and some sleep issues because of the accident. It is not until two years after the accident that she reports having depressed moods. The clinical note makes no mention of the accident being a root cause of the applicant’s alleged impairments.
20The applicant argues that she had pre-existing injuries that were made worse by the accident and on that basis alone should be removed from the MIG. We find that since the applicant has not produced enough pre-accident clinical notes and records, it is difficult to ascertain her impairment level before the accident to meet the requirements of s. 18(2). The records indicate that she had a history of back pain resulting in surgery. Without the records, it is difficult to understand whether her pre-accident impairments were made worse by the accident. Section 18(2) requires the applicant to provide compelling evidence of her pre-existing medical condition and that the said condition would prevent her maximal recovery if she were kept in the confines of the MIG. On the balance of probabilities, we find that the applicant has not met her onus.
21The applicant argues that she has chronic pain and L5 lumbar radiculopathy from the accident. However, we agree with the respondent that there is no diagnosis of chronic pain from the accident. The applicant already had a history of low back pain from her surgery that fixated her T12 to L5 with screws. The applicant also only reports her physical pain once to her family doctor within the two years following the accident, despite her frequent visits. Since the pre-accident surgery placed screws in her lumbar spine, I cannot conclude that the radiculopathy was from the accident. Again, since we do not have pre-accident medical records, we do not have enough information to assess whether her back was asymptomatic before the accident. We find that the applicant does not have chronic pain or radiculopathy from the accident and remains in the MIG.
22The applicant argues that she suffers from psychological impairments from the accident. She relies on the diagnosis of an adjustment disorder by Dr. Mrahar, a psychologist. The respondent relies on its own independent expert report that was released within a few months following the applicants. The respondent’s report by Dr. Bacchiochi dated November 11, 2020, found that because the applicant did not exhibit any significant psychiatric symptoms, he did not diagnose her with any psychiatric disorders. The applicant testified that she began experiencing psychological impairments immediately following the accident. She testified that she feels anxious four days a week, has trouble sleeping, and no longer drives. We give more weight to the respondent’s psychiatric report because it is a better explanation of the applicant’s condition that is more in line with the family doctor’s records. We find that the applicant is not consistent with reporting her medical condition to treating practitioners or assessors. The applicant’s psychological report mentions similar complaints in line with her testimony, which is in contrast with her reports to her family doctor and to the respondent’s psychological assessor. Although the applicant testified that she was experiencing psychological impairments following the accident, she did not report any issues to her family doctor until 12 months after the accident. We would expect that if the applicant had psychiatric impairments the way she described it in her testimony, then she would have reported it sooner to her family doctor or a treating practitioner. We also do not have any treating practitioner notes to verify whether she made any other complaints. Since we do not have a fulsome pre-accident medical record, the applicant has not proven that she did not have any pre-existing psychiatric disorders other than her self-reports. On the balance of probabilities, we find that she is in the MIG and does not suffer from a psychiatric impairment from the accident.
23Based on the hospital records, the family doctor’s notes, and the initial disability certificate, we find the applicant suffers from strains and sprains and is in the MIG.
The applicant is not entitled to the treatment plans
24At this point, we are unclear if the applicant has exhausted her MIG limits.
25Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.
26The applicant argues that the physiotherapy treatment is reasonable and necessary to assist her with pain relief, which is a treatment goal. Since we do not have any treatment records, it is impossible to ascertain whether the applicant found any relief from her treatment or whether it was beneficial. She is not entitled to the physiotherapy treatment plans as she has not demonstrated that they are reasonable and necessary.
27The applicant claims that because of her psychological state of having anxiety and depression, it is reasonable and necessary to conduct an assessment to investigate her psychological complaints. The applicant claims she has been taking anti-depressant and sleep medication to treat her accident-related insomnia. The respondent argues that she has not proven a psychological assessment is warranted because of the very few psychological complaints she has made to her family doctor. The respondent argues that this is in line with the psychological report of Dr. Bacchiochi that she did not have impairments from the accident. Since the applicant was inconsistent in reporting psychological symptoms to her family doctor, we find that her symptoms were not persistent enough to warrant an investigation. On the balance of probabilities, we find that a psychological assessment is not reasonable or necessary.
The applicant is not entitled to a non-earner benefit
28We are not satisfied that the applicant suffers a complete inability to carry on a normal life.
29Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment because 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.
30While the Schedule does not define the phrase “substantially all”, the Court of Appeal has held that “substantially all” does not mean “all.’” The burden of proof in demonstrating that the applicant is prevented from engaging in most of their daily activities lies with the applicant.
31We find that the applicant is not entitled to a NEB because she can engage in most of her activities of daily living, just at a slower pace. Therefore, she does not meet the test for NEB.
32The applicant testified that her pre-accident life included activities such as shared housekeeping responsibilities, daily walks, visiting family and dancing occasionally.
33She argues post-accident that she can engage in some activities, but she cannot engage in most activities because of pain. She testified that she needs to take breaks while cleaning the house or cooking and her cousin comes to help her. She testified that she cannot walk as long as she did before and that if she goes to the store, she will have to lie down afterwards. She also has not gone dancing after the accident. Laundry takes her longer than before and her now husband helps her.
34The respondent submits that the applicant does not meet the non-earner benefits test. It claims that in many of the medical records she admits to completing most of her daily activities but at a slower pace or with assistance.
35We find the applicant has not demonstrated that she meets the test for NEB for two reasons. Firstly, we find above that she suffers from minor injuries, namely strains, and sprains. Therefore, her injuries are not severe enough that the applicant would be prevented from completing most of her activities of daily living. Secondly, even if the applicant is having difficulties, the difficulties she is experiencing do not meet the high bar of the NEB test. The applicant can do a significant amount of her activities of daily living, but to a lesser degree, at a slower pace, or with rest periods. The applicant has not demonstrated a substantial withdrawal from her pre-accident social activities, nor has there been an inability to restore her pre-accident functioning pertaining to her activities of daily living. Therefore, she is not continuously prevented from carrying on a normal life. She is not entitled to a NEB.
ORDER
36The applicant’s injuries were properly classified as minor, and she is subject to treatment within the MIG funding limits. She is not entitled to a NEB or any of the treatment plans in dispute. Since no benefits are owed, she is not entitled to interest. The application is dismissed.
Released: May 23, 2023
__________________________
Mary Henein Thorn
Adjudicator
__________________________
Chloe Lester
Vice-Chair