Citation: Murad v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-004533/AABS - A

Licence Appeal Tribunal File Number: 21-004533/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:

Rita Murad

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Clive Forbes

APPEARANCES:

For the Applicant:

Maziar Mortezaei, Counsel

For the Respondent:

Kevin Ken Yip, Counsel

HEARD

By Way of Written Submission.

OVERVIEW

1Rita Murad, the applicant, was involved in an automobile accident on May 13, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent, Wawanesa Mutual Insurance Company, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are in dispute:

1. 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)?

2. If the applicant’s injuries are not considered to be predominantly minor:

i. Is the applicant entitled to $2,197.29 for psychological assessment recommended by Health-Pro Wellness (“HPW”) as set out in a treatment plan (“OCF-18”) denied on October 22, 2019?

ii. Is the applicant entitled to $2,697.06 for physiotherapy services recommended by HPW as set out in an OCF-18 denied on January 18, 2021?

iii. Is the applicant entitled to $3,566.29 for psychological services recommended by HPW as set out in an OCF-18 denied on March 24, 2021?

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

RESULT

3I find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. The applicant has not demonstrated that the treatment and assessment plans are reasonable and necessary, and no interest is payable.

The applicant has not demonstrated that her impairments are outside of s. 3 of the Schedule and therefore removal from the MIG is not warranted

4The applicant has not demonstrated that she suffers from chronic pain or a psychological impairment that warrants removal from the MIG.

5Section 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 in accordance with the MIG. 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.” 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 impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant on a balance of probabilities.

6The applicant submits that the following factors remove her from the MIG:

i. her chronic pain as a result of the accident; and

ii. her psychological impairments.

7To this end, she relies on her OCF-3 Disability Certificates, OCF-18 Treatment and Assessment Plans, the psychological report of Dr. Fahimeh Aghamohseni, psychologist, dated February 19, 2021, and the clinical notes and records (CNRs) from Dr. Angilletta, her family physician, and the CNRs from Health-Pro Wellness.

8The respondent submits that the applicant has not met her burden to prove that she suffers from more than minor injuries, that she has developed a chronic pain condition or that she sustained an actual psychological impairment from the accident. It relies on the s. 44 reports of Dr. Michael Hanna, general practitioner, and Dr. Alan Chan, psychologist, both dated May 18, 2021.

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

9I find the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

10In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain or chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects her day-to-day or work function. Unfortunately, the phrase “chronic pain” is not defined in the Schedule. In assessing the applicant’s claim of chronic pain, I have applied the following factors from paragraph 16 in A.A. v. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT):

i. Whether the applicant suffers severe and constant pain -- more than simple ongoing or recurrent, intermittent pain.

ii. Whether the applicant’s pain has persisted well beyond the normal healing times for the injuries sustained.

iii. Whether the pain is not a clinically associated sequela to minor injuries.

iv. Whether the applicant’s pain has caused functional impairment and disability. That is, whether it significantly disrupts or disables pre-accident activities of daily living.

11I do not agree with the applicant’s position that she now suffers from chronic pain because of the accident. The applicant relies on the OCF-3 dated May 23, 2019, by Dr. Aliya Salayea Salayeva, chiropractor, and the OCF-3 dated March 11, 2021, by Dr. Thao Bui, chiropractor, who listed the applicant’s injuries as radiculopathy, sprain and strain of cervical spine, thoracis spine, shoulder joint, lumbar joint, whiplash, headache, dizziness, nervousness and lower back pain. She also relies on Dr. Angilletta’s CNRs where she was diagnosed with left hip pain, left shoulder and elbow pain and left leg pain. She argues that Dr. Aghamohseni, in her report dated February 19, 2021, diagnosed her with somatic symptom disorder with predominant pain (severe). I find that the severity of the symptoms and functional limitations mentioned by Dr. Aghamohseni are not supported by the bulk of the medical and documentary evidence.

12I agree with the respondent that there is no evidence of chronic pain that could be considered more than mere sequelae of the soft tissue injuries and there is no evidence that such pain is accompanied by functional impairment, which is the requirement for removal from the MIG under this ground. The respondent relies on the s. 44 report of Dr. Hanna, dated May 18, 2021, who concluded that the applicant sustained uncomplicated sprain and strain injuries to the left shoulder as a result of the accident and there was no evidence of radiculopathy, myelopathy or neuropathy. In addition, the applicant’s left shoulder ultrasound, cervical spine X-ray and left shoulder X-ray dated August 16, 2019, revealed an unremarkable exam with minimal/mild degenerative changes.

13A review of the CNRs of the applicant’s family physician and other treating practitioners make no mention of chronic pain, do not offer a referral to a chronic pain specialist or suggest any negative impact on her daily activities. In fact, the applicant has returned to work following the accident and reported to Dr. Chan that she is managing her occupational duties. She also started an online architectural technologist program in September 2020 offered by George Brown College. As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain that would require her to be removed from the MIG.

14Given the above, I do not find that the accident contributed to a pain condition causing functional impairment that requires treatment beyond the confines of the MIG. As such, the applicant has failed to establish that she suffers from chronic pain as a result of the accident that warrants removal from the MIG.

The applicant has not suffered a psychological impairment as a result of the accident

15I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of a psychological impairment.

16I do not agree with the applicant’s assertion that her psychological impairments justify removal from the MIG. She relies on Dr. Aghamohseni’s report where she diagnosed the applicant with major depressive disorder, single episode, in the severe range with anxious distress and specific phobia, situational type, vehicular. Dr. Aghamohseni also indicated that the applicant reported feelings of anxiety and depression, sleep disturbances, fear and anxiety when traveling in a vehicle. It was reported also that the applicant scored 33 on the Beck Depression Inventory-II that places her in the range of moderate depression and scored 30 on the Beck Anxiety Inventory which is consistent with persons experiencing a severe level of anxiety. Dr. Aghamohseni also administered the Pain Patient Profile test which includes a validity index but did not provide the result in her report. The applicant also relies on the single mention of weight loss and anxiety in her family physician’s record dated August 23, 2019.

17However, a review of the applicant’s family physician’s records reveals that Dr. Angilletta did not indicate that the applicant’s weight loss and anxiety were as a result of the accident and no context was provided. Furthermore, the applicant reported to Dr. Chan that she had bariatric (gastric sleeve) surgery in September 2019 in Mexico which may explain her pre-surgery anxiety and her desirable weight loss as noted by Dr. Angilletta in her CNRs.

18Also, on the OCF-3s dated May 23, 2019, and March 11, 2021, that were submitted by chiropractors Dr. Salayea Salayeva and Dr. Thao Bui, respectively, mainly physical injuries were listed, and dizziness and nervousness were mentioned. Furthermore, it is outside the scope of practice of a chiropractor to make psychological diagnoses. In addition, I have not been directed to any other notations of psychological concerns from the applicant's family doctor nor other medical practitioners who may have treated the applicant on an ongoing basis in order to support the applicant's submission that she has a psychological injury that would take her out of the MIG.

19I agree with the respondent that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. In addition, Dr. Chan reported that the applicant denied having nightmares, flashbacks about the accident or thoughts that she could not get rid of. Dr. Chan also concluded that the applicant does not meet any DSM-5 diagnostic criteria for any psychological disorder. In my view, the opinion of Dr. Aghamohseni that the applicant was presenting with an array of psychological symptoms, without contemporaneous reporting in the medical documentation and with no evidence of psychological impairment or emotional distress, does not demonstrate that removal from the MIG is required.

20I find the applicant has not presented compelling evidence that she sustained a psychological impairment as a result of the accident. First, there is limited continuous or contemporaneous reference to any psychological or emotional symptoms in the CNRs of her family physician that would provide objective confirmation of her struggles. Second, I find the opinion of Dr. Aghamohseni that the applicant was presenting with an array of psychological symptoms is unsupported by the balance of the evidence. Third, I assign more weight to the report of Dr. Chan because I find it is consistent with the bulk of the medical and documentary evidence. Accordingly, for these reasons, I find the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG.

Are the treatment and assessment plans reasonable and necessary?

21I have determined that the applicant has not demonstrated that removal from the MIG is warranted. As the parties have agreed that only $200 remains of the MIG limit, and the applicant did not direct me to any portion of the treatment and assessment plans where the MIG balance should be applied, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, no interest is payable under s. 51.

ORDER

23The applicant has not demonstrated that removal from the MIG is warranted and that the treatment and assessment plans are reasonable and necessary.

24Given that there is no payment of benefits overdue, the applicant is not entitled to any interest pursuant to s. 51 of the Schedule.

25The application is dismissed.