21-006819/AABS

Licence Appeal Tribunal File Number: 21-006819/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:

Nargues Qayame

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Sofia Ahmad

APPEARANCES:

For the Applicant: Ardi Deti, Counsel

For the Respondent: Amanda H. Magda, Counsel

HEARD: By Way of Written Submission

OVERVIEW

1Nargues Qayame, the applicant, was involved in an automobile accident on December 5, 2018, 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, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “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 $1,995.32 for a psychological assessment recommended by Pilowsky Psychology Professional Corporation as set out in a treatment plan (“OCF-18”) denied on May 12, 2021?

   ii. Is the applicant entitled to $2,635.40 for chiropractic services recommended by MacKenzie Medical Rehabilitation Centre as set out in an OCF-18 denied on November 26, 2020?

   iii. Is the applicant entitled to $1,417.70 for chiropractic services recommended by MacKenzie Medical Rehabilitation Centre as set out in an OCF-18 denied on March 19, 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.

ANALYSIS

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 a pre-existing condition 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 pre-existing condition; and

ii. her psychological impairments.

7To this end, she relies on her OCF-18 Treatment and Assessment Plans, the psychological report of Dr. Judith Pilowsky, psychologist, dated April 17, 2021, and the clinical notes and records (CNRs) from Dr Hayam El-Kateb, her family physician.

8The respondent submits that the applicant has not met her burden to prove that she suffers from more than minor injuries, that she has a pre-existing condition or that she sustained an actual psychological impairment from the accident.

The applicant does not suffer from a pre-existing condition

9I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG because of a pre-existing condition.

10The applicant’s only documented pre-existing medical conditions are lumbar strain and right shoulder strain with restricted mobility which started in 2015.

11The medical records do not make any mention of the applicant having ongoing complaints, symptoms or complications because of these issues pre-and post accident.

12I agree with the respondent that there is no evidence of these issues having any impact on the applicant’s recovery from the accident.

13The applicant has initial complaints of pain following the accident, but there are large gaps in the applicant’s visits to her family physician.

14The applicant first visits her family physician after the accident on December 6, 2018, complaining of physical issues. Then, there is a gap of approximately 7 months until her next visit on August 28, 2019, with no accident-related complaints at that visit. Her next visits are related to her pregnancy and there is no mention of back pain until October 26, 2020.

15The applicant visits her family physician, Dr. Hayam El-Kateb 9 times for pregnancy and fertility issues. She does not reference any back or neck pain until October 26, 2020 and does not mention any anxiety or back/pain issues again.

16The applicant saw Dr. Lesley Corrin, Neurologist on March 27, 2021. The Neurologist conducted an electrophysiological study of the applicant and it was normal, and the MRI completed on her cervical spine had normal findings.

17The applicant did not submit further treatment plans or seek medical intervention for accident-related injuries until March 5, 2021, which is 821 days post accident. The clinical notes and records provided do not have any indication that the applicant has suffered from an exacerbation of pre-existing anxiety related to fertility issues or neck/back pain that would require treatment outside of the MIG.

18From a psychological perspective, the applicant has not provided any medical records to make any mention of any psychological treatment or that she was medically managing any psychological issues in the year before the accident or because of the subject accident.

19I agree with the respondent that, based on the totality of the evidence, the applicant’s injuries fall within the Minor Injury Guideline.

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

20I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG because of a psychological impairment.

21The applicant relies on Dr. Judith Pilowsky’s report of April 17, 2021. She states that the applicant experiences depressive and anxiety symptoms but does not diagnose her with a DSM-5 diagnostic psychological disorder.

22I give less weight to the opinion of Dr. Judith Pilowsky that the applicant was presenting with an array of psychological symptoms, because there is a lack of contemporaneous reporting in the medical documentation and no evidence of psychological impairment or emotional distress. Dr. Pilowsky’s opinion is at odds with the notes of the applicant’s family physician, Dr. Hayam El-Kateb, whose records do not support the applicant’s assertion of ongoing accident-related psychological complaints. Rather, I assign more weight to the reports of Dr. El-Kateb because I find it is consistent with the bulk of the medical and documentary evidence.

23I therefore do not find that the applicant has met her burden of proving an accident-related psychological impairment. Accordingly, I agree with the respondent that, based on the totality of the evidence, the applicant’s injuries fall within the Minor Injury Guideline.

Are the treatments and assessment plan reasonable and necessary?

24I have determined that the applicant has not demonstrated that removal from the MIG is warranted. As such, an analysis of whether the treatments and assessment plans in dispute are reasonable and necessary is not required.

Interest

25Interest 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

26The applicant has not demonstrated that removal from the MIG is warranted and that the treatments and assessment plan are reasonable and necessary.

27Given that there is no payment of benefits overdue, the applicant is not entitled to any interest pursuant to s. 51 of the Schedule.

28The application is dismissed.