Licence Appeal Tribunal File Number: 20-003488/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:

Leila Abdullahi

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Deborah Neilson

APPEARANCES:

For the Applicant:

Leila Abdullahi, Applicant Andrew P Suboch, Counsel

For the Respondent:

Emily Schatzker, Counsel

HEARD: In Writing

June 20, 2023

OVERVIEW

1Leila Abdullahi, the applicant, was involved in an automobile accident on February 4, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, The Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant claims entitlement to non-earner benefits (“NEBs”), physiotherapy services, and the cost of chronic pain and psychological assessments. The respondent denied the applicant’s claims for physiotherapy and cost of assessments because it determined that all of the applicant’s injuries fit the definition of “minor injury” under s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act. (“MIG”). The applicant submits that she has chronic pain, a closed head injury and psychological injuries as a result of the accident that take her out the MIG. The respondent submits that the injuries alleged by the applicant either pre-date or post-date the accident.

3If the applicant is correct, then I must address the issue of whether the medical treatment and the assessments claimed are reasonable and necessary. If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on the cost of assessments and medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether the claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 policy limit for minor injuries has been essentially exhausted.

4Regardless of whether the MIG applies, I must determine whether the applicant is entitled to NEBs.

ISSUES

5The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore already consumed up to the $3,500.00 limit and in the MIG?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 4, 2018 to February 3, 2020?

iii. Is the applicant entitled to $199.99 ($1,299.99 less $1,100.00 approved) for physiotherapy services from Malton Spine Clinic & Chronic Pain Centre proposed in a treatment plan/OCF-18 (“plan”) dated June 6, 2018?

iv. Is the applicant entitled to $3,490.60 for physiotherapy services from Malton Spine Clinic & Chronic Pain Centre proposed in a treatment plan dated August 15, 2018?

v. Is the applicant entitled to $2,883.20 for physiotherapy services from Malton Spine Clinic & Chronic Pain Centre proposed in a treatment plan dated March 14, 2018?

vi. Is the applicant entitled to $2,200.00 for a chronic pain assessment at Community Health and Counselling Services Inc. proposed in a treatment plan dated September 13, 2020?

vii. Is the applicant entitled to $2,179.22 for a psychological assessment, at Community Health and Counselling Services Inc. proposed in a treatment plan dated January 6, 2020?

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

RESULT

6The application is dismissed. The applicant has failed to satisfy her onus that she sustained an injury that would take her out of the MIG or that she has a pre-existing condition that excludes her from the MIG. As she is in the MIG and the MIG policy limits have been exhausted, she is not entitled to the treatment and cost of assessments claimed. She is not entitled to NEBs. As no benefits are due, no interest is payable.

ANALYSIS

The applicant’s medical background is relevant

7At the time of the accident the applicant was 20 years old and trying to obtain her high school equivalency. According to the Humber River Hospital records, her pre-accident medical history is relevant for the following reasons:

i. April 21, 2016, she was assaulted in the head and stomach. She advised of depression and suicidal thoughts. A history of depression was recorded;

ii. April 22, 2016, she reported that she receives social work support in school and gets depressed a lot since her father’s death. She has regular cognitive behavioural therapy and supportive counselling through Turning Point Youth Services;

iii. September 15, 2016, she sustained a nondisplaced fracture of the right fibular head (knee) after rolling down a hill. She advised of a history of chronic right knee pain;

iv. October 27, 2017, she was assaulted, suffering bruising to her right hand and left knee, chipped upper tooth and was discharged with a mental health appointment;

v. January 15, 2018, she was assaulted and lost consciousness. She was released from the hospital with a diagnosis of concussion and a sprained right ankle.

8The applicant’s family physician, Dr. Ghanim Abdelsalam, recorded on May 4, 2019 that the applicant sustained orbital bruising from a fall on January 18, 2018. The applicant underwent anger management counselling as a child.

The applicant is not out of the MIG

9Section 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 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.

10An insured 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 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.

11The applicant submits that she sustained a concussion and has chronic pain as a result of her accident injuries that is severe enough to remove her from the MIG. She also submits that she has a psychological overlay that, when combined with her chronic pain, takes her of the MIG. The respondent submits that there is no evidence she sustained a concussion as a result of the accident and that any psychological or chronic pain issues she has pre-date the accident.

There is no evidence of a diagnosis of concussion from the accident

12The applicant relies on the report of Sathis Kumar Srinivasan, a psychometrist supervised by Dr. Kenneth Keeling, psychologist, dated January 6, 2020 and the report of Dr. Lenus Louis, general practitioner, and Adib Ali Ashraf, chiropractor, dated September 13, 2020. Despite filing 877 pages of documents with the Tribunal, the applicant did not rely on any other evidence in support of her submissions. She did not refer to any other documents by tab and page number as ordered at paragraph 10 of the Tribunal’s order dated January 26, 2021.

13According to what the applicant told Mr. Srinivasan and Mr. Ashraf, she was a passenger in a single vehicle accident in which the car landed on its roof. She was taken by ambulance to the Belleville hospital but left before being seen by a physician due to the wait times. She reported that she saw her family physician, Dr. Abdelsalam, a couple of days later and he allegedly diagnosed her with a concussion and referred her to physiotherapy. However, the applicant has failed to identify any evidence to support her submission that she was diagnosed with a concussion from the accident.

14The only evidence of a concussion diagnosis presented to me was the applicant’s May 21, 2018 slip and fall in her bathtub and the January 15, 2018 assault. She was released from the hospital on both occasions with a diagnosis of concussion or head injury. There is nothing in Dr. Abdelsalam’s clinical notes and records about a concussion arising from the accident. In fact, there is no record of the applicant seeing anyone for her accident injuries until March 14, 2018 when she saw Dr. Abdelsalam. At that time, she complained of back pain with no radiation, pain in her hip and either her jaw or cheekbone. Dr. Abdelsalam noted the applicant had halos around her eyes, but did not diagnose the applicant with a head injury or concussion.

15It is not clear what the applicant’s cheekbone pain and halos around her eyes recorded on March 14, 2018 were from. The applicant described being asleep when the accident happened and waking up in the vehicle when it was upside down. She stated the airbags went off on impact and that she lost consciousness. However, she did not describe being struck in the face by an airbag or hitting her head in the accident. Further, it is not clear when she lost consciousness given that she was asleep when the impact happened. Accordingly, there is not enough evidence to indicate she was struck in either the face or head in the accident such that she sustained a concussion. For these reasons the applicant has failed to prove on a balance of probabilities that she sustained a concussion in the accident that takes her out of the MIG.

The applicant has not established she sustained a psychological impairment as a result of the accident

16The applicant relies on Mr. Srivinasan’s diagnosis of adjustment-like disorder and somatic symptom disorder and submits that these diagnosis take her out of the MIG. The respondent , The respondent submits that little to no weight should be given to Mr. Srinivasan’s report; claiming that the applicant failed to accurately report her medical history, or Mr. Srinivasan simply ignored her reports as he reported that the applicant went off on tangents. I agree. Nor did Mr. Srinivasan address the applicant’s considerable alcohol use and depressive challenges, or her interpersonal conflicts involving a history of assaults. The applicant was admitted to the Humber River Hospital on November 3, 2018 after calling the police about being assaulted. By December 10, 2018, Dr. Abdelsalam reported that she was no longer suicidal. No mention of the accident was made in any of these notes and records.

17Given that the applicant did not disclose her pre-accident and post-accident medical history to Mr. Srinivasan, the cause of the applicant’s psychological complaints is questionable. No validity scales were reported as being contained in any of the psychometric testing administered by Mr. Srinivasan. Given all the of the assaults the applicant experienced plus her falls, and given the scarcity of any complaints as a result of the accident in her medical records compared to the other health issues the applicant was facing, I am unable to place any weight on Mr. Srinivasan’s and Dr. Keeling’s opinion on the cause of the applicant’s psychological problems. Mr. Srinivasan’s diagnosis carries no weight because it is either based on the applicant’s subjective report without question, which is unreliable because the applicant did not disclose her medical history when asked, or Mr. Srinivasan ignored the applicant’s medical history when rendering his opinion.

18For these reasons, the applicant has not satisfied her onus to show that, on a balance of probabilities, she sustained a psychological impairment as a result of the accident that takes her out of the MIG.

The applicant has not established she has chronic pain as a result of the accident

19Dr. Louis diagnosed the applicant with chronic pain disorder and a number of other diagnoses pertaining to soft tissue injury of the left shoulder and knee, post-concussion syndrome, phobia in vehicle, chronic insomnia, depression and anxiety, chronic post-traumatic headache. He did not state that any of the diagnoses were caused by the accident.

20I am unable to give any weight to Dr. Louis’ diagnosis of chronic pain or his psychological diagnosis for the following reasons. Neither Dr. Louis nor Dr. Ashraf reviewed any medical records other than Mr. Srinivasan’s report. The applicant did not advise Dr. Louis or Dr. Ashraf of her orbital bruising from the fall on January 18, 2018 for which she was prescribed drops on May 4, 2019 or her assault on January 15, 2018. Nor did she disclose her injuries from the slip and fall of May 21, 2018. Pain can only be measured by a person’s subjective report. This means their report must be reliable for a diagnosis of chronic pain to be made. The applicant’s failure to disclose her pre-accident and post accident medical history to the Dr. Louis or Dr. Ashraf means that she is an unreliable historian. Accordingly, any opinion that is based on her subjective report is also unreliable.

21I am also unable to give any weight to Dr. Louis’ opinion given that he did not review any medical records and, as a result, incorrectly believed the applicant was diagnosed with a concussion. The applicant complained to Dr. Louis that she had headaches, left shoulder pain, and left knee pain, none of which were previously reported. In fact, the first record of a headache was when the applicant slipped and fell on May 21, 2018.

22I also note that the applicant’s pain complaints from the accident are sparse. She complained of back pain and right knee pain when she saw Dr. R.J.F. Saplys, orthopaedic surgeon, for a s.44 insurer’s examination (“IE”) on June 20, 2018. When she saw Dr. John Townley, orthopaedic surgeon, at the fracture clinic at the Humber River Hospital on May 28, 2018, the applicant only had complaints of left hip pain that had started the day before and her right ankle sprain was resolving. Given that she advised her hip pain only started the day before, I find that her hip pain from the accident had resolved. However, she denied any pain complaints and refused pain management when she was admitted to the Humber River Hospital on June 30, 2018. This implies that all of her pain complaints from the accident had resolved or were so minor that they were not worth mentioning.

23In the year between the applicant’s visit at the Humber River Hospital on November 3, 2018, and when she saw her family doctor in November 2019, the applicant only reported epigastric pain and one episode of low back pain on March 19, 2019. The respondent submits the applicant had a further fall in May 2019 that was recorded in Dr. Abdelsalam’s records. However, I did not see any evidence of such a fall. Having said that, given the applicant other post-accident injuries and assaults and the sparsity of back complaints from the accident before Dr. Louis saw the applicant, I am unable to find that the applicant has proven that she sustained chronic pain as a result of the accident. Nor is there any evidence to suggest that her chronic pain is of a severity that, if it were caused by the accident, that it is of a severity that it takes her out of the MIG.

The applicant’s pre-accident health issues do not take her out of the MIG

24The respondent raised the issue of whether the applicant’s pre-accident medical history excludes her from the MIG on the basis it prevents her from reaching maximal medical recovery in the MIG. The applicant made no submissions on this point. Nor was I referred to any evidence that the applicant’s pre-accident medical issues from the assaults, her fractured femur or depression affect her ability to reach maximal medical recovery within the MIG. Accordingly, I am unable to find that the applicant’s pre-accident medical history excludes her from the MIG.

The applicant is not entitled to the disputed treatment plans

25To 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. Because I have found the applicant’s injuries to fall within the MIG, it is unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary.

The applicant is not entitled to NEBs

26Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result 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.

27According to Mr. Srivinasan’s report, the applicant was independent in her personal care prior to the accident. She was responsible for all the housekeeping pre-accident for herself and her mother. She was no longer able to perform her chores and her mother assists her since the accident. The only chores Mr. Srivinasan identified were cooking, cleaning and carrying groceries. The applicant told Dr. Louis she was unable to cook, sweep the floor, change linens, clean the washroom or do laundry due to her pain complaints. This is contrary to the applicant’s advice to Dr. Saplys in 2018 that she had returned to light housekeeping.

28The applicant advised Mr. Srivinasan that she had constant pain in her low back, both knees and right pelvis. She had intermittent left hip pain, migraines, dizziness and nausea. She told Mr. Srivinasan that bending, lifting and standing aggravate her pain. Mr. Srivinasan reported on the worst that the applicant’s pain levels can reach but did not report on how often that occurred or what her average or usual pain levels were.

29The applicant advised Dr. Louis and Mr. Srivinasan that prior to the accident she would visit families, attend parties and community events, hang out with friends, paint, dance, play football, rugby, soccer, hockey, swim and run prior to the accident. She advised Dr. Louis that she was less interested in doing those activities since the accident.

30As indicated earlier, I give little weight to Dr. Louis’s opinion because he did not consider the intervening events in formulating his opinion. Dr. Louis’ opinion was that the applicant has a complete inability to engage in her pre-accident personal care and housekeeping tasks. He provided no opinion on whether the applicant’s accident related impairments affected her ability to engage in her leisure and social activities, despite listing those activities. He did not discuss her school or employment activities at all. As there was no comment on three out of the five activities the applicant normally engaged in pre-accident, I am unable to find that Dr. Louis’ opinion on only two activities supports the applicant’s claim for NEBs.

31The applicant submits that she is unable to engage in her social activities as a result of the accident. However, she advised Dr. John Townley of the Humber River Fracture clinic on May 28, 2018 that she went for a long walk with her family the day before. This contradicts her alleged inability to engage with her family and in physical activity.

32It is not clear whether the applicant advised Mr. Srivinasan that her low mood and physical pain contributed to her inability to engage in social, sports or recreational activities or if this was his opinion. To the extent it is his opinion, I am unable to accept it for the same reasons I gave earlier. No analysis of how the intervening events has affected the applicant was provided. Nor am I able to accept his opinion that a history of sports injuries may have sensitized the applicant to injury. This is beyond the scope of his area of knowledge. Further, Mr. Srivinasan opined that the applicant suffered a complete inability to carry on a normal life, despite reporting that she was currently studying to become a personal support worker at Yorkdale Adult Learning Centre. According to the November 3, 2018 note of Humber River Hospital, the applicant was working as a secretary at a youth program. At that time, she had no complaints of mood problems. She advised Dr. Absalom on September 25, 2019 that she was working two jobs and had just returned from vacation. She was in a romantic relationship, all of which is contrary to having a complete inability to carry on a normal life. Mr. Srivinasan’s determination of a complete inability to carry on a normal life is not logical without some explanation in light of the applicant’s post-accident work history and training. Accordingly, I am unable to find that the applicant has established on a balance of probabilities that she has a complete inability to carry on a normal life as a result of the accident.

The applicant is not entitled to interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that the applicant is not entitled to any further benefits are owed, no benefits are overdue and no interest is owed.

The applicant is not entitled to a Reg. 664 award

34The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. No benefits are payable and accordingly, the claim for an award is dismissed.

ORDER

35The applicant’s claims are dismissed in their entirety.