Citation: Ferej v. Intact Insurance Company, 2023 ONLAT 21-003301/AABS

Licence Appeal Tribunal File Number: 21-003301/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:

Warda Fesal Ferej

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Carla Barcelo, Paralegal

For the Respondent:

Cole H. O’Reilly, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Warda Fesal Ferej (the “applicant”) was involved in a motor vehicle accident on November 13, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Intact Insurance Company (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment, and denied three treatment plans/OCF-18s. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant has used $3,194.25 of her benefits within the MIG limit of $3,500.00, leaving a remainder of $305.75. This was noted in the submissions of the respondent. The applicant did not contest or otherwise comment on this in her reply submissions. Therefore, I accept this accounting of what remains under the MIG limit.

3Further, the treatment plan denied April 27, 2019 proposes treatment within the MIG, while the plans denied April 23, 2019 and May 28, 2019 each propose treatment outside of the MIG. As a result, entitlement to the latter two plans is dependent on a finding that the applicant is outside of the MIG.

ISSUES IN DISPUTE

4The 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 of the MIG?

2. Is the applicant entitled to $1,222.16 for chiropractic treatment in a treatment plan/OCF-18 recommended by Dan Shlepakov and denied on April 27, 2019?

3. Is the applicant entitled to $1,995.00 for a psychological assessment in a treatment plan/OCF-18 recommended by Dr. Harinder Mrahar and denied on April 23, 2019?

4. Is the applicant entitled to $2,925.00 for chiropractic treatment in a treatment plan/OCF-18 recommended by Dan Shlepakov and denied on May 28, 2019?

5. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

5I find that:

i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule, or that the accident exacerbated a pre-existing condition precluding her recovery if kept within the MIG. She remains in the MIG and is subject to its $3,500.00 limit on treatment.

ii. The applicant is entitled to $305.75 of the treatment plan denied on April 27, 2019, or whatever amount remains within the MIG limit of $3,500.00 as of the date of the release of this decision.

iii. As the applicant remains within the MIG, and as the treatment plans denied on April 23, 2019 and May 28, 2019 propose treatment outside of the MIG, she is not entitled to these plans, nor interest.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6Section 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 minor injuries. 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.”

7An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

8The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. The applicant submits that she was pregnant at the time of the accident, which should be considered a pre-existing condition that precluded her recovery if kept within the MIG. She further claims that she suffered from post-accident psychological impairments that also warrant her removal from the MIG.

9The respondent takes the position that the applicant sustained minor injuries in the accident and should therefore be held within the MIG. Intact also argues that the applicant acted in an unreasonable manner by failing to attend numerous insurer examination (“IE”) assessments for as long as three years post-accident, preventing the insurer from properly adjusting her claim.

The applicant does not suffer from a psychological impairment and/or a pre-existing condition warranting removal from the MIG

10I find that the applicant has failed to demonstrate, on a balance of probabilities, that she suffers from a psychological impairment outside of the MIG, or from a pre-existing condition that would preclude her recovery if kept within the MIG. Accordingly, she remains within the MIG and is subject to its $3,500.00 limit on treatment.

Psychological Impairment

11I am not persuaded by the applicant’s evidence that she suffered a psychological impairment as a result of the accident.

12Much of the applicant’s primary argument is founded on the clinical notes and records (“CNRs”) of her family doctor, Dr. Thomas Fung. However, I assign his observations minimal weight when it comes to psychological matters as he is a general practitioner with no claimed expertise in this area. I further assign minimal weight to Dr. Fung’s note dated November 15, 2018 that the applicant suffered a concussion in the accident. Nothing supports the existence of this conclusion in submissions, aside from the applicant’s claim that she hit her head on a front-seat backrest in the accident (she was a back-seat passenger). Paramedics did not attend the scene of the accident, nor did the applicant visit a hospital afterward. There is no evidence that a concussion protocol was undertaken, that the applicant was referred to a specialist, or that a neurological follow-up or neurological diagnostics were sought.

13In all, Dr. Fung’s CNRs and treatment recommendations seem more appropriate to address the other accident-related injuries that he diagnosed during this November 15, 2018 visit, namely a tender back and right flank along with mechanical pain. These are soft-tissue injuries in the Schedule unrelated to any sort of head trauma or possibly indicative of psychological sequelae.

14Additionally, Dr. Fung qualified his CNR comments regarding the applicant’s psychological sequelae resulting from the accident. He noted on both February 13, 2019 and February 20, 2019 that he suspected “PPD, PTSD” and “?PTSD, PPD,” respectively, referring to both post-traumatic stress disorder and post-partum depression (the applicant was pregnant at the time of the accident and had apparently given birth shortly before these appointments), and provided a psychological referral. Dr. Fung further noted on February 13, 2019 that the applicant was having post-partum issues with her newborn child. Granted, Dr. Fung also wrote in his record of the March 19, 2019 appointment that the applicant was having “anxiety with driving.” But her other symptoms of sleep trouble, low mood, and trouble with concentration described at the same time seem intermingled with the suspected post-partum depression and the sleep impairment that is a natural result of caring for an infant.

15Dr. Fung believed the applicant’s issues resolved themselves fairly quickly following the accident, as well. He wrote in a letter to the applicant’s counsel dated October 13, 2021 that the applicant had “temporary psychological effects after the accident and that these “symptoms resolved after March 2019 as she did not follow up with myself or the psychologist she was referred to.” In addition, the applicant had follow-up appointments with Dr. Fung on November 8, 2021 and November 25, 2021, but these were about ongoing headaches along with back, neck, and shoulder pain (issues which the applicant has not advanced as a reason for removal from the MIG). No treatment was recommended, nor was medication prescribed.

16To summarize, Dr. Fung’s CNRs and observations do not substantiate that the applicant suffered from a psychological impairment as a result of the accident.

17I am similarly not convinced by a provisional psychological status evaluation of the applicant conducted on March 8, 2019 by Dr. Harinder Mrahar, psychologist. I do not find this report supportive of the applicant’s argument that her psychological issues are entirely related to the accident. Although Dr. Mrahar provisionally diagnosed adjustment disorder with mixed anxiety and depressed mood, along with a specific situational phobia of riding in a vehicle, and recommended a full psychological assessment, I find this evaluation to be of marginal evidentiary value. This report consists of just two pages and is vague on both how the assessment was conducted and how the assessor reached the conclusions therein.

18Most notably, the Dr. Mrahar report seems entirely based on the self-reporting of the applicant. It is essentially a two-page letter recounting an interview with the applicant about her psychological health concerns. No psychometric testing was performed. It is unclear if the applicant was actually assessed by Dr. Mrahar, as the evaluation letter was written following a screening by Sachkaran Sidhu, who was training as a psychological associate at the time. In addition, there is no detailed information in the letter concerning how or when this screening took place. Accordingly, I allocate nominal weight to this evaluation and its conclusions.

19I find the respondent’s insurer’s examination (“IE”) report completed by Dr. Monique Costa El-Hage to be the most thorough psychological assessment submitted into evidence, as it consists of a full clinical interview and psychometric testing. Dr. El-Hage concluded in this report, dated November 13, 2022 (it resulted from in-person examinations that took place on April 5, 2022 and September 20, 2022), that the applicant did not have any diagnosable psychological impairments and that treatment was not warranted. The applicant reported to Dr. El-Hage that she felt “okay and happy.” She noted some stress in relation to being a single mother, but further explained that she was no longer having any worried thoughts about her baby such as she reported to Dr. Fung in 2019. Lastly, Dr. El-Hage wrote that any possible psychological issues connected to the accident had been resolved by the time of her examinations.

20I assign the Dr. El-Hage report significant weight, despite it being completed nearly four years post-accident. While the applicant submitted that both this IE report and another IE report and addendum completed by Dr. Eric Silver, general practitioner, dated February 4, 2021 (resulting from an assessment conducted on January 21, 2021) and April 9, 2021, respectively, should be assigned limited weight due to lateness, the respondent countered that the applicant had not been cooperative with IE appointments for years post-accident. The respondent substantiated this assertion with a chart and correspondence showing that the applicant failed to attend or cancelled some 16 IEs scheduled by the insurer from March 2019 until January 2021, including seven that were to assess her psychological condition.

21As a result, I cannot fault the Dr. El-Hage assessments for being conducted more than three years after the accident. Although the applicant argued in reply submissions that she missed these appointments because her “priorities” were that of her dependent children and newborn, that does not sufficiently explain her being unable to attend IEs for all of 2019 and 2020. The respondent-provided chart of missed IE appointments further indicates that the insurer attempted to work with the applicant to schedule assessments at her convenience, but was still unsuccessful. All of this indicates that the applicant acted in an unreasonable manner, as suggested by the respondent, and as a result I assign significant weight to the Dr. El-Hage report regardless of the timing of the examinations that informed it.

22For the reasons described above, I find that the applicant has not met her burden and demonstrated that she suffers from a psychological condition that would warrant her removal from the MIG.

Pre-Existing Condition (Pregnancy)

23In addition, I further find that the applicant has not sufficiently substantiated that she suffered from a pre-existing condition (namely her pregnancy) at the time of the accident that precluded her recovery within the MIG.

24Although I do not dispute that the applicant was pregnant at the time of the accident, no evidence has been submitted to demonstrate that this condition resulted in her being precluded from recovery within the MIG. As noted above, the CNRs of Dr. Fung indicate a moderate level of anxiety post-accident, but this appears to have been due to post-partum concerns that were not established to have resulted from the accident. No analysis has been provided to demonstrate how this anxiety would have precluded recovery within the MIG, either, which is necessary to meet the requirements of the Schedule and warrant removal from the MIG and its $3,500.00 limit on treatment.

25Also, the psychological status evaluation signed by Dr. Mrahar only briefly noted that the applicant was pregnant at the time of the accident. This evaluation connected all of the applicant’s psychological impairments to the accident alone, with no mention of her pregnancy as a factor—despite the pregnancy and post-partum issues being, as detailed above, a significant factor in the CNRs of Dr. Fung in February 2019. This, by view, is a telling omission, that further causes me to doubt the Dr. Mrahar evaluation letter. Conversely, as described above, the IE report of Dr. El-Hage much more thoroughly addressed these pregnancy and post-partum issues, with the applicant stating that worries about her children noted to Dr. Fung in early 2019 had resolved by the time of her assessment.

26Accordingly, I find that the applicant has not demonstrated that her pregnancy precluded her recovery within the MIG.

Conclusion

27For the reasons detailed above, I find that the applicant suffered minor injuries in the accident. She has failed to demonstrate that she sustained a psychological condition as a result of the accident that would warrant removal from the MIG, or that a pre-existing condition precluded her recovery within the MIG. As a result, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.

The Treatment Plans

28The applicant is entitled to $305.75, or the amount remaining under the MIG limit of $3,500.00 on the release date of this decision, to be applied to the treatment plan for physiotherapy denied on April 27, 2019 (the only one of the three plans in dispute that propose treatment within the MIG).

29The applicant is not entitled to the treatment plans denied on April 23, 2019 and May 28, 2019, as she has been found to remain within the MIG and each of these plans propose treatment outside of the MIG. It follows that she is also not entitled to interest on these plans.

ORDER

30I find that:

i. The applicant has failed to demonstrate that she suffers from injuries that are not defined as minor in the Schedule, or that the accident exacerbated a pre-existing condition precluding her recovery if kept within the MIG. She remains in the MIG and is subject to its $3,500.00 limit on treatment.

ii. The applicant is entitled to $305.75 of the treatment plan denied on April 27, 2019, or whatever amount remains within the MIG limit of $3,500.00, as of the date of the release of this decision.

iii. As the applicant remains within the MIG, and as the treatment plans denied on April 23, 2019 and May 28, 2019 propose treatment outside of the MIG, she is not entitled to these plans, nor interest