Licence Appeal Tribunal File Number: 21-010509/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:
Bibi Kasmalee
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR:
Neil Levine
APPEARANCES:
For the Applicant:
Marc Golding, Counsel
For the Respondent:
Intact Insurance Company
Marilyn Maxwell-Smith, Counsel
HEARD: In Writing
OVERVIEW
1Bibi Kasmalee, the applicant, was involved in an automobile accident on January 25, 2019, 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, Intact, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. 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 Minor Injury Guideline limit?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 25, 2019 to date and ongoing?
iii. Is the applicant entitled to $2,575.12 for chiropractic services, proposed by Downsview Healthcare Inc. in a treatment plan/OCF-18 (“plan”) dated December 5, 2019?
iv. Is the applicant entitled to $12,918.49 for a chronic pain program, proposed by Downsview Healthcare Inc. in a treatment plan dated October 29, 2020?
v. Is the applicant entitled to the assessments proposed by Downsview Healthcare Inc., as follows:
$2,000.00 for a psychological assessment, in a treatment plan dated August 15, 2019; and
$2,0000.00 for a chronic pain assessment, in a treatment plan dated January 17, 2020?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that she is entitled to a non-earner benefit.
4The applicant has failed to demonstrate that she suffers from a non-minor injury as a result of the subject accident that precludes her recovery under the MIG. She remains within the MIG.
5The applicant is not entitled to the treatment plans and assessments listed in the application: chiropractic services, a chronic pain program, a psychological assessment and a chronic pain assessment nor interest.
late disclosure of evidence
6The applicant relied on clinical notes and records from Dr. Ramzan (February 20, 2019), Downsview Healthcare (December 9, 2020) and Brampton Civic Hospital (April 9, 2019). These records were served as part of the applicant’s submissions on August 2, 2023, after the production deadline of December 24, 2022 set out in the Case Conference Report and Order of October 25, 2022.
7The applicant did not note that these CNRs were served after the production deadline. The respondent submitted that this was in violation of the orders and deadlines set out in the CCRO and thus should be excluded or given no weight.
8I do not see these records as pivotal in this case. Therefore, I will allow them to be referred to.
ANALYSIS: minor Injury guideline
Law: Minor Injury Guideline
9The applicant must prove on the balance of probabilities that her injuries were not predominantly minor and exceed the definition of minor injury under the Schedule, or that her pre-accident conditions preclude a recovery if kept within the MIG.
10Section (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 in accordance with the MIG. Section 3(1) of the Schedule 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 “may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule, or under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if the insured person is kept within the confines of the MIG.” The Tribunal has also determined that chronic pain with functional impairment or a psychological condition have been found to also exceed the definition of minor injury.
11The burden is on the applicant to show, on a balance of probabilities, that her injury falls outside of the MIG.
12The applicant has failed to prove on a balance of probabilities that she should be removed from the Minor Injury Guideline for chronic pain or for a psychological condition.
Chronic Pain
13The applicant has failed to prove on a balance of probabilities that she should be removed from the Minor Injury Guideline for chronic pain.
14The applicant submitted that she was managing her injuries – and presumably her chronic pain – through post-accident visits to her family doctor. However, she submitted evidence of only one visit to family physician Dr. Sarah Ramzan in four years that noted pain that resulted from the accident (February 6, 2019), and this was on a visit dated February 6, 2019, which was immediately following the accident.
15She submitted that she suffered injuries to her head, neck, back, left shoulder, left hand and “post traumatic stress disorder.” Dr. Pivtoran, a chiropractor, diagnosed the applicant with strains of her left wrist and hand, left shoulder, cervical thoracic and lumbar spine, post traumatic headaches and dizziness and mental health/emotional issues. It is not clear whether Dr. Pivtoran, a chiropractor, is qualified to make a diagnosis of post-traumatic stress disorder.
16The applicant submitted no other evidence of chronic pain that resulted from the accident in the years following the accident. Furthermore, the applicant submitted no additional evidence or CNRs of functional impairment as a result of the accident.
17The s. 44 report submitted by the respondent, from Dr. Tepperman dated August 4, 2020, noted an uncomplicated myofascial strain of the applicant’s lumbar spine and soft tissue injuries of the left hand because of the accident. However, there is little evidence that shows the respondent suffers from chronic pain and psychological impairment as a result of these injuries
Psychological Issues
18The applicant submitted Dr. Shaul’s s. 25 assessment dated March 10, 2022. In terms of psychological conditions that would remove the applicant from the MIG, Dr. Shaul noted low emotional distress and anxiety but concluded the opposite, that the applicant did have psychological issues that resulted from the accident. The question then becomes whether these issues rise to the level justifying the applicant’s removal from the MIG.
19The respondent submitted that in this case, there is a difference between psychological impairments that resulted from the accident (which would remove the applicant from the MIG) versus psychological sequelae from soft tissue injuries (which would not remove the applicant from the MIG), citing (Applicant v. Certas Direct, 2019 CanLII 10157 ONLAT). The respondent submitted that at most, psychological sequelae resulted from the accident rather than psychological impairments.
20To support this position the respondent submitted the s. 44 report of Dr. Mor, a psychologist, which was dated October 2, 2019. Dr. Mor’s assessment noted that the applicant said she was not depressed, irritable or angry. The applicant noted some pain issues but stated she was “80% improved.” She also denied any driving anxiety and had minimal scores on a depression test. This assessment noted no psychological diagnosis, and also noted that the applicant said she was confident of further recovery, asserting no changes in cognitive functioning and no driving anxiety.
21Accordingly, the question here between the competing diagnoses and conclusions is whether the applicant’s psychological issues rise to the level justifying the applicant’s removal from the MIG. For example, is there lingering pain from the alleged physical impairments as a result of the accident that, in turn, resulted in depression or anxiety? And are these psychological issues psychological sequelae or true impairments?
22The Downsview Healthcare CNRs (January – November 2021) submitted by the applicant do not ascribe any psychological diagnosis to the applicant, but rather sequelae. She missed almost half (6 out of 14) of the psychological appointments that were scheduled.
23There is in fact ample evidence to conclude that on a balance of probabilities, the applicant’s soft tissue injuries resulted in some psychological sequelae but not a psychological impairment. There is evidence of some anxiety and depression but it has not been diagnosed by an assessor as a serious impairment, nor has the applicant complained about distinct psychological problems as a result of the accident to an assessor. The test scores that are in the minimal range also cast doubt on whether the applicant should be removed from the MIG on psychological grounds.
24There is little evidence of any psychological impairment as a result of the accident that would remove the applicant from the MIG or entitle her to further psychological treatment. The applicant has failed to prove on a balance of probabilities that she should be removed from the Minor Injury Guideline for psychological issues.
Minor Injury Guideline: Conclusions
25There is not enough evidence to suggest that the applicant should be removed from the MIG because of chronic pain or psychological issues.
26The applicant has not demonstrated that she suffers from a non-minor injury as a result of the subject accident that precludes her recovery under the MIG. She remains within the MIG.
ANALYSIS: NON-EARNER BENEFIT
Law: Non-Earner Benefit
27The relevant test for entitlement to a non-earner benefit is set out in s. 12.(1) of the Schedule. It says:
The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions: The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
28Part 1, s. 3(7)(a) of the Schedule sets out a definition of “a complete inability to carry on a normal life.”:
For the purposes of this regulation, a person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all the activities in which the person ordinarily engaged before the accident.”
29Furthermore, the test that the LAT refers to in these cases is around the degree to which the applicant is capable of participating in what is a “normal life,” which includes daily activities. The Court of Appeal’s Heath v. Economical decision (May 11, 2009), known as the “Heath Factors,” sets out the principles that should be applied when considering the NEB. This is a comparative test between pre- and post-accident activities. This is set out in Anonymous v. State Farm Insurance (003195 ON LAT), where the applicant’s activities and life events are assessed over a period prior to the accident and compared to the applicant’s post-accident circumstances. In summary:
i. All of the applicant’s pre-accident activities must be considered, but more weight may be placed on activities that were more important to the applicant’s pre-accident life.
ii. The applicant must prove that his or her accident related injuries continuously prevent him/her from engaging in substantially all of his or her pre-accident activities. This means that the disability or incapacity must be uninterrupted.
iii. “Engaging in” is from a qualitative perspective. Even if an applicant can still do an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity.
iv. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can physically perform those activities.
Result
30The applicant has failed to prove that she has a complete inability to carry on a normal life, especially when considered based on the Heath Factors. Accordingly, she does not qualify for a non-earner benefit.
Parties’ Positions on NEB
31The applicant submitted that a disability certificate submitted by chiropractor Dr. Oleksandr Pivtoran certified her inability to carry on a normal life. This suggested that activities of daily living were “markedly impaired”. Dr. Pivtoran noted, on March 19, 2019, a “substantial inability” to engage in caregiving and housekeeping activities.
32For the purposes of the Heath Factors, the applicant’s three primary aspects of her pre-accident daily normal life include: caregiving, housekeeping, and home maintenance (she does not list a fourth aspect). There is an absence of additional evidence that notes any impairment of activities of daily living save for caregiving and housekeeping/home maintenance.
33The only mention of impairment in any of these activities of daily living was in her visit with her family doctor, Dr. Sarah Ramzan, which note problems with lifting her child (February 6, 2019). At this visit there is also mention in the CNRs that her neck, shoulder, hand and lower leg pain are made worse when lifting her baby. There are also two passing mentions in the clinical notes and records of Downsview Healthcare Inc. (January 25, 2019 and November 4, 2021) from psychologists Dr. Jacqueline Brunshaw and Renata Michalski of the applicant being unable to fulfill household duties and inability to interact with her son as she did previously. These are not evaluations but rather observations from the psychologists and must therefore be accorded less weight. However, there are no other records submitted from the applicant’s family doctor (or other specialists) in this regard.
34There are no other CNRs to substantiate or corroborate the applicant’s position that she suffers from chronic pain that is disabling or compromises her ability to function.
[35] The respondent submits Dr. Shaul’s s. 25 report (March 10, 2020) which is less conclusive and is inconsistent with Dr. Pivtoran’s diagnosis and conclusions. Dr. Shaul’s psychological assessment does not describe a complete inability to carry on normal activities.
36In addition, the respondent’s section 44 examination report, by Dr. Tepperman (August 4, 2020), and an extensive s. 44 occupational therapy report from Ms. Maddix, an occupational therapist (December 9, 2019), show small changes in lifestyle and activities but do not show an inability to carry on a normal life. This report noted the applicant’s independence, caregiving activities for her son, and housekeeping duties.
37The respondent also submitted that there were no family physician records from the applicant related to accident-related issues, despite the applicant noting that her injuries were being mitigated “by attending her family physician.” A review of the applicant’s family physician files from Dr. Sarah Ramzan confirms that there are no accident related CNRs except for a visit immediately post-accident.
38Accordingly, I afford more weight to the respondent’s evidence and I do not see sufficient compelling evidence that the applicant has a complete inability to carry on a normal life. And with respect to the Heath Factors, there is no evidence that there is an ongoing disability or incapacity, especially related to the applicant’s pre-accident activities. There is only one post-accident activity with which the applicant has had documented difficulty, which is lifting her son, but this hardly rises to the level of an impairment of most daily living activities, and in any case there is no other evidence from the applicant showing that she cannot substantially engage in other daily activities.
39The applicant requested entitlement to the following treatment plans and services:
i. $2,575.12 for chiropractic services, proposed by Downsview Healthcare Inc. in a treatment plan/OCF-18 (“plan”) dated December 5, 2019?
ii. $12,918.49 for a chronic pain program, proposed by Downsview Healthcare Inc. in a treatment plan dated October 29, 2020?
iii. Assessments proposed by Downsview Healthcare Inc., as follows:
$2,000.00 for a psychological assessment, in a treatment plan dated August 15, 2019; and
$2,0000.00 for a chronic pain assessment, in a treatment plan dated January 17, 2020?
40The applicant remains within the MIG, and accordingly is not entitled to the treatment plans in dispute as they exceed the MIG limit. Accordingly, an analysis into whether they are reasonable and necessary is not required.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are payable and no interest applies.
Award
42The 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. Because the applicant has not met the threshold to be removed from the Minor Injury Guideline, and is not entitled to the treatment plans claimed, no award is payable.
ORDER
43I find that the applicant:
i. Shall remain in the Minor Injury Guideline.
ii. Is not entitled to a non-earner benefit.
iii. Is not entitled to the treatment plans claimed.
iv. Is not entitled to interest nor an award.
Released: October 22, 2024
Neil Levine
Vice-Chair```