Citation: Hall v. Intact Insurance Company, 2024 ONLAT 22-011352/AABS

Licence Appeal Tribunal File Number: 22-011352/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:

Richardo Hall

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

Marc Golding, Paralegal

For the Respondent:

Patricia Dimakos, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ricardo Hall, the applicant, was involved in an automobile accident on September 23, 2020, 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 Insurance Company, 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. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from September 30, 2020, to date and ongoing?

ii. 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 (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.

iii. Is the applicant entitled to $200.00 for other goods and services, proposed by Chinguacousy Physio and Foot Clinic in a treatment plan “(“plan”) submitted on October 11, 2020?

iv. Is the applicant entitled to $2,503.22 for physiotherapy services, proposed by Chinguacousy Physio and Foot Clinic, in a plan submitted on April 22, 2021?

v. Is the applicant entitled to $2,144.93 for psychological services, proposed by Chinguacousy Physio and Foot Clinic in a plan submitted on September 17, 2021?

vi. Is the applicant entitled to $53.53 for other goods and services, proposed by Fandor Pharmacy in a plan submitted on September 28, 2021?

vii. Is the applicant entitled to $ 4,015.11 for psychological services, proposed by Chinguacousy Physio and Foot Clinic in in a plan submitted on July 8, 2022?

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

RESULT

3The applicant is not entitled to an income replacement benefit.

4The applicant’s injuries are minor in nature, and he remains within the Minor Injury Guideline.

ANALYSIS

The applicant is not eligible for an Income Replacement Benefit

5I find that the applicant is not eligible to an income replacement benefit.

6The OCF-2 completed by the applicant’s employer indicates that the applicant was off work from September 20, 2020 to November 2, 2020, a period of approximately 5.5 weeks.

7As the applicant has returned to work on November 2, 2020 there is no basis to consider an ongoing IRB. There are no submissions or evidence alleging that the applicant was subsequently unable to work following his November 2, 2020 return.

8The OCF-2 also indicates that the applicant’s employer provides both sick time and short-term disability.

9The respondent has submitted paystubs from the applicant showing the short-term disability received.

10From the paystubs I have constructed the following short term disability scheme:

11Section 7(3)(a) of the Schedule permits an insurer to deduct 70% of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which he or she is eligible to receive an income replacement benefit.

12In all cases above, 70% of the applicant’s gross employment income would negate the entire $400.00 benefit available to the applicant. Therefore, the applicant is not entitled to an income replacement benefit.

The Applicant remains subject to the Minor Injury Guideline

13An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1). The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.

The applicant has not proven a psychological impairment

14I find that the applicant has not proven a psychological impairment which would warrant removal from the MIG.

15The applicant relies on an assessment completed by Dr. Leon Steiner, psychologist and Ms. Sana Ashraf, psychotherapist. Ms. Ashraf assessed the applicant on June 14, 2022 and June 16, 2022.

16Dr. Steiner diagnosed the applicant with Major Depressive Disorder with Anxious Distress, Somatic Symptom Disorder, with Predominant Pain and Specific Phobia, Situational (driving).

17The respondent submits an assessment report completed by Dr. Monique Costa El-Hage, psychologist. Dr. El-Hage assessed the applicant on October 4, 2022. Dr. El-Hage found that the applicant does not meet the criteria for a psychological diagnosis as a result of the accident.

18I prefer the report of Dr. El-Hage for several reasons.

19Firstly, in her document review, Dr. El-Hage has reviewed the clinical notes and records of Dr. Anita Hunt, the applicant’s family physician. Dr. El-Hag notes that on August 30, 2021, the applicant told Dr. Hunt that the lawyer sent him for psychological therapy.

20The clinical notes and records of Dr. Hunt were submitted as evidence from the accident to November 2023. When reviewing the records, I note that August 30, 2021 is the only reference made by the applicant to accident-related psychological issues. The fact that he was sent for a psychological assessment at the behest of his legal representative, without ever having reported psychological symptoms to Dr. Hunt, raises questions about the motives behind the assessment.

21Secondly, Dr. El-Hage administered the Structured Inventory of Malingered Symptomatology (“SIMS”). This test is used to assist in the detection of malingering. The applicant scored above the acceptable standard on three of five scales and slightly above the recommended cut-off score on the total scale. Dr. El-Hage notes that this could indicate a cry for help presentation or symptom magnification. She further notes that due to the applicant’s score on this assessment, his other self-report measures should be interpreted with some caution and in the context of other clinically relevant information.

22Lastly, Dr. Steiner did not assess or interview the applicant, the interview and tests were administered by Ms. Ashraf. Dr. El-Hage did interview, observe and test the applicant.

23When I review the lack of clinical history of psychological issues, and the context provided by Dr. El-Hage’s note of caution with regards to the applicant’s self-reporting, I have doubt that the applicant is suffering from a psychological impairment.

24This doubt is further magnified by the fact that the applicant sought psychological treatment at the behest of his legal representative, and that these issues were never discussed or identified to his family doctor with whom he has a significant documented clinical history.

25Therefore, I give more weight to the findings of Dr. El-Hage. The applicant has not convinced me, on the balance of probabilities, that he suffers from an accident-related psychological impairment.

The applicant does not suffer from chronic pain with a functional impairment

26The applicant submits that he should be removed from the MIG due to chronic back pain with a functional impairment.

27The applicant submits that the clinical notes and records of Dr. Hunt show chronic pain with a functional impairment.

28The respondent submits that the clinical notes and records of Dr. Hunt show that there is not a functional impairment. In addition, the respondent submits a s.44 assessment conducted by Dr. Sabrina Ming-Wai Tu, general practitioner on September 28, 2022.

29I give the clinical notes and records of Dr. Hunt the highest weight in this dispute. The applicant does, on numerous occasions, report ongoing pain to Dr. Hunt. However, in all his reports, the applicant maintains full function.

30On October 14, 2020, Dr. Hunt noted that that the applicant has no functional limitations at home, and that he is ready to return to work in the next week.

31Dr. Hunt completed return to work forms on October 14, 2020 where she noted that the applicant has near full mobility. The only issue affecting the applicant’s function was the ability to continuously bend and/or twist to which Dr. Hunt rated at 67-100% of normal capacity. Dr. Hunt noted in the form that the applicant should return to full function within two weeks.

32The next note documenting the applicant’s ability to function was on August 27, 2021. In this visit, the applicant reported his level of function at work at 95-97%.

33The respondent relies on the report of Dr. Tu. Dr. Tu notes that the applicant was very pain-focused during the assessment, and that he had significant self-limitation, guarding and inhibition of effort while being assessed. Dr. Tu also noted that the applicant saw an increase in strength, fluidity and range of movement on informal observation compared to formal testing.

34Dr. Tu’s found that from a musculoskeletal perspective, the applicant has likely suffered uncomplicated soft tissue injuries, with no objective musculoskeletal impairments as a result of the accident.

35The report of Dr. Tu corroborates the contemporaneous clinical notes and records of Dr. Hunt.

36There has been no evidence adduced which would demonstrate that the applicant suffers from chronic pain with an associated functional impairment. He is able to function at work at 95-97% and during informal observation, Dr. Tu noted that he has increased strength, fluidity and range of movement.

37Both section 44 assessors have noted that the applicant has presented signs of malingering and exaggeration with regards to his accident-related symptoms.

38However, as noted earlier, I give highest weight to the clinical notes and records of Dr. Hunt, who notes that the applicant maintains full function.

39Therefore, for the reasons above, I find that the applicant has proven chronic pain syndrome with an associated functional impairment and remains within the MIG.

The applicant is not entitled to any of the disputed treatment plans

40As the MIG limits have been exhausted, the applicant is not entitled to further medical or rehabilitative treatment.

Interest

41As no benefits are overdue, there is no entitlement to interest.

ORDER

42For the reasons above I find that:

i. The applicant remains subject to the Minor Injury Guideline;

ii. The applicant is not entitled to the disputed treatment plans; and

iii. This application is dismissed.