Citation: Kidit v. Intact Insurance, 2024 ONLAT 22-013514/AABS

Licence Appeal Tribunal File Number: 22-013514/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:

Dalia Kidit

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Nathan Prince

APPEARANCES:

For the Applicant:

Bianca Pirrotta-Iaccino, Paralegal

For the Respondent:

Thusha Mayuran, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Dalia Kidit, the applicant, was involved in an automobile accident on March 8, 2021, 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. 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 MIG limit has not been exhausted and there remains $117.16.

ii. Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Alma Rehab Inc. in a treatment plan/OCF-18 (“plan”) submitted June 16, 2021, and denied June 17, 2021?

iii. Is the applicant entitled to $3,157.39 for chiropractic services, proposed by Alma Rehab Inc. in a plan submitted July 5, 2021, and denied July 6, 2021?

iv. Is the applicant entitled to $2,825.37 for chiropractic services, proposed by Alma Rehab Inc. in a plan submitted November 1, 2021, and denied December 9, 2021?

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

RESULT

3The applicant has sustained a minor injury and is subject to the MIG treatment limits.

4The applicant is entitled to treatment up to the MIG limits.

5No interest is payable.

ANALYSIS

The applicant has not demonstrated that her impairments warrant removal from the MIG

6I find the applicant has not demonstrated, on a balance of probabilities, that she should be removed from the MIG.

7Section 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.”

8Under s. 18(2), an insured may be removed from the MIG if they can establish that they have a documented pre-existing 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 condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9The applicant submits that she should be removed from the MIG based on her ongoing pain and psychological impairments. In support of her position, she relies on her OCF-3, the clinical notes and records (“CNRs”) of her family doctor, Dr. Romeo Tan, the CNRs of Brampton Urgent Care Centre, a letter from Ms. Sharlene Gumbs, social worker, and the OCF-18 submitted by Dr. Konstantinos Papazoglou, psychologist.

10The respondent submits that the applicant does not suffer from chronic pain with a functional impairment or a psychological impairment that would warrant removal from the MIG. It relies on the section 44 reports of Dr. Michael Hanna, general practitioner, and Dr. Alfonso Marino, psychologist.

11For the reasons that follow, I find that the applicant’s impairments do not warrant removal from the MIG.

The applicant has not demonstrated that she suffers from chronic pain with a functional impairment

12I find that the applicant has not established, on a balance of probabilities, that she suffers from chronic pain with a functional impairment that would warrant removal from the MIG.

13The parties disagree as to the appropriate legal test to apply. The applicant submits that I should be guided by C.G. v The Guarantee Company of North America, 2020 CanLII 40333 (ON LAT), wherein the adjudicator found that pain which persists for more than three to six months was sufficient to support a finding of chronic pain warranting removal from the MIG. In contrast, the respondent points me to 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT), wherein the adjudicator found that ongoing pain alone is insufficient to take one out of the MIG and that ongoing pain must also be accompanied by functional impairment. While I am not bound by prior Tribunal decisions, I agree with the reasoning in 16-000438 which reflects the longstanding test that has been adopted by the Tribunal and which I have already set out above.

14The applicant submits that she should be removed from the MIG based on her ongoing pain. In support of her position, she points to the CNRs of Dr. Tan which indicate that that the applicant attended on several occasions with reports of pain, most significantly in her lower back and right shoulder. In addition, she submits that she attended physiotherapy, chiropractic, and massage therapy at Alma Rehab Clinic between March 2021 and March 2022. Finally, the applicant relies on the CNRs of Brampton Urgent Care Centre, and specifically, her attendance on March 16, 2023 where she complained of lower and upper back pain.

15With respect to the applicant’s alleged functional limitations, the applicant relies on a letter from Ms. Gumbs dated April 13, 2021 which indicates that the applicant has a hard time doing her household chores and taking care of her children.

16The respondent submits that there is a lack of pain reporting by the applicant to her family doctor, noting that she has complained of pain seven times in the past three years, but numerous family doctor visits do not mention any accident-related symptoms. It further points me to the April 29, 2021 CNR of Dr. Tan wherein the applicant indicated that she was negative for musculoskeletal joint pain. In addition, the respondent submits that I should draw an adverse inference from the fact that the applicant did not attend at her family doctor until two weeks after the accident.

17The respondent relies on its in-person section 44 assessment conducted by Dr. Hanna on July 28, 2021. In his report, Dr. Hanna opines that the applicant sustained no more than a sprain/strain type injury to her lumbar region which would be considered a minor injury as defined in the MIG. During the examination, the applicant reported that she had remained independent with all of her pre-accident personal care and mobility tasks, which Dr. Hanna found to be consistent with his physical examination. Conversely, the applicant reported limitations with grocery shopping, meal preparation, cooking, and garbage removal which Dr. Hanna found was inconsistent with his physical examination. Dr. Hanna concluded that the applicant had suffered soft-tissue impairments affecting her lumbar region as a result of the subject accident, which he opined would typically resolve within 8 to 12 weeks.

18I find that the applicant’s reporting of post-accident pain has been inconsistent and does not support her removal from the MIG on the basis of chronic pain. I find that while the applicant reported pain to her family doctor between March 2021 and October 2021, and then again to Brampton Urgent Care in March 2023, these intermittent reports do not support her position that she has chronic pain. While I am alive to the fact that there were some reports of pain for a period after the accident, I find that the medical evidence does not indicate ongoing pain symptomology.

19In reaching this conclusion, I note that the CNRs of Dr. Tan do not indicate that the applicant has experienced any ongoing pain after October 4, 2021. Furthermore, the final treatment notes from Alma Rehab Clinic in March 2022 indicate that the applicant was “feeling better than before” and had “no new complaints”. Finally, the March 2023 Brampton Urgent Care CNR indicates that the applicant’s pain was a result of heavy lifting at work and not the accident of March 8, 2021.

20With respect to functional impairment, I am not persuaded by Ms. Gumbs’ letter. The brief letter appears to be based on the applicant’s self-reported limitations and does not indicate that Ms. Gumbs engaged in any examination of the applicant. Furthermore, the letter fails to provide any details or context with regards to the alleged limitations and does not discuss what caregiving and household chores the applicant is unable to complete or the extent to which she is unable to complete them. Without this necessary level of detail, I find Ms. Gumbs’ letter insufficient to persuade me that the applicant should be removed from the MIG.

21I am persuaded by Dr. Hanna’s report which found that the applicant’s self-reported functional limitations were inconsistent with her physical examination. I base this conclusion on that fact that Dr. Hanna’s assessment involved an in-person examination of the applicant in addition to a comprehensive review of the medical documentation. Furthermore, Dr. Hanna’s findings are not rebutted by any section 25 assessments. Finally, Dr. Hanna’s opinion is congruent with the applicant’s OCF-3 which indicates an anticipated recovery period of 9 to 12 weeks.

22As I have found the applicant has not established accident-related chronic pain with a functional impairment, I find she does not meet the test for removal from the MIG.

The applicant has not demonstrated that she suffers from a psychological impairment

23I find that the applicant has not demonstrated on a balance of probabilities that she has a psychological impairment that warrants removal from the MIG.

24An injured person is not subject to the MIG if they can show that they have a psychological condition as a result of the accident. To be removed from the MIG, the psychological condition must be more than sequalae of the minor injury.

25The applicant relies on the CNRs of Dr. Tan, which show that the applicant was referred for a psychological assessment, and the OCF-18 submitted by Dr. Papazoglou. The additional comments of the OCF-18 indicate that the applicant underwent a psychological screening via telephone by Aliya Dowlut, RP. MA., under the supervision of Dr. Papazoglou. The screening notes indicate that the applicant complained of emotional trauma, inability to complete activities of daily living, and driving anxiety and avoidance. The screening resulted in a provisional diagnosis of Adjustment Disorder (with mixed anxiety and depressed mood).

26The respondent submits that the applicant has not been prescribed any psychotropic medication nor has she been diagnosed with any psychological impairment and relies on the in-person section 44 assessment conducted by Dr. Marino on October 27, 2021. During this assessment, the applicant advised Dr. Marino that she was not interested in participating in counselling because she felt she had been “coping well” and her initial driving related anxiety had significantly improved. Furthermore, the report indicates that the applicant had resumed her activities of daily living, such as her employment and attending church in person and she felt that her emotional condition was better stabilized. Finally, the respondent submits that the applicant denied any significant issues with respect to depression or anxiety and notes that Dr. Marino ultimately concluded that the applicant did not present with any significant psychological impairment or diagnosis.

27I find that the evidence does not support a finding that the applicant has an accident-related psychological impairment that warrants removal from the MIG. While I acknowledge that the applicant was referred for a psychological assessment by Dr. Tan, it appears that the applicant never followed up on this referral. In addition, there are no further CNRs from Dr. Tan which speak to the issue of psychological impairment after May 27, 2021.

28In comparing the findings of Dr. Papazoglou and Dr. Marino, I find Dr. Marino’s conclusion to be more persuasive. While I am alive to the provisional diagnosis in the OCF-18, I note that this diagnosis was provisional and was based on a phone interview and was not the result of a full psychological assessment. In contrast, Dr. Marino’s report was based on a complete section 44 psychological assessment which was comprised of a comprehensive document review as well as an in-person assessment. Finally, I am persuaded by the applicant’s own self-reporting to Dr. Marino that she was she was coping well and not experiencing any significant issues with respect to depression or anxiety.

29As a result of the foregoing, I find that the applicant has not established that she suffers from a psychological impairment which would warrant removal from the MIG.

The applicant is not entitled to the treatment plans in dispute

30As I have found the applicant to remain within the MIG, it is not necessary to assess the treatment plans in dispute to determine if they are reasonable and necessary. The applicant is entitled to treatment up to the MIG limit.

Interest

31As there are no payments owed, the applicant is not entitled to interest.

ORDER

32For the reasons above, I find that:

i. The applicant’s injuries fall within the MIG;

ii. The applicant is entitled to treatment up to the MIG limits;

iii. No interest is payable; and

iv. The application is dismissed.