Citation: Yousef v. Wawanesa Insurance, 2023 ONLAT 22-001694/AABS

Licence Appeal Tribunal File Number: 22-001694/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:

Ahmad Yousef

Applicant

and

Wawanesa Insurance

Respondent

DECISION

VICE-CHAIR:

Jeremy A. Roberts

APPEARANCES:

For the Applicant:

Angela Chui, Paralegal

For the Respondent:

Nolan Cattell, Counsel

HEARD: In Writing

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OVERVIEW

1Ahamd Yousef, the applicant, was involved in an automobile accident on November 24, 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, Wawanesa Insurance, 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?

ii. Is the applicant entitled to $2,200.00 for psychological assessment, proposed by Pro Life Wellness Inc. in a treatment plan/OCF-18 (“plan”) dated October 14, 2020?

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

RESULT

3The applicant is subject to the MIG.

4The applicant is not entitled to the treatment plan in dispute or interest.

ANALYSIS

Background

5Per the respondent, the applicant has exhausted the MIG limits. This means that the only way the applicant will be entitled to the treatment plan in dispute is if he is removed from the MIG. The applicant’s MIG status largely comes down to two questions: (1) do the applicant’s pre-existing medical conditions remove him from the MIG; and/or (2) do the applicant’s psychological diagnoses remove him from the MIG?

The applicant is subject to the MIG

6I find that the applicant is subject to the MIG on the basis that I do not find sufficient medical evidence to support the claim that his pre-existing injuries are preventing maximal recovery under the MIG nor that his psychological concerns merit removal.

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 sequalae to such an injury.”

8An 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 also determined that a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9On question (1) regarding the applicant’s pre-existing medical conditions, the applicant argues that his medical history (much of which is documented in the clinical notes or Dr. Dar, his family physician), which includes right elbow fixation surgery, diabetes mellitus, gastric ulcer, GERD, and cerebral vascular accident (stroke), merit removal from the MIG. He bases this assertion on the opinion of Dr. Nolan (the applicant’s chiropractor) who argues that these conditions will prevent maximal recovery if he is subject to the MIG limits. In particular, Dr. Nolan argues that diabetes can cause injured tissues to take longer to heal.

10The respondent argues that the Superintendent’s Guideline No 01/13 – Minor Injury Guideline specifies that the “vast majority of pre-existing conditions” do not meet the high bar of excluding them from the MIG. It argues that the applicant has not met his onus of demonstrating that these pre-existing health conditions would prevent maximal recovery within the cap imposed by the MIG.

11I find that the applicant’s pre-existing conditions fail to meet the strict standard in the Superintendent’s Guideline. In my view, the applicant has failed to demonstrate how his medical conditions were specifically impacted by the accident or how the applicant’s recovery is impacted by these conditions. Dr. Nolan provides the only medical submissions on why these pre-existing conditions merit removal from the MIG. While I appreciate Dr. Nolan’s comment that diabetes can lengthen tissue recovery time, I do not find this alone to be compelling. This comment speaks broadly to the physiological manifestation of diabetes in some patients, but the medical records do not provide an indication of how this condition impacts the applicant specifically in a way that would substantiate this opinion. Moreover, although tissue recovery time might be lengthened, this does not give me any information on whether more treatment is necessary, how much more, or whether the MIG limits would be insufficient.

12On question (2) regarding psychological impairment, the applicant argues that his provisional psychological diagnoses of situational phobias, depressive episodes, and adjustment disorder (with anxiety) justify his removal from the MIG. He submits that, as a result of the accident and on the basis of a psychological pre-screen by Dr. Mrahar, he suffers from anxiety while driving, flashbacks, anxiety, “death thoughts”, and increased irritability. The OCF-18 submitted by Dr. Mrahar recommended a full psychological assessment to confirm the diagnosis and to develop a plan in response to his concerns.

13The respondent disagreed with the provisional psychological diagnoses offered by Dr. Mrahar. It argues that the applicant has not produced any clinical notes and records to support such a diagnosis and that the applicant did not report experiencing any psychological issues to other treating professionals prior to this proposed treatment plan. Specifically, it points to the clinical notes and records of the family physician, Dr. Dar, and of Pro Life Wellness Centre, which do not document instances of accident-related psychological complaints.

14I find that the applicant has not pointed me to contemporaneous and corroborating evidence that he sustained an accident-related psychological impairment. The lack of contemporaneous medical records to support the provisional diagnoses of Dr. Mrahar is problematic. It is unclear why the applicant did not mention these concerns to his family doctor and how he came to be referred to Dr. Mrahar in the first place. While the applicant did mention feeling depressed to his chiropractor, Dr. Nolan, this was not until May of 2023, more than two years after the provisional findings of Dr. Mrahar and more than three years since the accident. This does not provide contemporaneous evidence to connect his psychological issues with the accident or support the findings of Dr. Mrahar. Ultimately, I do not find that an OCF-18 is sufficient to demonstrate a psychological impairment that would warrant removal from the MIG without other supporting medical documentation.

15Accordingly, I do not find the applicant’s pre-existing medical conditions or accident-related psychological impairments justify his removal from the MIG.

The treatment plan in dispute will not be analyzed as the MIG limits have been exhausted

16Given the $3,500.00 funding limit was previously exhausted, no additional analysis is required to determine if the OCF-18 in dispute is reasonable and necessary pursuant to the Schedule.

Interest

17As no benefits are payable, it follows that no interest is payable under s. 51.

ORDER

18I order that:

i. The applicant is subject to the MIG.

ii. The applicant is not entitled to the assessment plan in dispute.

iii. The applicant is not entitled to interest.

iv. The application is dismissed.