Licence Appeal Tribunal File Number: 23-000880/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:
Maryum Ghauri
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nadia Mauro
APPEARANCES:
For the Applicant:
Marc Golding, Paralegal
For the Respondent:
Michelle Panagiotakos, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Maryum Ghauri, the applicant, was involved in an automobile accident on January 8, 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, Sonnet 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?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from February 7, 2020 to January 7, 2022?
iii. Is the applicant entitled to $4,217.71 for chiropractic services, proposed by Inline Rehabilitation Centre Inc. in a treatment plan (“OCF-18”) submitted December 10, 2020?
iv. Is the applicant entitled to $1,920.52 for psychological services, proposed by Inline Rehabilitation Centre Inc. in an OCF-18 submitted December 10, 2020, and denied November 12, 2021?
v. Is the applicant entitled to $2,486.00 for other good and services, proposed by A&B Medical Assessments in an OCF-18 submitted March 28, 2021?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has sustained predominantly minor injuries as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.
4The applicant is not entitled to non-earner benefits.
5The applicant is not entitled to the treatment plans in dispute, or interest pursuant to s. 51 of the Schedule.
ANALYSIS
Minor Injury Guideline
6I find that the applicant has not established on a balance of probabilities that her injuries warrant removal 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.”
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 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 due to her psychological impairments, physical injuries, and chronic pain.
a) Psychological impairment
10I find that the applicant has not proven, on a balance of probabilities, that she suffers from a psychological impairment that would warrant removal from the MIG.
11The applicant relies on a s. 25 psychological assessment of Ms. Sabrina Simons, MA, and Mr. Valery Kleiman, psychologist, dated February 22, 2021, to demonstrate that she has specific phobia (driver/passenger related) and should therefore be removed from the MIG. To corroborate Ms. Simons and Mr. Kleiman’s diagnosis, the applicant relies on a clinical note and record (“CNR”) of her family practitioner, Dr. Rizwan Shaikh, dated December 11, 2020, wherein the applicant reported “excessive anxiety.”
12The respondent submits that the applicant’s only psychological complaint to Dr. Shaikh was over a year after the accident. The respondent argues that the applicant was thereafter referred to a psychiatrist who opined she did not meet any criteria for a diagnosis and did not require any further follow-up.
13I have reviewed the CNRs of Dr. Shaikh, and the only psychological complaint present post-accident is on January 12, 2021, of which Dr. Shaikh reports the applicant complained of “excessive anxiety and worry about a number of events and activities” and referred the applicant to a psychiatrist. The accident is not mentioned during this attendance. Referred psychiatrist, Dr. Abdulaziz Memon, consulted with the applicant on February 9, 2021, but did not make any psychological diagnosis. Dr. Memon reports that the applicant “does not feel anxiety, does not feel depressed, and does not feel sad or unhappy” and Dr. Memon does not reference the accident. As such, I find that this evidence does not corroborate, but rather contradicts the diagnosis of the s. 25 assessors.
14I am not persuaded by the s. 25 report of Ms. Simons and Mr. Kleinman, given the lack of contemporaneous evidence to support these assessors’ findings. Moreover, the s. 25 report does not indicate if the applicant’s medical record was reviewed. The report only states that, “the assessment included a clinical interview and the administration of psychological self-report questionnaires.”
15The applicant has not directed me to any further compelling contemporaneous evidence. As such, I find that the applicant has not proven, on a balance of probabilities, that she is suffering from a psychological impairment warranting removal from the MIG.
b) Physical injuries
16I find that the applicant has not met her evidentiary onus to demonstrate that she suffers from physical injuries warranting removal from the confines of the MIG.
17As a result of the subject accident, the applicant submits that she has sustained physical injuries such as pain in her right shoulder, sprains/strains to her neck, mid and lower back, and head. The applicant relies on the CNRs of Dr. Shaikh and Dr. Edward Lansang, pain specialist, who diagnosed adhesive capsulitis.
18Other than soft-tissue sprains and strains which fall within the definition of a “minor injury”, the only other accident-related physical impairment the applicant has established is a right shoulder injury. However, I am not satisfied that the applicant has established that her right shoulder injury is non-minor.
19I find that the ultrasound of the applicant’s right shoulder, dated August 5, 2020, revealed right supraspinatus calcific tendinopathy, the right subscapularis tendon is heterogenous, small and not well seen, thickening of the subacromial/ subdeltoid bursa, and suspected degenerative changes of the right AC joint associated with joint effusion. While Dr. Lansang, on February 2, 2021, opined on adhesive capsulitis, I am not directed to evidence that supports that this is a non-minor injury. The evidence indicates that the applicant did not return to Dr. Lansang for follow up, and the CNRs of Dr. Shaikh do not support ongoing complaint of right-shoulder pain beyond December 2020.
20As such, I am not satisfied on a balance of probabilities that the applicant has sustained an accident-related physical injury that falls outside of the definition of a minor injury.
c) Chronic Pain
21I find that the applicant has not proven, on a balance of probabilities, that she suffers from chronic pain with a functional limitation such that she should be removed from the MIG.
22The applicant submits that her physical injuries, such as her right shoulder pain, have become chronic. The applicant relies on Tribunal decisions D.K.M v Aviva General Insurance Company, 2019 CanLII 110115 (ON LAT) (“D.K.M”), B.M v Allstate Insurance, CanLII 101616 (ON LAT) (“B.M”), and M.C v Wawanesa, 2019 CanLII 94035 (ON LAT) (“M.C”) wherein the Tribunal found that the applicant suffered from chronic pain warranting removal from the MIG.
23The respondent submits that the applicant has not demonstrated that she has developed chronic pain syndrome. The respondent further argues that, even if the applicant were to be diagnosed with chronic pain as a result of the accident, she has not provided sufficient evidence to support that the alleged chronic pain limits her functionality.
24A diagnosis of chronic pain or chronic pain syndrome is not required for removal from the MIG treatment limits. However, in the absence of a diagnosis, the applicant must still demonstrate, on a balance of probabilities, that she suffers from accident-related chronic pain that causes functional impairment. In the present case, I find that the applicant has fallen short of meeting her onus in establishing chronic pain with a functional impairment.
25I find that the evidence does not support ongoing complaints of right-shoulder pain and I am not pointed to any accident-related complaint of physical injuries within the CNRs of Dr. Shaikh beyond December 2020. Moreover, neither Dr. Shaikh nor Dr. Lansang opine on chronic pain. Dr. Lansang does not report any functional impairment during his consultation with the applicant on February 2, 2021. Dr. Shaikh’s CNRs are also silent with respect to functional impairments.
26Lastly, I distinguish D.K.M, B.M and M.C, from the present case as I am not persuaded that the applicant suffers from chronic pain with functional impairment, as indicated above. The applicant has the onus of evidencing chronic pain and in the present case, as there are no compelling expert reports or evidence that opines on chronic pain, the applicant has not done so.
27Based on the foregoing, I find that the applicant has not proven, on a balance of probabilities, that she suffers from chronic pain with a functional impairment such that she should be removed from the MIG.
Conclusion
28As a result of the aforementioned, I find that the applicant is subject to the MIG.
29Given that I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
The applicant is not entitled to a NEB
30I find that the applicant is not entitled to a NEB.
31Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
32The applicant submits that she was always entitled to and should have received NEBs as she demonstrated a complete inability to carry on a normal life. The applicant relies on an OCF-3 completed by chiropractor, Dr. Kevin Bar, dated January 20, 2020, which indicates by way of checkbox that the applicant has suffered a substantial inability to perform all essential tasks of her employment, as well as a complete inability to carry on a normal life.
33I find that reliance on an OCF-3 alone is not sufficient to establish entitlement to NEBs. The applicant has not provided submissions of her pre-accident activities of daily living, or more importantly, demonstrated how her engagement in these activities has changed as a result of the accident. Moreover, in her submissions, the applicant did not identify her pre-accident activities or provide evidence of how she is continuously prevented from engaging in said activities as required by Heath. In the absence of this information, I am unable to adequately compare her pre- and post-accident capabilities with respect to the activities she ordinarily engaged in.
34The applicant has not directed me to any additional or compelling evidence that speaks to an impairment that continuously prevents her from engaging in substantially all of the activities she ordinarily engaged prior to the accident. As such, I find that the applicant has not proven, on a balance of probabilities, that she is entitled to a NEB.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, interest is not payable.
ORDER
36I find that:
i. The applicant’s injuries are predominantly minor, therefore, she is subject to the MIG limits;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to non-earner benefits;
iv. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and
v. The application is dismissed.
Released: December 23, 2024
Nadia Mauro
Adjudicator