Citation: Hinds v. Nordic Insurance Company of Canada, 2024 ONLAT 23-001325/AABS

Licence Appeal Tribunal File Number: 23-001325/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:

Keran Hinds

Applicant

and

Nordic Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Marc Golding, Paralegal

For the Respondent:

Leslie Ibouily, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Keran Hinds, (the “applicant”), was involved in an automobile accident on May 8, 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 Nordic Insurance Company of Canada (the “respondent”) 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 $2,000.00 for psychological services, proposed by Downsview Healthcare Inc., in a treatment plan (“OCF-18”) dated November 26, 2019?

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

RESULT

3I find that:

i. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

ii. She is not entitled to the OCF-18, nor interest.

iii. The application is dismissed.

PRELIMINARY ISSUE

The respondent is raising a new preliminary issue of whether the applicant is statute-barred from disputing the denial of the cost of the psychological services

4On August 31, 2023, the parties attended the Case Conference and on consent determined the issues in dispute, which included: whether the MIG is applicable, entitlement to the cost of psychological services, and interest. On September 12, 2023, the Case Conference Report and Order (“CCRO”) was released and reflected that only these issues were in dispute for this hearing. Nowhere in this CCRO; was there any indication that the respondent intended to raise a preliminary issue that the applicant was statute-barred under s. 56 with respect to issue (ii).

5Despite this not being an issue listed as being in dispute in the CCRO, in its submissions, the respondent addresses the preliminary issue of whether the applicant was statute-barred from disputing the denial of the psychological services because the application was not filed within the two year limitation period. The respondent also submits that since the applicant is statute-barred from proceeding forward with the denial of the OCF-18, the Tribunal has no jurisdiction over this application because the MIG will remain as a stand-alone issue.

6Based on the CCRO, I find that there is no preliminary issue in dispute. Further, I find that it would be highly prejudicial to the applicant if the respondent was allowed to raise this new preliminary issue in its responding submissions, as the applicant was deprived of the opportunity to fully consider and prepare for this issue in advance of the hearing. The respondent has not directed me to evidence that shows that it advised the applicant that it would be raising this preliminary issue prior to the hearing, nor did it attempt to bring a motion to add this issue in advance of the hearing.

7Considering the purpose of the Schedule is to provide accident benefits to individuals while balancing the parties’ rights to a fair adjudication of their dispute, I have therefore decided to disallow the new issue raised by the respondent. I find that it would be procedurally unfair to require the applicant to defend against an issue that was not listed in the Order.

ANALYSIS

The Minor Injury Guideline

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

9An insured person 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 from any accident-related minor injury 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.

10In all cases, the burden of proof lies with the applicant. Here, the applicant argues that she should be removed from the MIG on the following three grounds:

i. She has ongoing pain which has become chronic;

ii. She appears to suffer from a concussion and post-concussion syndrome; and

iii. She has psychological impairments.

11The respondent counters that at most the applicant suffered sprain/strain injuries that fall into the Schedule’s definition of a minor injury. The respondent further argues that the applicant has not provided evidence of severe or functionally disabling pain nor did she sustain any psychological injury. As a result, the respondent seeks a finding that the applicant be held within the MIG and its $3,500.00 limit on treatment.

The applicant has not established that she has a concussion and post concussion syndrome

12I find that the applicant has not demonstrated on a balance of probabilities that she has a concussion or post-concussion syndrome as a result of the accident.

13Concussions and post-concussive syndrome, if established, fall outside the MIG because the MIG relates only to “minor injuries”, as defined in section 3(1) of the Schedule and neither condition is in the definition. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, she suffered a concussion or post-concussive syndrome.

14To this end, the applicant relies upon the Disability Certificate (“OCF-3”) completed by Dr. Oleksandr Pivtoran, chiropractor, dated May 13, 2019, to support her position that she appears to have suffered from a concussion and post-concussion syndrome.

15The respondent submits that Dr. Pivtoran is not qualified to make such a diagnosis because he is a chiropractor. It further argues that the applicant has not reported hitting her head, losing consciousness or any post-concussive symptoms to her family physician, Dr. Nasreen Ramji.

16I discount the opinion of Dr. Pivtoran because the diagnoses of a concussion, post-traumatic headache, dizziness, and post-concussion syndrome since neurological conditions are not within his scope of practice. Moreover, the applicant has not referred me to any clinical notes and records (“CNRs”) from Dr. Ramji where she reported symptoms of a concussion, a diagnosis of a concussion or post-concussive syndrome was made, or a referral was made to a specialist.

17Accordingly, I find that the applicant has not met her evidentiary onus to establish on a balance of probabilities that she sustained a concussion and post-concussive syndrome and therefore is not removed from the MIG on this basis.

The applicant has not established that she sustained chronic pain with a functional impairment

18I find that the applicant has not established on a balance of probabilities that she suffers from a chronic pain condition with a functional impairment that would warrant removal from the MIG.

19The applicant argues that she has ongoing pain which has become chronic. To support this position, she relies upon the OCF-3, completed by Dr. Pivtoran, the CNRs of Dr. Ramji, dated May 22, 2019 and March 10, 2020 and the CNRs of Sol Barrie Chiropractic and Essa Road Chiropractic Health Centre.

20The respondent argues that the applicant has not established consistent, compelling, and contemporaneous evidence of chronic pain to warrant removal from the MIG. Rather, the applicant sustained sprain/strain type injuries that fit within the MIG definition. It relies upon the s. 44 independent medical addendum report of Dr. Mohamed Khaled, physician, dated December 20, 2020.

21A 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 demonstrate, on a balance of probabilities, that she suffers from accident-related pain that causes functional impairment. In this matter, I have not been provided with medical evidence to indicate the applicant’s related impairments have resulted in chronic pain with a functional impairment.

22First, the medical evidence of the applicant’s family physician, Dr. Ramji does not establish pain of the duration, severity, and functionally disabling extent necessary to remove her from the MIG. I am alive to the applicant’s reliance upon the CNRs dated May 22, 2019, and March 10, 2020, however I find neither establishes that the applicant should be removed from the MIG on the basis of chronic pain.

23For example, on May 22, 2019, the applicant reported an injury to her right shoulder and low back pain as a result of the accident to Dr. Ramji. Significantly, the applicant also reported that she had been bitten by a dog and sustained an abrasion to her left wrist, which was discussed for a significant portion of the visit. While Dr. Ramji noted that the applicant had difficulty with right internal rotation, he did not provide an opinion of whether this impacted the applicant’s daily activities. Nor, does it appear that Dr. Ramji conducted a physical examination of the applicant. Moreover, Dr. Ramji did not diagnose the applicant with any impairments from the accident, prescribe pain medication or refer her to a specialist. Instead, he recommended Polysporin topical treatment for the dog bite injury to the applicant’s left wrist.

24In my view, the applicant has also not established that the CNR entry of March 10, 2020, is in relation to this accident. I acknowledge that the applicant relies upon this CNR entry to establish that her pre-existing knee pain was exacerbated by this accident. However, I find that on March 10, 2020, Dr. Ramji noted anterior right knee/leg pain and queried a potential dislocation of the patella but there is no reference to the accident, the origin of this knee pain or whether her pre-existing condition was exacerbated by the accident.

25Further, in my view the OCF-3 holds no weight when assessing whether the applicant sustained a minor injury. I acknowledge the applicant relies upon the OCF-3 because Dr. Pivtoran noted that her return to work was not medically recommended and that she was impaired with her activities of daily living. However, an OCF-3 is used to apply for a specified benefit and is not a comprehensive assessment of the injuries sustained in the accident or functional impairments, particularly in the absence of any supporting CNRs. Here, Dr. Pivtoran vaguely opined that the applicant is impaired with her activities of daily living, but provided no clarification on which activities. Nor, did Dr. Pivtoran provide a rationale on how he arrived at this conclusion or whether a physical examination was conducted.

26Likewise, Dr. Pivtoran provided no justification on why it was not medically recommended for the applicant to return to work, other than stating it. Meanwhile, on June 18, 2019, Dr. Ramji opined that the applicant could return to work on a part-time basis, albeit accommodations were required. However, the June 18, 2019, entry did not indicate whether these accommodations were required as a result of the accident, as there is no reference to the accident. Significantly, in the previous entry of May 22, 2019, there was no reference to the applicant being off work as a result of her accident-related impairments. The applicant also did not tender a copy of the CNRs from Dr. Pivtoran, which would have helped to shed some light on how he arrived at his conclusions.

27Finally, the applicant also argues that the CNRs of Sol Barrie Chiropractic and Essa Road Chiropractic Health Centre, establish that she incurred costs of ongoing chiropractic intervention despite being denied by the respondent. However, incurring treatment does not establish that the applicant sustained a non-minor injury, where there was one accident-related visit to Dr. Ramji, minimal evidence of a functional impairment, and by the s. 44 report of Dr. Khaled who opined that the applicant sustained sprain/strain injuries to her left shoulder/arm and mechanical low back pain. On the limited medical evidence available, I see no reason to disagree with this opinion.

28For the reasons described above, I find that the applicant has not established on a balance of probabilities that she suffers from a chronic pain condition with functional impairment warranting removal from the MIG.

The applicant has not established that she should be removed from the MIG on the basis of a psychological impairment

29I find that the applicant has not met her burden of proof to demonstrate that she should be removed from the MIG based on a psychological impairment.

30Psychological impairments are not included in the definition of minor injury pursuant to s. 3 of the Schedule. The onus is on the applicant to establish that she had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.

31The applicant argues that she has been diagnosed with difficulties relating to stress, nervousness, anxiety, sleep disturbance, driving anxiety, and an adjustment disorder by Dr. Pivtoran, Ms. Helen Llios, registered psychotherapist, and Dr. Jacqueline Brunshaw, psychologist.

32Meanwhile, the respondent argues that the applicant did not sustain any psychological injury, and relies upon the s. 44 report of Dr. S. Talebizadeh, psychologist, dated June 9, 2021.

33I have not been referred to CNRs from Dr. Ramji’s office which show that the applicant reported psychological symptoms to him. On May 22, 2019, the applicant reported being involved in the accident and having right shoulder and lower back pain, but she did not complain of psychological symptoms. Similarly, in the March 10, 2020, CNR there is reference to right knee/leg pain, and a potential dislocation of the patella, however there is no reference to psychological symptoms. Nor did Dr. Ramji diagnose the applicant with a psychological impairment, prescribe medicine for this or refer her to a specialist.

34I place no weight on the OCF-3, as in my view, diagnosing psychological conditions is outside of the scope of practice of a chiropractor.

35Finally, when comparing the respective s. 25 and s. 44 reports, I prefer the latter for three reasons.

36First, Ms. Llios, and Dr. Brunshaw, did not review the CNRs of Dr. Ramji, meanwhile Dr. Talebizadeh did. If Ms. Llios and Dr. Brunshaw, had reviewed the CNRs of Dr. Ramji, they would have discovered that the applicant has not reported psychological symptoms to Dr. Ramji from this accident.

37Second, Ms. Llios and Dr. Brunshaw’s conclusions are not supported by the test results, and accordingly I place little weight on the report. For instance, the Beck Depression Inventory testing and Beck Anxiety Inventory testing revealed symptoms of depression in the minimal range and minimal levels of anxiety. The Symptom Checklist-90-Revised also revealed that the applicant did not endorse any items as extremely distressing and that she experienced low levels of emotional distress.

38In my opinion, the psychological test scores cannot be disregarded without a persuasive justification as to why the psychologist finds the scores unreliable. Here, I find that Ms. Llios and Dr. Brunshaw vaguely opined that the applicant’s self-reporting of occasional fear/anxiety when travelling in a vehicle, sleep difficulties, and memory difficulties during the clinical interview suggested that her current psychological and emotional distress is more significant than what was represented in her test responses. However, the applicant reported sleeping and memory difficulties during the Beck Depression Inventory and the Symptom Checklist-90-Revised testing, which both revealed minimal symptoms of depression and low levels of emotional distress. Neither Ms. Llios nor Dr. Brunshaw addressed why the clinical interview should be preferred over the psychometric testing when the applicant reported sleeping and memory difficulties during the testing, and both testing revealed minimal symptoms of depression and low levels of emotional distress irrespective of these difficulties. Likewise, they did not address why occasional fear/anxiety of travelling in a vehicle supports a diagnosis of an adjustment disorder.

39Third, Dr. Talebizadeh’s conclusion that the applicant did not meet the diagnostic criteria for any psychological disorder is more consistent with the medical record, like the records of Dr. Ramji, which does not reflect reports of psychological symptoms, and psychological impairments.

40For the reasons set out above, I find that the applicant has not established on a balance of probabilities that she has a psychological impairment that warrants removal from the MIG.

41Having found that the applicant sustained a predominantly minor injury, it follows that she is subject to the MIG and the $3,500.00 funding limit on treatment. Therefore, an analysis of whether the disputed OCF-18 is reasonable and necessary is not required.

ORDER

42For the reasons outlined above, I find that:

i. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

ii. She is not entitled to the OCF-18, nor interest.

iii. The application is dismissed.