Citation: Yousif v. Economical Insurance Company, 2024 ONLAT 22-001352/AABS

Licence Appeal Tribunal File Number: 22-001352/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:

Maryam Yousif

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Kateryna Vlada, Counsel

For the Respondent:

Paolo Negro, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Maryam Yousif (the “applicant”) was involved in an automobile accident on October 4, 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 Economical Insurance Company (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:

1. 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 limit? (“MIG”)

2. Is the applicant entitled to $1,920.53 for psychological services, proposed by Inline Rehabilitation Centre Inc., in a treatment plan/OCF-18 (“OCF-18”) submitted on January 29, 2020, and denied on February 11, 2020?

3. Is the applicant entitled to $3,948.91 for physiotherapy services, proposed by Inline Rehabilitation Centre Inc., in an OCF-18 submitted on February 12, 2020, and denied on February 12, 2020?

4. Is the applicant entitled to $2,519.00 for psychological services, proposed by Inline Rehabilitation Centre Inc., in an OCF-18 submitted on February 19, 2020, and denied on February 24, 2020?

5. Is the applicant entitled to $3,421.65 for physiotherapy services, proposed by Inline Rehabilitation Centre Inc., in an OCF-18 submitted on January 14, 2021, and denied on January 26, 2021?

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

RESULT

3I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the funding limit of the MIG.

ii. As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted. As no benefits are payable, the applicant is not entitled to interest.

Procedural Issue

The respondent’s revised submissions, filed on October 16, 2023, will be considered by the Tribunal instead of its initial submissions

4Under Rule 3.1 of the Licence Appeal Tribunal Rules, 2023, (“the Rules”), to allow effective participation of the parties, I permit the respondent’s revised 10-page submissions to stand. I will not consider the respondent’s original 25-page submissions.

5Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal. At the same time, under Rule 3.1 of the Rules, the Tribunal will interpret the Rules liberally to facilitate a fair, open, and accessible process and to allow effective participation by all parties.

6The Case Conference Report and Order (“CCRO”), released on February 18, 2023, was clear that the page limit for initial submissions was 10 pages.

7The applicant filed her submissions, which were 10 pages in length, on September 20, 2023.

8On October 4, 2023, the respondent filed its submissions which were 25 pages in length (150% over the permitted page limit as per the CCRO).

9The applicant raised the issue of the respondent’s non-compliance with the CCRO in her reply submissions. She submits that despite the 10-page limit as mandated by the Tribunal, the respondent submitted 25 pages. The applicant further submits that she has been prejudiced as the respondent’s actions undermine fairness/efficiency of the adjudicative process, threatens an inequality of arms, imposed an additional burden on her and increased the risk of omission in her response. As a result, the applicant seeks relief from the Tribunal to only consider the initial 10 pages of the respondent’s submissions, in particular paragraphs 1 to 45.

10After receiving the reply submissions, on October 16, 2023, the respondent filed revised submissions, 10 pages in length, in accordance with the CCRO. The respondent’s representative advised via email on October 16, 2023, that due to inadvertence, he submitted more than 10 pages, as he was recently transferred to the file. Moreover, the respondent argues that the revised submissions are substantially the same as the original submissions, and nothing new has been added. Lastly, the respondent submits that it has consented to the applicant filing reply submission in response to its revised submissions any time prior to the hearing commencing.

11In accordance with Rule 3.1 of the Rules, I must ensure that the Rules are liberally interpreted to ensure procedural fairness to both parties, and the efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal. Here, the respondent consented to the applicant providing further reply submissions in response to its revised submissions up to the date of the hearing, but the applicant chose not to do so. When weighing procedural fairness and any potential prejudice brought, I find the scales tip in favour of the respondent. The respondent would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded in this matter, especially since it has rectified the error.

12I also do not find that the applicant would be prejudiced if the respondent’s revised submissions were considered, since they do not contain new evidence/submissions that were not already included in the initial submissions.

13In conclusion, I will permit the respondent’s revised submissions of 10-pages to be considered instead of its initial submissions.

ANALYSIS

The Minor Injury Guideline

14Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

15An 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 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.

16In all cases, the burden of proof lies with the applicant.

17The applicant submits she should be removed from the MIG on the following grounds:

i. She has “functionally disabling” chronic pain;

ii. She has neurological and cognitive deficits;

iii. An MRI of her lumber spine, dated July 2, 2021, revealed: right paracentral and foraminal disc protrusion at L4-L5, resulting in narrowing of the right lateral recess; and

iv. She was diagnosed with psychological impairments such as a specific phobia, situational (driving and passenger related).

18In response, the respondent submits that the applicant has not met her evidentiary onus to establish that her accident-related impairments fall outside of the MIG.

The applicant has not established chronic pain warranting removal from the MIG

19I find that the applicant has not met her burden to prove that she suffers from a chronic pain condition, that would warrant removal from the MIG.

20The applicant submits that as a result of the accident, she sustained injuries to her neck, shoulders, back, hip, thigh and leg. Furthermore, she submits that she has reported her ongoing pain to her family physician, Dr. Nadin Alo.

21The respondent submits that the applicant has not been diagnosed with chronic pain, by an expert or her treating practitioners. It relies upon the s. 44 reports of Dr. Alborz Oshidari, physiatrist and Dr. Mark D’Souza, family physician, dated March 26, 2020, and March 2, 2021.

22A diagnosis of chronic pain or chronic pain syndrome is not strictly 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 persuasive medical evidence to indicate the applicant’s accident-related impairments have resulted in chronic pain with functional impairments.

23First, the applicant only reported accident-related pain to Dr. Alo until January 2020. The applicant submits that she has consistently reported her accident-related pain, however I disagree. The records show that on October 9, 2019, October 15, 2019, and January 7, 2020, the applicant reported that since the accident, she has right sided back pain, hip pain, thigh pain, leg pain, and lower back pain. As a result, Dr. Alo diagnosed her with muscle strain/back pain as a result of the accident and noted that the applicant’s gait and range of motion were normal.

24After January 2020, the applicant met with Dr. Alo on 12 separate occasions from March 11, 2020, to February 16, 2021, for visits unrelated to the accident. This is contrary to the applicant’s submission that she was unable to see her family physician until the spring of 2021 due to the COVID-19 pandemic.

25Second, the applicant’s pain-related visits from April 19, 2021, to October 28, 2022, are unrelated to the accident, due to the large gaps in reporting this pain and Dr. Alo did not link this pain to the accident.

26For example, while, the applicant reported shoulder, back, flank, and left knee pain on April 19, 2021, May 3, 2021, July 5, 2021, July 9, 2021, July 28, 2021, August 18, 2021, September 25, 2021, October 23, 2021, October 26, 2022, and October 28, 2022, there was no reference to the accident whatsoever. Indeed, the entries also noted that there was “no fall, no trauma”, which caused the pain, and more importantly, Dr. Alo noted that the pain was either “sudden” or “acute”.

27Moreover, while I acknowledge that on August 18, 2021, the applicant self-reported to Dr. Alo that her back pain had been exacerbated and she requires a sick note, once again, Dr. Alo did not link this pain to the accident.

28I place significant weight on Dr. Alo’s medical opinion that the pain was sudden or acute, and no link being established for the subject accident, as the cause. In my view, if Dr. Alo believed that the pain was related to the accident, this would have been mentioned in the records, like he did in his previous entries of October 9, 2019, October 15, 2019, and January 7, 2020.

29Third, despite, the applicant arguing that she has “functionally disabling” chronic pain, she provided no submissions on what exact functional limitations resulted from her alleged chronic pain. In any event, I have reviewed the evidence, and I am not persuaded, that the applicant has an ongoing functional impairment or disability as a result of accident-related pain.

30As noted above, aside from one note from Dr. Alo that the applicant should remain off work for one week, there were no further recommendations from Dr. Alo that the applicant could not work, attend school, or complete daily activities as a result of the accident. I also acknowledge that the applicant self-reported on January 7, 2020, that walking, sitting, and lifting exacerbates her pain, and that she is unable to sleep, however, once again, Dr. Alo did not opine that the applicant’s functionality was affected.

31On March 26, 2020, the applicant self-reported to s. 44 assessor, Dr. Oshidari, that she was completely independent with her activities of daily living, albeit she required assistance on “bad days”. Moreover, on March 2, 2021, the applicant reported to Dr. D’Souza, that she was independent with personal care tasks, and that her social/recreational activities had not changed since the accident, albeit she stopped housekeeping tasks, and had not returned to work since the accident.

32I place limited weight on this self-reporting, as the applicant has not provided objective evidence, like an employment file, or a medical opinion from Dr. Alo that supports she has these self-reported functional limitations from her accident-related pain. Accordingly, I accept Dr. Oshidari’s conclusion that the objective findings did not support the applicant’s subjective complaints of pain and limitation of function.

33For these reasons, I find that the applicant has not met her evidentiary onus that she has accident-related chronic pain to warrant removal from the MIG.

The applicant is not removed from the MIG on the basis of neurological and cognitive deficits

34I find that the applicant has not established that she has a neurological or cognitive deficit, as a result of the accident.

35The applicant submits that she sustained neurological and cognitive deficits, including headaches and memory issues from the accident. To support her position, she relies on the Ambulance Call Report, and the records of Etobicoke General Hospital.

36The respondent submits that the applicant only complained of headaches once at Etobicoke General Hospital following the accident.

37The records of Etobicoke General Hospital and the Ambulance Call Report do not support that the applicant has either a neurological or cognitive impairment. While the applicant self-reported that she had headaches in the emergency department at Etobicoke General Hospital, she was not diagnosed with a neurological or cognitive impairment from this accident. In fact, these records indicate that the applicant was alert, did not lose consciousness, and there is no indication that the applicant sustained either a neurological or cognitive impairment. Thus, these records fail to support that the applicant has either a neurological or cognitive impairment as alleged.

38Similarly, the records of Dr. Alo also do not support the applicant’s position. The records indicate that following the accident, the applicant did not once complain of neurological/cognitive symptoms. Dr. Alo also did not diagnose the applicant with neurological/cognitive impairments, nor did she refer her to a specialist.

39Lastly, I place no weight on the diagnosis of a mild cognitive disorder, and chronic post-traumatic headaches by Dr. Kevin Bar, chiropractor, as diagnosing these neurological conditions is outside the scope of practice of a chiropractor. Moreover, Dr. Bar’s diagnosis of chronic post-traumatic headaches is not supported by the medical record, like the lack of complaints of headaches/memory issues to Dr. Alo.

40Accordingly, I find that the applicant has not met her burden to demonstrate that she sustained a neurological or cognitive impairment, as such, she is not removed from the MIG on this basis.

The applicant is not removed from the MIG on the basis of a right paracentral and foraminal disc protrusion

41I find that the applicant has failed to demonstrate that the diagnoses as outlined in the MRI, of the lumbar spine, dated July 2, 2021, are related to this accident.

42The applicant submits that she was diagnosed with a right foraminal disc protrusion resulting in the constriction of the right lateral recess at the L4-L5 level. Her position is that these diagnoses are not captured within the MIG.

43The respondent submits that the applicant has not produced evidence from a treating physician or expert indicating that the disc protrusion was caused by the accident.

44I agree with the respondent. I acknowledge that the MRI of the Lumbar Spine, dated July 2, 2021, revealed a right paracentral and foraminal disc protrusion at L4-L5, resulting in narrowing of the right lateral recess. However, the applicant has not directed me to a medical opinion that establishes a connection between these results and the subject accident.

45For instance, when on July 5, 2021, Dr. Alo reviewed the MRI results and diagnosed the applicant with disc prolapse, and sciatica, there is no reference to the subject accident, or whether the accident played a factor. Also, on July 9, 2021, Dr. Alo noted that the applicant had “acute” lower back pain with radiculopathy, and once again, there was no reference to the accident.

46I am also persuaded by the s. 44 report of Dr. Oshidari, who conducted his assessment approximately a year before the MRI results. Dr. Oshidari conducted a physical examination and concluded that he was unable to detect a sign of lumbar radiculopathy or plexopathy. In my interpretation, this further supports my finding, that the MRI results are unrelated to the subject accident, as this examination by Dr. Oshidari was conducted five months after the accident. Meanwhile, the MRI was conducted nearly a year and half after the accident, and as noted above, there was a significant gap in pain reporting to Dr. Alo. The applicant has also not produced a medical opinion to refute Dr. Oshidari’s findings.

47Based on the totality of the evidence before me, I find that the applicant has not established that the MRI results, dated July 2, 2021, are connected to this accident.

The applicant has not established that she has psychological impairments from this accident

48I find that the applicant has not established that she has a psychological impairment, which would warrant removal from the MIG.

49The applicant submits that she was diagnosed with specific phobia, situational (driving and passenger related), which are psychological impairments, and thus, are not captured within the definition of a minor injury. The applicant further argues that she was provisionally diagnosed with depression and anxiety. To support her position, the applicant relies on the ambulance call report and a s. 25 psychological assessment report, by Ms. Snezana Djuric, qualifying psychotherapist, and Dr. Valery Kleiman, psychologist, dated February 10, 2020.

50The respondent submits that the applicant never reported a psychological injury to her family physician, Dr. Alo, despite consulting with her 44 times between October 9, 2019, to November 12, 2022. To this end, the respondent relies upon its s. 44 psychological assessment reports completed by Dr. Rod Day, psychologist, dated March 26, 2020, and March 2, 2021.

51I find that the applicant has not established that she has a psychological impairment warranting removal from the MIG.

52First, the ambulance call report, does not establish that the applicant has a psychological impairment. I acknowledge that the paramedics noted that the applicant appeared emotional and upset, however, the applicant did not advise the physicians at Etobicoke Hospital of any psychological symptoms from this accident. Nor was she diagnosed with a psychological impairment, prescribed medicine for this, or referred to a psychologist/psychiatrist.

53Second, the records of Dr. Alo do not indicate that the applicant reported psychological symptoms despite seeing her on numerous occasions. Moreover, Dr. Alo, did not diagnose the applicant with a psychological impairment, prescribe medicine for this or referred her to a specialist.

54Finally, when comparing the respective s. 25 and s. 44 reports, I prefer the latter for three reasons. First, Ms. Djuric, and Dr. Kleiman, did not review the medical record, in contrast, Dr. Day did.

55Second, Ms. Djuric and Dr. Kleiman’s conclusions are not supported by the test results, and accordingly I place little weight on the report. For example, the Pain Patient Profile revealed that the applicant had fewer symptoms of depression than the average pain patient. Both, the Beck Depression Inventory- Second Edition and the Beck Anxiety Inventory revealed mild/minimal scores for depression and anxiety. Significantly, the Driving and Riding Avoidance Scale and the Driving Cognitions Questionnaire revealed that the applicant had mild driving and riding avoidance behavior and showed no accident-related concerns.

56In my opinion, the psychological test scores cannot be disregarded, without a justification as to why the psychologist finds the scores unreliable. Here, Ms. Djuric and Dr. Kleiman provided no explanation on how they arrived at their diagnosis of specific phobia, situational (driving and passenger related), when the test results revealed mild driving/riding avoidance behavior, and the Driving Cognitions Questionnaire revealed no accident-related concerns.

57Third, Dr. Day’s conclusion that the applicant did not have a psychological impairment directly related to the accident is more consistent with the medical record, like the records of Dr. Alo, which does not reflect reports of psychological impairments.

58I also take note that the applicant referred me to the authority of 17-005791 v. Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT) to support her position that documented psychological symptoms, even without a diagnosis, warrant removal from the MIG. I am not bound by this authority, and I note that the facts in that matter are clearly distinguishable from the facts before me. In 17-005791 v. Aviva Insurance Canada, the applicant reported psychological symptoms to her family physician and was diagnosed with a psychological impairment that was accepted by the Tribunal. In the matter before me, the applicant has not even once complained of psychological symptoms to her family physician.

59Lastly, contrary to the applicant’s argument, Ms. Djuric and Dr. Kleiman did not provisionally diagnose the applicant with depression or anxiety. As noted above, the psychological testing revealed scores for depression/anxiety in the mild/minimal range.

60To summarize, the applicant has not established on a balance of probabilities that she has an accident-related psychological impairment that warrants removal from the MIG.

The applicant is not entitled to the OCF-18s in dispute as the full MIG limits have been exhausted

61Given the entire $3,500.00 funding limit under the MIG have been exhausted, no additional analysis is required to determine if the OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.

The applicant is not entitled to interest pursuant to s. 51 of the Schedule

62As there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

63For the reasons outlined above, I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the funding limit of the MIG.

ii. As the full MIG limits on medical benefits have been exhausted, an analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted. As no benefits are payable, the applicant is not entitled to interest.

iii. The application is dismissed.