Licence Appeal Tribunal File Number: 22-001691/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:
Sameah Yousef
Applicant
and
Wawanesa Insurance
Respondent
DECISION
VICE-CHAIR: Jeremy A. Roberts
APPEARANCES:
For the Applicant: Jeremy Magence, Counsel
For the Respondent: Nolan Cattell, Counsel
HEARD: In Writing
OVERVIEW
1Sameah 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) limits?
ii. Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from February 10, 2020 to November 24, 2021?
iii. 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?
iv. Is the applicant entitled to $2,799.48 for chiropractic services, proposed by Pro Life Wellness Inc., in a plan dated May 31, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not subject to the MIG.
4The applicant is entitled to the proposed chiropractic treatment plan and interest on this plan.
5The applicant is not entitled to an NEB or a psychological assessment.
ANALYSIS
The applicant is not subject to the MIG
6I find that the applicant falls outside the MIG as a result of experiencing chronic pain and associated functional impairments which necessitate further treatment outside the MIG limits.
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. Chronic pain also constitutes a non-minor injury if it is chronic pain syndrome or pain that is continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability. The Tribunal has also determined that a psychological condition may warrant removal from the MIG. In all cases, the burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.
9The applicant argued that she should be removed from the MIG because: (1) she has a pre-existing knee injury that prevents maximal recovery under the MIG; (2) she suffers from chronic pain which cause her functional impairments; and (3) she has psychological diagnoses which do not fall under the MIG. In supporting her position, the applicant relies on the medical records of family physicians Dr. Dar and Dr. Vania as well as the psychologist at Pro Life.
i. The applicant argues that Dr. Dar’s clinical notes and records show that she suffered from knee pain prior to the accident, which impacted her ability to climb stairs. Following the accident, Dr. Dar’s records show that the knee pain persisted and worsened, impacting her ability to bend and lift. She argues that this constitutes a pre-existing injury which prevents maximal recovery under the MIG.
ii. The applicant argues that Dr. Vania reported that the applicant “sustained a chronic cervical and lumbar strain as a result of the accident”, which have “adversely affected her ability to carry on with her usual household duties and care for her family in her usual fashion”. She argues that this supports her position that she is suffering from chronic pain and associated functional impairments as a result of the accident.
iii. Finally, the applicant argues that in a proposed treatment plan for a psychological assessment, a psychologist at Pro Life provisionally diagnosed the applicant with post-traumatic stress disorder (PTSD), adjustment disorder (with mixed anxiety and depressed mood), and situational phobia related to driving in a car. The applicant argues that these diagnoses fall outside the conditions listed under the MIG.
10The respondent argues the applicant’s injuries all fall under the MIG. It argues that the applicant’s knee impairment does not meet the high threshold established by the Tribunal for demonstrating that a preexisting condition prevents maximal medical recovery within the MIG. Pursuant to the Superintendent’s Guideline No 01/13 – Minor Injury Guideline, the “vast majority of pre-existing conditions” do not meet the high bar of excluding them from the MIG. The respondent relies on the independent examination (IE) report of Dr. Marchie, who opined that the applicant’s pain symptoms may have been temporarily exacerbated by the accident, but that they were not preventing maximal recovery. Further, the respondent argues that chronic pain is not at issue here because, as Dr. Marchie states, the applicant has achieved maximum medical improvement from the accident-related soft tissue injuries and further therapy would not provide any significant improvement. Lastly, the respondent argues that the psychological symptoms listed in the psychological pre-screen were not mirrored in any other contemporaneous medical records, calling into question the severity and cause of these alleged symptoms.
11In considering submissions from the parties, I agree with the applicant that her chronic pain and associated functional impairments merit removal from the MIG. I find the reports of Dr. Vania compelling. These reports indicate that the applicant did not suffer from significant pain in her neck or back prior to the accident, but that she continuously reports sustained pain in these regions since the accident. The doctor also provides evidence of functional impairments around housekeeping, including needing assistance from her children to complete laundry due to the number of stairs in her residence (which was affected by her knee impairments). This is supported by evidence from Pro Life, which also indicates that treatment has produced some noticeable benefits for the applicant. Because of this, I am not satisfied by Dr. Marchie’s conclusion that further therapy would not provide significant improvement – particularly because Dr. Marchie did not have the benefit of reviewing the clinical notes and records of Pro Life prior to his report. Had Dr. Marchie had the benefit of these clinical notes and records, I find it likely that he would have found the applicant had received therapeutic benefit due to treatment.
12Given this, I find that the applicant has demonstrated on a balance of probabilities that she should not be subject to the $3,500 limit of the MIG as a result of her accident-related impairments.
The applicant is not entitled to a psychological assessment
13I find that the applicant is not entitled to the proposed psychological treatment plan as a result of a lack of compelling medical evidence suggesting her psychological symptoms are a result of the accident.
14The issue in dispute is a medical and rehabilitation benefit. Sections 14 and 15 of the Schedule state than an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Section 16(1) of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into his or her family, the rest of society or the labour market.
15The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary and that the impairments are accident related. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable. To establish causation, pursuant to Sabadash vs. State Farm et al., 2019 ONSC 1121, the applicant must establish that her impairments would not have occurred “but for” the accident.
16The applicant argues that she is entitled to a psychological assessment as a result of a pre-screen interview she received from a psychologist at Pro Life Wellness which identified psychological symptoms. Specifically, the psychologist diagnosed the applicant with PTSD, adjustment disorder, and situational phobia. An assessment was recommended to “identify possible impairments, provide a diagnosis as well as to ascertain whether or not psychological intervention would help […] to manage the psychological sequelae elicited by the accident”.
17The respondent argues that the applicant is not entitled to a psychological assessment because the provisional findings of the psychological pre-screen are not supported by the contemporaneous medical records. Specifically, it argues that the applicant has failed to demonstrate how the psychological issues she is experiencing were caused by the accident. It points to the fact that the applicant did not report experiencing any psychological issues or conditions to her family doctor until April 5, 2022, two-and-a-half years after the accident.
18I agree with the respondent. I do not find that the applicant has met her onus in demonstrating that the proposed psychological assessment is reasonable and necessary because there is limited evidence to suggest that her psychological impairments are accident related. I find the fact that the applicant did not mention any psychological impairments to her family doctor in the two-and-a-half-year period following the accident severely weakens her case for entitlement to this benefit. Given this, I am not satisfied that the applicant met her onus of demonstrating on a balance of probabilities that the psychological impairments would not have been present “but for” the subject motor vehicle accident.
The applicant is entitled to the chiropractic treatment plan
19I find that the applicant is entitled to the proposed chiropractic treatment plan as medical evidence demonstrates that it is reasonable and necessary and may help manage pain symptoms.
20The test for entitlement is the same as the test for the previous treatment plan.
21The applicant argues that she is entitled to a chiropractic treatment plan as a result of ongoing knee, back, and neck pain she experiences. She relies on the records of Dr. Vania and health professionals at Pro Life who documented her ongoing pain symptoms. She argues that the medical records show that she experiences some therapeutic benefits as a result of physical therapy.
22The respondent argues that the applicant has suffered uncomplicated soft tissue injuries which should have recovered by now. It again relies on the findings of Dr. Marchie, who opined that “therapy will not provide any significant improvement of the reported symptoms”.
23I agree with the applicant. The goals of the treatment include reduction in pain, muscle tightness, and joint stiffness and increased strength and range of motion. Given that the treatment has helped in the past, I find these to be reasonable goals. I find Dr. Marchie’s opinion unconvincing given the medical records from Pro Life demonstrate that the applicant has experienced benefits from therapy, including reduced pain symptoms. As such, I find that this proposed treatment plan is reasonable and necessary because it can reasonably be expected to help the applicant manage her pain.
The applicant is not entitled to an NEB
24I find that the applicant is not entitled to an NEB because she has not met her burden of demonstrating that she suffers a complete inability to carry on a normal life.
25Section 12 of the Schedule provides that an insurer shall pay for a NEB to an insured who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of that accident within 104- weeks. Sections 12(3)(a) and (c) further state that the insurer is not required to pay a NEB for the first four weeks after the onset of the disability and for any period more than 104 weeks after the accident.
26The applicant argues that she is entitled to an NEB because she suffered a complete inability to carry on a normal life as a result of her accident-related injuries. Specifically, the applicant points to the fact that she was limited in her activities of daily living prior to the accident as a result of her knee injuries and that after the accident her situation worsened. She relies on the clinical records of Dr. Dar, which chronicle her difficulties with housekeeping and childcare activities, which are also referenced in her Ontario Disability Support Program application.
27The respondent argues that the applicant has failed to meet her onus in establishing that she suffers a complete inability to carry on a normal life. Specifically, it points to the clinical notes of the applicant’s family doctor, Dr. Vania, who opined in correspondence of March 20, 2023 that the applicant “had not suffered a complete inability to carry on a normal life as a result of the motor vehicle accident”.
28I agree with the respondent. I find that the applicant has not met her onus in proving that she suffers a complete inability to carry on a normal life. I do not have sufficient information about her activities of daily living prior to the accident to sufficiently gauge the differences pre- and post-accident as a result of her impairments, as required by the Heath v. Economical, 2009 ONCA 391 test. Moreover, the medical records are not helpful, as although Dr. Vania does comment on the applicant’s difficulties with household duties, she ultimately concludes that it does not rise to the level of “complete inability to carry on a normal life”. Given this, I am not satisfied that the applicant has met her onus and she is therefore not entitled to an NEB.
The applicant is owed interest on the chiropractic treatment plan
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is owed interest on the chiropractic treatment plan.
ORDER
30I order the following:
i. The applicant is not subject to the MIG.
ii. The applicant is not entitled to an NEB.
iii. The applicant is not entitled to the proposed psychological assessment.
iv. The applicant is entitled to the proposed chiropractic treatment plan.
v. The applicant is owed interest on the proposed chiropractic treatment plan.
Released: January 24, 2024
__________________________
Jeremy A. Roberts
Vice-Chair