Khalil v. Scottish and York Insurance Co., 2024 CanLII 72665

Citation: Khalil v. Scottish and York Insurance Co., 2024 CanLII 72665

Licence Appeal Tribunal File Number: 22-006848/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:

Rehab Khalil

Applicant

and

Scottish and York Insurance Co.

Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Mohamed M.D Doli, Counsel

For the Respondent: James Brown, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ms. Rehab Khalil (hereinafter referred to as the applicant), was involved in an automobile accident on June 4, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Scottish and York Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

Preliminary Issue

2The respondent has filed a notice of motion seeking to exclude the Independent Pain Medicine Assessment Report of Dr. Ta, dated April 13, 2023, from evidence based on the applicant’s failure to disclose the report in accordance with para. 5 of the Case Conference Report and Order, dated March 10, 2023.

3The applicant indicates that they did not intend to withhold the document from the respondent. The applicant also indicates that she was under the assumption that the report was provided on April 17th, 2023. Finally, the applicant attributes the lack of adherence to the Case Conference Report and Order was due to an administrative error.

4In review of the Case Conference Report and Order, I have considered the reasons provided by the applicant. I do not find that administrative error rises to the level of reasoning for Dr. Ta’s report to be filed late on November 8, 2023 with is well over two months past the agreed upon deadline.

5I find that the Independent Pain Medicine Assessment Report of Dr. Ta was not provided in the agreed timeframe of the Case Conference Report and Order and will therefore be removed from evidence.

ISSUES

6The 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 September 27, 2019 to July 3, 2021?

iii. Is the applicant entitled to $1,268.35 for physiotherapy services, proposed by Prime Physio Plus in a treatment plan/OCF-18 (“plan”) dated January 6, 2020?

iv. Is the applicant entitled to $1,959.04 for physiotherapy services, proposed by Prime Physio Plus in a plan dated August 5, 2021?

v. Is the applicant entitled to $3,850.00 for psychological services, proposed by Mr. Ghassan Arabieh in a plan dated September 7, 2021?

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

RESULT

7I find that:

i. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG.

ii. The applicant has failed to demonstrate that she is entitled to Non-Earner Benefits.

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 impairments that are predominantly minor injuries. 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 it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

10The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. In this instance, the applicant submits that she should be removed from the MIG due to a pre-existing injury, chronic pain and psychological impairments.

11The respondent argues that the applicant has not met the burden of proof that her injuries from the motor vehicle accident were more than minor injuries and that it has worsened her pre-existing injury. The respondent also disputes that the applicant suffers from chronic pain or a psychological condition not defined as a minor injury in the Schedule.

12I find that the applicant has not met her onus and demonstrated that her accident-related impairments warrant removal from the MIG on any of the grounds identified.

The applicant does not suffer from a pre-existing injury

13I do not find that the applicant suffers from a pre-existing injury.

14An 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.

15The applicant submits that the accident exacerbated her pre-existing injury, but she does not direct me to sufficient medical evidence indicating that her pre-existing condition precludes her recovery within the MIG.

16The evidence submitted by the applicant does show a pre-existing injury to her back. The applicant had lower back surgery of lumbar vertebral fusion on her spine located at L5-S1 in Saudi Arabia in October 2013. In addition, the clinical notes and records of Dr. Salman, reports by the applicant on back pain. Contrasting this evidence of a pre-existing injury that would preclude the applicant’s recovery in MIG is the affidavit of the applicant in which she indicates that she began to feel better and was fully functional when the motor vehicle accident occurred.

17CNRs for Dr. Salman has several entries regarding the applicant reporting back pain. This includes completing a form for the applicant for the Ontario Disability Support Program. Specifically, in the CNRs dated January 9, 2020, Dr. Salman attributes the neck and back pain that the applicant suffers to her breast size and not the motor vehicle accident. This is reinforced in the CNRs on January 11, 2020, of Dr. Nodwell, referring the applicant for breast reduction surgery because her breast size is causing her neck and back pain. What I was unable to find in the CNR is compelling medical evidence to show that the applicant’s pre-existing back pain would preclude her recovery in MIG.

18The Insurer’s Examination of Dr. Greg Jaroszynski, completed on September 7, 2021, indicates that the injuries suffered in the motor vehicle accident were soft tissue injuries. The IE goes on to state that the applicant does not have traumatic accident-related impairments that would necessitate any further treatments and the plans under dispute are not considered reasonable or necessary.

19Dr. Jaroszynski reviewed additional medical documentation on December 20, 2021. These documents included x-rays and MRIs done on the applicant between August 11, 2014 to August 11, 2019. He states that review of the additional records did not change his original opinion.

20In review of the evidence, why there is documentation of the applicant having pre-existing back pain, I was not directed to compelling medical evidence that spoke to this pre-existing back pain would preclude her recovery in MIG. This conclusion is supported by the Insurer’s Exams submitted by the respondent that opined the applicant could recover in MIG due to the nature of the injuries. Finally, the applicant herself in her affidavit states she was fully functional at the time of the accident.

21Accordingly, the applicant has not substantiated that a pre-existing injury precludes her recovery within the MIG.

The applicant does not suffer from chronic pain

22I do not find that the applicant suffers from chronic pain which warrants removal from the MIG.

23The applicant bases her chronic pain argument largely on the American Medical; Association’s (AMA) Guidelines. While the test in the AMA Guides is not binding, this Tribunal has long held that it provides a helpful tool for the evaluation of chronic pain. the AMA Guides establishes that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
2. Excessive dependence on health care providers, spouse, or family.
3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
4. Withdrawal from social milieu, including work, recreation, or other social contracts.
5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

24The applicant argues that she meets three of the six criteria. Namely, she has an impairment performing her current duties, is no longer able to socialize at her pre-accident level, and her low mood, anxiety, phobia and disturbed sleep interfere with her activities.

25Based on the preliminary issue, the applicant has not directed me to compelling medical evidence supporting these claims beyond self reporting by the applicant.

26The Insurance Examiners Occupational Therapist’s report completed by Deanne Evens on November 15, 2021, refutes the claims made by the applicant in regards to her current state. The report notes that in the opinion of the OT, “Ms. Khalil was observed to have the ROM, strength and activity tolerance to compete or partially compete her activities of daily living.” It also states, “Ms. Khalil continues to engage in substantially all of the activities in which she normally engaged prior to the subject accident.”

27The applicant has not submitted compelling medical evidence that she suffers from chronic pain. The respondents Insurer’s Exams did not find evidence of chronic pain and refutes the self reporting of the applicant in association with her argument based on the AMA Guidelines.

28The applicant has not demonstrated that she suffers from chronic pain with a functional impairment.

The applicant does not suffer from psychological condition

29I do not find that the applicant suffers from a psychological condition which warrants removal from the MIG.

30The applicant bases her argument on the psychological assessment completed by Ghassan Arabieh, Registered Psychotherapist, and Supervised by Dr. Brenda Saxe, a registered Psychologist.

31The respondent bases its argument on two assessments completed by Dr. Nemeth.

32On August 28, 2021, Mr. Arabieh completed a psychotherapy assessment under the supervision of Dr. Saxe. The assessment was comprised of a clinical interview and psychometric testing. The test results in the psychometric testing for the Patient Health Questionnaire, were severe depression. On the World Health Organization Disability Assessment, the applicant scored severe or extreme in all the measures. On the PTSE Checklist, the applicant ranked as severe traumatic reactions. Finally, in the Detailed Assessment of Posttraumatic Stress, the results were severe posttraumatic stress disorder.

33What I did not see in the report, was a tie between the very extreme results found and the applicant’s daily life. Also in the report, there are several inconsistencies regarding the facts associated with the accident and the working status of the applicant. For example, the report indicates that the applicant worked as a hairstylist until quitting because of pain. I do not see that this reasoning for quitting is anywhere else in the evidence submitted.

34An Insurer’s Examination was completed by Dr. Rhonda Nemeth on December 20, 2021. Dr. Nemeth noted evidence of over-reporting on the psychological testing and that it was difficult to attribute the applicant’s current symptoms and problems to the accident.

35In February 2022, Dr. Nemeth reviewed the applicant’s case along with additional provided reports. On the review, Dr. Nemeth stated, “after reviewing the additional documentation provided, it is my opinion that there is no evidence of anxiety as a result of the index accident resulting in a diagnosis of specific phobia, and no evidence of a psychological symptomatology requiring treatment”.

36In reviewing the submitted evidence I prefer the evidence submitted by the respondent. Dr. Nemeth's report provided valuable context on over-reporting which undermined the testing from the other reports which found an extreme results. These results were not corroborated or support by other medical evidence.

37The applicant has not demonstrated on a balance of probabilities that she suffers from a psychological condition.

The Non-Earner Benefit (NEB)

Does the applicant suffer from a complete inability to carry on a normal life?

38I find that the applicant is not entitled to an NEB. She has not proven that she suffers from a complete inability to carry on a normal life as a result of the accident in accordance with s. 12(1) of the Schedule.

39Section 12(1) of the Schedule 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 the NEB entitlement test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which generally requires a comparison of the applicant’s pre-accident and post-accident activities.

40The applicant takes the position that she qualifies for the NEB from July 3, 2019 to June 3, 2021. She claims that the injuries sustained in the accident resulted in her suffering a complete inability to carry on a normal life. In support of her claim, she relies on an OCF-3 submitted by Dr. Fouda, a physiotherapist at Prime Physio Plus, completed on September 27, 2019. In that OCF-3, the applicant’s injuries were reported as sprain and strain.

41The respondent argues that the applicant is not entitled to the NEB for any period of time, citing primarily that the applicant has not met her burden of proving that she suffers from a complete inability to carry on a normal life. In support of its claim, the respondent argues that the evidence provided in the medical records submitted and cross-examination of the applicant do not meet the burden of proof, that she suffers from a complete inability to carry on a normal life.

42I agree with the respondent. The applicant has not proven that she suffers from a complete inability to carry on a normal life due to injuries sustained in the accident due to a lack of evidence provided by the applicant.

43I am not persuaded by the applicant’s evidence, as it is not contemporaneous with the accident and is limited in scope. The OCF-3 by Dr. Fouda noted only soft-tissue injuries because of the accident. While the applicant has noted multiple issues with performing activities of daily living, there has been not substantive medical evidence to support these claims.

44The Occupational Therapist’s report completed by Deanne Evens on November 15, 2021 notes that in the opinion of the OT, “Ms. Khalil was observed to have the ROM, strength and activity tolerance to compete or partially complete her activities of daily living.” It also states, “Ms. Khalil continues to engage in substantially all of the activities in which she normally engaged prior to the subject accident.”

45I have a similar view of the Insurer’s Examination completed by Dr. Greg Jaroszynski, Orthopedic Surgeon, completed on September 7, 2021, in which Dr. Jaroszynski states, “based on examination and review of concurrent OT, from the Musculoskeletal perspective, Ms. Khalil does not suffer an inability to carry on a normal life from the musculoskeletal perspective as a result of the accident.”

46I prefer the medical evidence of the respondent, which is more thorough regarding the applicant’s physical and psychological injuries, and also directly references the NEB test. The evidence submitted by the applicant relies exclusively on self reporting and is not supported by objective medical testing.

47In conclusion, I find that the applicant has not met her burden and proven that she is suffering from a complete inability to carry on a normal life as a result of the subject accident.

Conclusion

48For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.

The Treatment Plans

49As I have found the applicant to remain within the MIG, I find that it is not necessary to review the treatment plans in dispute to determine if they are reasonable and necessary.

ORDER

50I find that:

i. The applicant is not entitled to Non-Earner Benefits.

ii. The applicant remains subject to the MIG.

iii. The application is dismissed.