Starie Farquharson v. Intact Insurance Company, 2025 CanLII 16023

Citation: Farquharson v. Intact Insurance Company, 2025 ONLAT 23-001291/AABS

Licence Appeal Tribunal File Number: 23-001291/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:

Starie Farquharson

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel Raj Bhangal, Student-at-Law

For the Respondent: Dan Hynes, Counsel

HEARD: By way of written submissions

OVERVIEW

1Starie Farquharson (the “Applicant”) was involved in an automobile accident on November 26, 2019, and sought benefits from Intact Insurance Company (the “Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The Respondent characterized the Applicant’s injuries as falling within the “minor injury” definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Applicant disagrees with these decisions by the Respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

1. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline and the $3,500.00 funding limit?
2. Is the Applicant entitled to a medical benefit in the amount of $2,839.20 for physiotherapy services, proposed by MediLifecare Inc. in a treatment plan/OCF-18 (“plan”) dated June 2, 2021?
3. Is the Applicant entitled to a medical benefit in the amount of $4,347.12 for aquatherapy services, proposed by Hydroactive Aquatherapy and Rehabilitation in a plan, dated January 21, 2022?
4. Is the Applicant entitled to a medical benefit in the amount of $2,486.00 for a Psychological Assessment, proposed by MediAssess Evaluations Inc. in a plan, dated June 2, 2021?
5. Is the Applicant entitled to a medical benefit in the amount of $2,056.00 for massage therapy services, submitted on a claim form (OCF-6) dated January 31, 2023?
6. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
7. Is the Applicant entitled to interest on any overdue payment of benefits?
8. Is the Respondent entitled to costs?

RESULT

3I find that the Applicant sustained a minor injury as a result of the accident.

4The Applicant is not entitled to the plans in dispute because they propose goods and services that fall outside the MIG and beyond the $3,500.00 funding limit for a minor injury.

5The Applicant is not entitled to the expenses submitted via OCF-6, dated January 31, 2023, because the goods and services were incurred prior to submitting a plan to the Respondent.

6No interest, award, or costs are payable.

BACKGROUND

7The Applicant was driving a rideshare when her vehicle was struck by an oncoming vehicle on the rear passenger side while traversing an urban intersection. No police or ambulance attended at the scene of the accident, and the Applicant sought no medical attention on the day of the accident.

8The Applicant first attended MediLifeCare Inc. following the accident, where she was assessed by Dr. D. Huang, chiropractor. Dr. Huang diagnosed the Applicant with sprain and strain injuries, and the Applicant commenced treatment pursuant to the MIG thereafter. Later the same day, the Applicant attended at a walk-in clinic with complaints of pain, stiffness, difficulty walking, loss of motion, frequent headaches, anxiety, low mood, and pain when waking from sleep. She was diagnosed with soft tissue injuries, strains, and possible cervicogenic headaches. The practitioner at the walk-in clinic recommended that the applicant engage in massage therapy, physiotherapy, heat for her back, to keep active, and prescribed pain medication.

9The Applicant travelled to the Caribbean in January 2020, a little over a month after the accident. Since then, she claims that she has developed psychological injuries, as well as a chronic pain condition, as a result of the accident. According to her, these injuries are not included n the minor injury definition, and therefore she should not be subject to the MIG.

10Additionally, the Applicant has a health history that is significant for a fractured neck, clavicle, and wrist, as well as a mild concussion from a motor vehicle accident in 2012.

PRELIMINARY ISSUE

11The Respondent raised a preliminary issue in its responding submissions and submits that the Applicant is statute-barred from proceeding with this application because she failed to attend insurer’s examinations (“IEs”) related to issues in dispute. Specifically, it submits that the Applicant never attended IEs pertaining to the reassessment of whether the Applicant sustained a minor injury, and with respect to the plans in dispute. The preliminary issue was not listed in the Case Conference Report and Order for this matter.

12In reply, the Applicant never addressed the specific IE notices at issue. Instead, she notes that she attended several IEs, as evidenced by the various IE reports that the Respondent submits for consideration for this hearing.

13I find that the Applicant’s attendance at IEs is a live issue for the hearing and that she has not attended IEs related to the reassessment of whether she sustained a minor injury, and the plans dated June 2, 2021, and January 21, 2022.

14Indeed, the Applicant attended IEs, and reports were issued in April 2021. However, attendance at these IEs is not at issue. She did not attend IEs scheduled for May 17, 2023, June 9, 2023, June 14, 2023, October 18, 2023, and October 30, 2023.

15Attending IEs earlier in a claim does not exempt the Applicant from attending later IEs. While this issue is only implied by the Applicant, it must still be addressed. The restriction on IEs is outlined in section 44(1) of the Schedule:

i. For the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit under this Regulation for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

16As outlined above, the restriction is “not more than reasonably necessary”. In this case, the Applicant has implied that attending prior IEs exempts her from attending current IEs. This argument is unsatisfactory because it does not address why the current set of IEs are being requested “more than reasonably necessary”. The current IEs were scheduled approximately two-years after the initial set of IEs were completed. I see no reason why another round of IEs would be more than reasonably necessary. I find that the Respondent was fulfilling its ongoing duty to continuously adjust the claim.

17The Applicant has not raised any other reasons for not attending the IEs. Typically, disputes over the attendance at IEs relate the compliance of the IE notice, or that the IEs are redundant or excessive. That is not the case here, as the Applicant does not dispute the content of the IE notices and issued no submissions on whether the current IEs are redundant or excessive, which would engage the “not more than reasonably necessary” provision and exempt the Applicant from attendance.

18Section 55(1)2 bars a person from applying to the Tribunal if the person has not complied with an examination under section 44 of the Schedule. This is a clear provision which bars the Applicant from proceeding with her application. Accordingly, I find that the Applicant is in breach of section 55(1)2 of the Schedule.

Section 55(2) gives me the authority to permit the application

19I choose to exercise my authority under section 55(2) of the Schedule and will permit the hearing on the merits because it would be procedurally unfair to bar the Applicant in these circumstances.

20The Applicant is entitled to know whether a preliminary issue will be raised at the hearing. Yet here, there is no evidence demonstrating that the Respondent notified the Applicant of the preliminary issue. The preliminary issue is not listed in the Order for this hearing. This alone is not fatal to the Respondent’s position because preliminary issues occasionally arise following a case conference. However, if preliminary issues arise following a case conference, the party raising the issue must notify the other party of that issue. There is no notice before me. The only suggestion that a preliminary issue is live comes from an email between counsel, dated November 13, 2023, whereby counsel for the Respondent asks counsel for the Applicant for a position on the Applicant’s attendance at IEs. This is insufficient because nowhere in the email does the Respondent indicate that it will raise the Applicant’s non-attendance as a bar for proceeding with the application.

21As a result, I find that the most procedurally fair way to proceed with this matter is to hear it on its merits.

ANALYSIS

Minor Injury Guideline (“MIG”)

22The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

23The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

24For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

Psychological injuries

25I find that the Applicant has not demonstrated that she sustained a psychological impairment which is not sequalae of her soft-tissue injuries.

26I prefer the opinion of Dr. A. Syed in the report dated July 12, 2021, over the various notes referred to by the Applicant. Dr. Syed assessed the Applicant by way of clinical interview, psychometric testing, and a document review. Dr. Syed found no objective evidence of a psychological injury in relation to the accident. Dr. Syed found that the Applicant’s score on psychometric testing exceeded the maximum acceptable cut off score for suspected malingering, with elevations on various scales and results being above the acceptable cutoff. It was noted that the Applicant’s inclination to over report and amplify symptoms serves to obscure rather than clarify any adjustment difficulties she might be experiencing.

27I find the clinical notes and records (“CNRs”) of the walk-in clinic the Applicant attends, as well as from other practitioners, do not demonstrate that the Applicant sustained a psychological injury as a result of the accident. The Applicant highlights that on November 3, 2020, a pain clinic noted that she experienced anxiety; on June 3, 2021, she reported sleep loss due to anxiety, and on July 22, 2021, she reported flashbacks and sleepless nights as a result of the accident. However, I note that none of the above-noted complaints resulted in any further intervention. This suggests that the healthcare providers felt that the complaints did not rise to a level to warrant additional intervention, or that the complaints were addressed sufficiently and without the assistance of a psychological specialist.

28Accordingly, I find that the Applicant has not demonstrated that she suffers from a psychological impairment which warrants treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.

Chronic pain

29I find that the Applicant has not demonstrated that she suffers from a chronic pain condition as a result of the accident.

30I give little weight to the Applicant’s self-reported complaints considering the surveillance evidence. The physical activity depicted in the Applicant’s social media postings is in clear contradiction to the functionality reported to various health care providers. For example, she reported to Dr. Syed that she limits herself with respect to bending, lifting, carrying, jogging, and going out with her boyfriend. Yet, the Applicant regularly posted videos to social media depicting herself engaging in significant physical activity. On February 11, 2020, she posted a video of her completing deadlifts; on February 24, 2020, she posted a video of herself pushing a weighted sled as a fitness exercise; on March 3, 2020, she posted a video of herself performing full-body stretches which include arching her back and reaching backward to hold her feet; and in April 2020, the Applicant posted an image of herself completing upper body exercises in a garage, and she posted a video of herself performing pull-up exercises while hanging off the roof of a residential home. Similar images and videos are posted on social media throughout the remainder of 2020, and as recent as September 29, 2021.

31The Applicant was presented with the surveillance evidence prior to this hearing and was aware of it, but never addressed it. The Applicant never denied that it was her in the images and video. Similarly, she does not dispute the content or validity of the images and videos. I conclude that the Applicant’s silence on the content of the surveillance evidence suggests that it is indeed her in the content and that she does not have an answer as to why the activity depicted in the social media postings is drastically different than what is reported to assessors.

32I prefer the reports of Dr. Khaled, dated April 26 and July 2, 2021. Dr. Khaled assessed the Applicant and concluded that she sustained uncomplicated soft tissue injuries as a result of the accident. The report states that examination of the Applicant’s neck showed that it is normal on inspection, there was no spasm, wasting, or atrophy, and demonstrated full functional range of motion (“ROM”). Her arms demonstrated full ROM, and normal power and grip. Her low back was normal on inspection. Dr. Khaled acknowledged that the Applicant is experiencing some residual pain but reassured that there was no evidence of overt organic pathology or disability that can be attributed to the accident. Dr. Khaled states that symptomatic relief can be achieved through independent self-directed exercise, and it is best for the Applicant to continue with her pre accident activities.

33Dr. Khaled maintained this opinion in a report dated July 2, 2021. For this report, Dr. Khaled reviewed CNRs from the walk-in clinic and the initial intake with Dr. S. Zarinehbaf, family physician, at the Vaughan Pain Clinic. While maintaining his position from the April 26, 2021 report, Dr. Khaled again noted that the Applicant should find symptomatic relief with independent, self-directed active rehabilitation.

34Dr. Khaled’s opinion is consistent with the care administered by Dr. Zarinehbaf. Dr. Zarinehbaf assessed the Applicant on June 30, 2020, and diagnosed her with myofascial pain, mechanical low back pain, and chronic pain syndrome. Yet, Dr. Zarinehbaf made no changes to the Applicant’s care, medication, or therapy. Instead, stretching at home was discussed as an ancillary treatment method, and no referrals or follow-up appointments were arranged.

35I acknowledge the pain complaints in the CNRs from the walk-in clinic the Applicant frequents, as well as the fact that she had trigger point injections administered in September and October 2020 without reported relief, but find that these are insufficient to conclude that the Applicant suffers from a chronic pain condition which affects her functioning. This is because the Applicant is not impaired by her reported pain, she resumed her employment as a personal trainer following the accident and remains completely independent with all her self-care tasks and activities of daily living. I find this characterization of the severity of the Applicant’s impairments to be in keeping with the recommendations for treatment from Dr. Zarinehbaf, who highlighted stretching as a treatment method. This characterization is further supported by the March 7, 2022 clinical note following an MRI of the Applicant’s head and x-rays of her neck the note indicated no significant findings, the MRI of the head was normal, and a neurological consultation was normal. The healthcare provider in that note suggested that the Applicant’s sleep issues may be related to restless leg syndrome.

36Accordingly, I find that the Applicant has not demonstrated she suffers from a chronic pain condition as a result of the accident.

The Applicant is not entitled to the treatment plans in dispute

37The treatment plans in dispute propose treatment that falls outside the MIG and the $3,500.00 funding limit for a minor injury. Having determined that the Applicant sustained a minor injury, it follows that she is not entitled to goods and services outside the MIG.

The Applicant is not entitled to the expenses claimed

38The Applicant claims entitlement to $2,056.00 in expenses, submitted via OCF-6. She submits that each individual expense on the form is invoiced individually and below the financial threshold, outlined in section 25 of the Schedule. The Respondent submits that the expenses are subject to section 38(2) of the Schedule, and that none of the expenses submitted by the Applicant are exempt and therefore, none are payable.

39I agree with the Respondent and find that the Applicant has not demonstrated that the expenses are exempt from the criteria in section 38(2) of the Schedule.

40Section 38(2) of the Schedule provides that an insurer is not liable to pay an expense in respect of a medical or rehabilitation benefit, or assessment or examination, that was incurred before the insured person submits a treatment and assessment plan. The exceptions to this are: if the insurer gives notice that a treatment and assessment plan is not required; if the expense if for an ambulance or other goods or services provided on an emergency basis; if the expense is related to drugs prescribed by a regulated healthcare professional, or home modifications or assistive devices with a cost of less than $250.00 per item.

41I am unable to find that the expenses are payable because it is unclear what the expenses are and because the Applicant has not met her onus to demonstrate that the expenses fall in one of the excepted categories outlined in section 38(2). The OCF-6 and the related expenses are not in evidence before me, but the February 2, 2023 denial letter is before me. From that letter, it appears that the expenses are for massage therapy incurred between February and September 2022.

42Nevertheless, the Schedule is clear in that an insurer is not liable to pay for medical and rehabilitation benefits incurred prior to submitting a treatment and assessment plan. This is the case here, and the Applicant has not demonstrated how or why the expenses are exempt, pursuant to section 38(2).

43Contrary to the Applicant’s submissions on the issue, I find that section 25 of the Schedule does not apply in this situation. Section 25 governs the cost of examinations, not treatments. According to the Applicant’s submissions, the expenses are related to treatments, not examinations.

44Accordingly, I find that the Applicant is not entitled to the out-of-pocket expenses claimed.

Interest

45Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having determined that no benefits are payable, it follows that no interest is payable.

Award

46The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

47The Applicant seeks an award on the basis that, according to her, the Respondent only considered the conclusions in the IE reports and closed its mind to the other medical evidence she provided. The Respondent submits that no benefits are payable, and that the Applicant abused the Tribunal process and failed to attend IEs, suggesting that the claim for an award has no merit.

48I find no award payable because no benefits were unreasonably withheld or delayed. I find that the Respondent’s adjusting of the claim is in keeping with its ongoing obligation to adjust the Applicant’s claim. It was reasonable for the Respondent to seek additional IEs given the time delay from the initial assessments. Accordingly, no award is payable.

Costs

49The Respondent seeks $1,000.00 in costs associated with this application. It submits that the Applicant abused the Tribunal process by applying to the Tribunal twice and, on both occasions, withdrew the Application on the date that submissions were due. The Applicant submits that no costs should be awarded because the current application is different than prior applications, and that her prior withdrawals related to hearings with no witnesses involved, and that an order for costs when new issues are being litigated would be procedurally unfair.

50I find no basis for an award for costs.

51Pursuant to rule 19.1 of the Common Rules of Practice & Procedure (the “Rules”), costs may be requested where a party believes another party has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.5 stipulates that I consider all relevant factors when determining whether costs should be awarded, including: the seriousness of the misconduct, whether it was a breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process, the prejudice to the other parties, and the potential impact an order for costs would have on individuals accessing the Tribunal. Rule 19.5 also permits me the authority to deny or grant the request for costs or award a different amount.

52Here, the Applicant has not exhibited behaviour that can be considered to be unreasonable, frivolous, vexatious, or in bad faith. Indeed, the Applicant had two prior applications with the Tribunal, and withdrew them both. It is reasonable for an applicant to the Tribunal to withdraw an application in the event that they are unprepared to put their best foot forward at a hearing. It appears that this is the case here and the Applicant, unprepared to proceed on the earlier two occasions, withdrew her applications.

53The timing of the Applicant’s withdrawals is reasonable. The Applicant withdrew her applications prior to making written submissions on the issue and tendering her evidence, and prior to the Respondent issuing submissions and tendering evidence. The effect is that the Respondent was not required to issue submissions or tender evidence. It would be a different scenario had the Applicant withdrew the application after the Respondent issued submissions, but before a decision was rendered. Accordingly, I find no costs payable.

CONCLUSION AND ORDER

54The Applicant never attended IEs but is permitted to proceed with her application by operation of section 55(2) of the Schedule.

55The Applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

56The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods ands services outside of the MIG and the $3,500.00 funding limit.

57The Applicant is not entitled to the expenses submitted on an OCF-6 because they were incurred prior to submitted the expenses.

58No interest, award, or costs are payable.