Licence Appeal Tribunal File Number: 23-006982/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:
Georgette El-Sayegh
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Mohamed Doli, Counsel
For the Respondent: Andrew E. Franklin, Counsel
HEARD: By way of written submissions
OVERVIEW
1Georgette Fares El-Sayegh, the applicant, was involved in an automobile accident on December 25, 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, Allstate Insurance Company of Canada, 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 limit?
ii. Is the applicant entitled to $1,753.94 for physiotherapy services, proposed by Apollo Physical Therapy Centre in a treatment plan dated January 14, 2022?
iii. Is the applicant entitled to $1,197.50 for physiotherapy services, proposed by Prime Physio Plus in a treatment plan dated May 10, 2022?
iv. Is the applicant entitled to the assessments proposed by Revival Rehabilitation as follows:
(i) $2,200.00 for a psychological assessment, in a treatment plan dated May 9, 2023; and
(ii) $2,200.00 for a functional abilities and attendant care assessment, in a treatment plan dated May 10, 2023?
v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by South Keys Health Inc. in a treatment plan dated September 15, 2023?
vi. Is the applicant entitled to an income replacement benefit in the amount of $331.89 per week from January 1, 2022 to date and ongoing?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is removed from the MIG;
ii. The applicant is entitled to $1,753.94 for physiotherapy services, proposed in the treatment plan dated January 14, 2022;
iii. The applicant is entitled to $1,197.50 for physiotherapy services, proposed in the treatment plan, dated May 10, 2022;
iv. The applicant is entitled to $2,200.00 for a psychological assessment, proposed in the treatment plan, dated May 9, 2023;
v. The applicant is not entitled to $2,200.00 for a functional abilities and attendant care assessment, proposed in the treatment plan, dated May 10, 2023;
vi. The applicant is not entitled to $2,200.00 for a psychological assessment proposed in a treatment plan, dated September 15, 2023;
vii. The applicant is not entitled to an IRB in the amount of $331.89 per week from January 1, 2022 to date and ongoing; and
viii. The applicant is entitled to applicable interest.
ANALYSIS
The applicant is removed from the MIG
4I find that the applicant has met her onus and demonstrated that her accident-related impairments warrant removal from the MIG.
5Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
6An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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. In all cases, the burden of proof lies with the applicant.
7In this matter, the applicant submits that she should be removed from the MIG because she sustained chronic pain and/or a psychological impairment as a result of the accident.
a) Removal from the MIG based on chronic pain
8I find that the applicant has demonstrated that she suffers from a chronic pain condition that warrants removal from the MIG.
9Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.
10The applicant submits that she has chronic pain with functional limitations. She relies upon the clinical notes and records (“CNRs”) of her family physician, which document her ongoing complaints post-accident. She also relies upon the pain medicine assessment report prepared by Dr. Hien Ta, pain consultant physician, dated April 6, 2024. Dr. Ta diagnosed the applicant with chronic pain and noted objective findings of functional limitations.
11The respondent submits that the applicant has not discharged her burden to prove that her injuries fall outside of the MIG. The respondent claims that the applicant’s family physician and physiotherapist diagnosed the applicant with soft tissue injuries. It further relies upon the two Insurer Examination (“IE”) physiatry assessment reports of Dr. Abdul Wahab Khan, dated March 3, 2022 and February 2, 2023, which confirmed that the applicant sustained minor injuries. The respondent submits that with respect to the chronic pain report of Dr. Ta, Dr. Ta has not established that the applicant’s chronic pain is not sequelae of the applicant’s minor injuries. It further submits that the applicant’s inaccurate work history undermines Dr. Ta’s conclusions about her withdrawal from work.
12I find that the applicant has provided sufficient evidence to support her claim that she suffers from a chronic pain condition with functional impairment as a result of the accident.
13I disagree with the respondent, and I am persuaded by the applicant’s submissions. In reaching my conclusions, I have placed significant weight on the CNRs of Dr. Mikhail, family physician. The applicant continued to see Dr. Mikhail regularly following the accident with ongoing physical complaints and reports of functional limitations. I find these CNRs support the conclusions made by Dr. Ta in his pain medicine assessment report which concludes that the applicant suffered from chronic pain. Dr. Ta reviewed all of the family doctor’s CNRs and updated documentation and provided a summary of these records within his report. He provided a detailed description of the applicant’s functional impairments and opined that the applicant met five out of six criteria in the AMA Guides.
14I find that with respect to the AMA Guides criteria, I am persuaded that the applicant has a chronic condition for the following reasons. The applicant has provided a prescription summary as evidence of her reliance on prescription medication to manage her pain and symptoms following the accident. The applicant is excessively dependent on healthcare providers, spouse or family and has exhibited secondary physical deconditioning due to disuse and/or failure to restore pre-accident function. The applicant has submitted that she has withdrawn from social milieu and she has not returned to her pre-accident employment despite a two to three week trial. The applicant has developed psychological symptoms as evidenced in the records of Dr. Mikhail, family physician.
15Accordingly, I am satisfied on a balance of probabilities that the applicant has satisfied the criteria for removal from the MIG. As I have found that the applicant’s chronic pain condition warrants removal from the MIG, I have not addressed the applicant’s claims that her psychological injuries also justify her removal from the MIG.
Entitlement to the treatment plans in dispute
a) The applicant is entitled to the treatment plans for physiotherapy
16I find that the applicant is entitled to the treatment plans for physiotherapy.
17To receive payment for a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.
18The applicant claims entitlement to $1,753.94 for physiotherapy services, proposed by Apollo Physical Therapy Centre, in a treatment plan dated January 14, 2022. The treatment plan seeks 16 one-hour sessions of physiotherapy, one hour of exercises, multiple body sites and one hour for “planning, service”. The goals of the treatment plan are pain reduction, increase in strength, increased range of motion, return to activities of normal living and increase the intensity, frequency and duration of activities of normal living.
19The applicant also claims entitlement to $1,197.50 for physiotherapy services, proposed by Prime Physio Plus, in a treatment plan dated May 10, 2022. The treatment plan seeks 10 one-hour sessions of physical rehabilitation and one hour of documentation support activity. The goals of the treatment plan are pain reduction, increased range of motion, increased strength, return to activities of normal living and return to pre-accident work activities.
20The applicant submits that the treatment plans in dispute are reasonable and necessary because she has ongoing physical impairments which require treatment, and she has not fully physically recovered from the accident. She relies on the CNRs of Dr. Mikhail, family physician, which support his continuous recommendations that the applicant continue with physiotherapy treatment. The applicant further submits that Dr. Mikhail’s records should be preferred over the opinions of IE assessor Dr. Khan. Dr. Mikhail is more familiar with the applicant’s limitations and capabilities while Dr. Khan only assessed the applicant twice in the four years since the accident.
21The respondent submits that the applicant has not led any evidence, either by way of a medical report or opinion, to establish that the treatment plans in dispute are reasonable and necessary. It relies upon the IE reports of Dr. Khan, dated March 3, 2022 and February 2, 2023, which concluded that the applicant’s injuries fall within the MIG and that she has achieved maximum medical recovery.
22I find that the applicant has provided sufficient medical evidence to show that the treatment plans for physiotherapy are reasonable and necessary. I find that the CNRs of Dr. Mikhail support the need for physiotherapy which is based on the multiple recommendations made throughout the CNRs. While the IE reports of Dr. Khan indicate that the applicant has achieved maximum medical recovery, the CNRs of Dr. Mikhail demonstrate her ongoing pain complaints. I further agree with the applicant that the CNRs of a treating practitioner who regularly assesses the applicant should be given more weight than a report of an IE assessor who only sees the applicant for the purpose of an assessment.
23For the reasons set out above, I find the applicant has proven on a balance of probabilities that she is entitled to the treatment plans for physiotherapy dated January 14, 2022 and May 10, 2022.
b) The applicant is entitled to the treatment plan for a psychological assessment
24I find that the applicant is entitled to the treatment plan proposing a psychological assessment, dated May 9, 2023.
25The applicant claims entitlement to the treatment plan proposed by Dr. Patricia Parmashwar, psychologist, at Revival Rehabilitation, dated May 9, 2023, recommending a psychological assessment in the amount of $2,200.00. At part 9 of the plan, the goal of the treatment plan states: “Psychological assessment in order to determine current psychological status as well as psychological consequences of the MVA.”
26By letter dated May 31, 2023, the respondent denied the treatment plan. The respondent provided the following reasons for the denial:
We have no compelling evidence of any pre-existing psychological issues documented by your family physician to support that you suffer from a psychological impairment that would prevent you from achieving maximum medical recovery within the Minor Injury framework.
If you have additional medical documentation to support your claim for benefits please provide it. Upon review of new information, we will advise if our determination has changed.
27The applicant submits that the treatment plan recommending a psychological assessment is reasonable and necessary based on the medical evidence provided that supports a finding that she has a psychological impairment as a result of the accident. The applicant relies on the CNRs of Dr. Mikhail, family physician, that support ongoing psychological complaints dating back to October, 2021, as a result of the accident. The applicant submits also submits that the respondent failed to comply with s. 38(10) and s. 44(1) of the Schedule. The applicant submits that the respondent denied the treatment plan in dispute based on its opinion that the applicant did not provide compelling evidence of any pre-existing psychological issues. The applicant submits that the Schedule does not provide that an insured person’s injury would only be considered a non-minor injury if the insured person had a pre-existing condition. The applicant submits that despite providing the respondent with compelling medical evidence of the applicant’s psychological impairments, the respondent failed to approve the psychological treatment or arrange an examination to assess the applicant.
28The respondent submits that the proposed assessment is not reasonable and necessary, as the applicant’s psychological symptoms are unrelated to the subject accident. It argues that the applicant’s psychological symptoms began after she suffered a wrist fracture on October 4, 2021 and therefore are not as a result of the motor vehicle accident. It claims that the CNRs of Dr. Mikhail do not show a consistent history of psychological complaints dating back to the car accident.
29I find that the applicant has met her onus of proving on a balance of probabilities that the treatment plan in dispute is reasonable and necessary for the following reasons.
30I find that the medical evidence establishes accident-related psychological impairments warranting further investigation. While I agree with the respondent that the first complaints were after she suffered a left wrist fracture, the evidence establishes that the applicant’s psychological impairments can be linked to the accident. Upon review of the CNRs of Dr. Mikhail, family physician, the applicant continued to make psychological complaints after October, 2021 which were attributed to the motor vehicle accident. On October 16, 2022, Dr. Mikhail diagnosed the applicant with major depressive disorder, post-traumatic stress disorder and generalized anxiety disorder and referred her for psychotherapy. I find that the applicant’s psychological complaints are also noted in Dr. Khan’s report, dated February 2, 2023 as well as the report of Dr. Ta, dated April 6, 2024.
31As I have found that the applicant has proven that the treatment plan is reasonable and necessary, there is no need for me to address the adequacy of the respondent’s denial letter.
32I find that the applicant has met her onus of demonstrating on a balance of probabilities that the treatment plan dated May 9, 2023, is reasonable and necessary.
c) The applicant is not entitled to the remaining treatment plans in dispute
33I find that the applicant has not proven on a balance of probabilities that she is entitled to the remaining treatment plans in dispute.
34The applicant is claiming entitlement to the following treatment plans:
i. $2,200.00 for a functional abilities and attendant care assessment, proposed by Revival Rehabilitation, in a treatment plan, dated May 10, 2023; and
ii. $2,200.00 for a psychological assessment, proposed by South Keys Health Centre, in a treatment plan, dated September 15, 2023.
35I find that the applicant has not made any specific submissions as to the reasonableness of the above treatment plans in dispute. While I have found that the applicant’s injuries fall outside of the MIG, she has failed to provide any submissions on whether the treatment plans for a functional abilities assessment or a second psychological assessment are reasonable and necessary.
36I find that the applicant in her reply submissions has stated that she has submitted multiple compelling medical reports which supports her position that the disputed physical and psychological treatment plans are reasonable and necessary. I find, however, that the applicant has not specifically referred to the treatment plans in dispute and cannot make a blanket statement that the treatment plans are reasonable and necessary based on the medical documentation provided.
37Given the lack of submissions provided by the applicant with respect to her entitlement to the treatment plans dated May 10, 2023, and September 15, 2023, I find that she has not proven on a balance of probabilities that the treatment plans are reasonable and necessary as a result of the accident.
The applicant is not entitled to post-104 IRBs from January 1, 2022 onwards
38I find that the applicant has not demonstrated that she suffers a complete inability to engage in any employment for which she is suited by education, training, or experience, in accordance with the post-104 criteria in the Schedule.
39Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, she suffers a substantial inability to perform the essential tasks of that employment. Section 6 of the Schedule provides that, at the post-104 week mark, the applicant must prove she has a complete inability to engage in any employment for which she is suited by education, training, or experience.
40The applicant is seeking entitlement to post-104 IRBs at the rate of $331.89 per week from January 1, 2022 to date and ongoing. The applicant submits that prior to the accident, she worked as a cashier on a full-time basis at the Carleton University cafeteria. After the accident, she submits that she was off work for a year, and she returned to modified duties and hours (three hours a day). However, due to her severe physical and psychological impairments, the applicant states that she could only work for approximately two weeks after she returned to work and has not worked since.
41The applicant submits that she is entitled to an IRB as she continues to suffer a substantial inability to perform the essential tasks of her employment in the same capacity as she did prior to the accident. She relies upon the October 18, 2021 Attending Physician Report, prepared by Dr. Mikhail, family physician.
42The respondent submits that the applicant has not discharged her burden to show that she meets the post-104 complete inability test. It submits that Dr. Mikhail has not prepared any reports addressing the complete inability test and that the Attending Physician’s Statement, dated October 18, 2021, does not indicate that the accident-related injuries were the reason for the work stoppage, nor has he provided any reports to support the applicant’s eligibility. The respondent further states that the report of Dr. Ta is problematic and does not provide a basis as to why the applicant is unable to complete “any other employment”.
43I find that the applicant has provided limited submissions regarding her entitlement to post-104 IRBs. Her submission that she continues to suffer a substantial inability to perform the essential tasks of her employment is the incorrect test and does not meet the test for entitlement under s. 6 of the Schedule. Nowhere in her submissions does she state that she suffers a complete inability to engage in any employment for which she is suited by education, training, or experience.
44I find that while the Attending Physician’s Statement, dated October 14, 2021, supports that the applicant is unable to return to work at that time, there are no further reports by Dr. Mikhail to support that the applicant suffers a complete inability to engage in any employment thereafter.
45Upon review of the Disability Certificate, prepared by Dr. Mikhail, dated April 21, 2023, he indicates at part 6 disability tests and information that the applicant is not substantially unable to perform the essential tasks of her employment at the time of the accident as a result of and within 104 weeks of the accident. He then checks off “no” where it asks whether the applicant can return to work on modified duties or hours. No further explanation or details are provided.
46The applicant has not specifically relied upon the report of Dr. Ta or referred to any excerpts from this report to support her entitlement to post-104 week IRBs. I do, however, agree with the respondent’s submission that while Dr. Ta states that she has sustained a complete inability to complete her pre-accident employment due to her chronic pain syndrome, no analysis or discussion was made by Dr. Ta specifically about whether she would be able to complete “any other employment”.
47In addition, the respondent submits that the applicant has not provided credible evidence about her work stoppage as there is evidence that she engaged in employment in 2022 during the post-104 period. The respondent further submits that the applicant has failed to comply with the Case Conference Report and Order dated January 8, 2024, which required her to produce her income tax returns from one year pre-accident to date and the employment files from one year pre-accident to date. I find that the applicant did not make any reply submissions or explain why these documents were not provided. The applicant also did not address in her reply submissions whether she engaged in any employment during the post-104 period.
48For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that she is entitled to an IRB in the amount of $331.89 per week from January 1, 2022 to date and ongoing.
Interest
49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is applicable on the benefits that I have deemed to be payable.
ORDER
50For the reasons outlined above, I find:
i. The applicant is removed from the MIG;
ii. The applicant is entitled to $1,753.94 for physiotherapy services, proposed in the treatment plan dated January 14, 2022;
iii. The applicant is entitled to $1,197.50 for physiotherapy services, proposed in the treatment plan, dated May 10, 2022;
iv. The applicant is entitled to $2,200.00 for a psychological assessment, proposed in the treatment plan, dated May 9, 2023;
v. The applicant is not entitled to $2,200.00 for a functional abilities and attendant care assessment, proposed in the treatment plan, dated May 10, 2023;
vi. The applicant is not entitled to $2,200.00 for a psychological assessment proposed in a treatment plan, dated September 15, 2023;
vii. The applicant is not entitled to an IRB in the amount of $331.89 per week from January 1, 2022 to date and ongoing; and
viii. The applicant is entitled to applicable interest.
Released: March 4, 2025
Melanie Malach Adjudicator