Licence Appeal Tribunal File Number: 23-000742/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:
Zeynab Abdi
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Adam Moftah, Counsel
For the Respondent:
Morgan MacDonald, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Zeynab Abdi, the applicant, was involved in an automobile accident on November 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The 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 $2,200.00 for a psychological assessment, proposed by Dr. Ricardo Harris, in a treatment plan, dated January 21, 2021?
iii. Is the applicant entitled to $3,989.29 for physiotherapy services, proposed by HealthMax – Etobicoke, in a treatment plan, dated January 10, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant’s injuries are “minor injuries” as defined in the Schedule. The applicant is not entitled to the disputed treatment plans or interest.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
a) The Minor Injury Guideline
5I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 MIG funding limit on treatment, which the parties agree has been exhausted.
6Section 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.”
7An 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.
8In this matter, the applicant submits that she should be removed from the MIG based on her pre-existing conditions. She further submits that she should be removed from the MIG because of her physical and psychological impairments.
b) Pre-existing conditions
9I find that the applicant has not demonstrated on a balance of probabilities that she suffers from a pre-existing condition that warrants removal from the MIG.
10To be removed from the MIG based on a pre-existing condition, the applicant must satisfy both parts of a two-part test pursuant to s. 18(2) of the Schedule. She must provide documented evidence of a pre-existing medical condition by a health practitioner, and she must also provide evidence that the pre-existing condition will prevent her from achieving maximal medical recovery from the minor injury if she is subject to the MIG limits.
11The applicant submits that the medical records of her family physician, Dr. Abdullahi Berih, reveal a pre-accident medical history of a radial head fracture in 2014 and a left wrist injury in 2011. She further submits that her pre-existing conditions include low back pain and some generalized pain attributed to fibromyalgia.
12The respondent submits that the applicant has not provided any medical evidence of a pre-existing condition that would warrant her removal from the MIG. The respondent further submits that there is no compelling evidence that the applicant’s pre-existing conditions would prevent her from making a maximal recovery from her minor injuries if she is subject to treatment under the MIG.
13I find that the applicant has provided documented evidence by a health practitioner of a pre-existing medical condition. In his March 23, 2018 report, Dr. Sam Silverberg, rheumatologist, concluded that the applicant has lumbosacral soft tissue pain and widespread pain due to fibromyalgia. In his clinical note dated May 17, 2018, Dr. Berih, family physician, saw the applicant for her bilateral foot and low back pain.
14The applicant has not however, met her onus of providing evidence from a health practitioner that a pre-existing medical condition will prevent her from achieving maximal medical recovery if she is subject to the MIG limits, which is required for removal from the MIG under s. 18(2). As a result, I find that the applicant has not satisfied section 18(2) of the Schedule.
c) Chronic pain
15I find that the applicant has not demonstrated on a balance of probabilities that she suffers from a chronic pain condition that warrants removal from the MIG.
16The applicant submits that she suffers from chronic pain as a result of the accident. To support her position, she relies upon the CNRs of Dr. Berih, to show that she has made consistent complaints of pain since the accident and that she suffers from chronic neck and chronic low back pain. The applicant also relies upon the May 31, 2023, physiatry report of Dr. Krystyna Prutis, which diagnoses her with chronic neck and low back pain. She submits that she received physical treatment for her injuries at HealthMax Physiotherapy Clinics.
17The respondent submits that the applicant has failed to adduce compelling medical evidence to support that she should be removed from the MIG based on chronic pain or that she suffers a functional impairment in her daily life. The respondent further submits that there is no evidence of any post-accident treatment received by the applicant. Despite the Case Conference Report and Order (“CCRO”), dated September 20, 2023, ordering the applicant to provide her “treatment records relevant to the issues in dispute from the date of the accident to date,” the applicant has failed to provide the requested documentation in contravention of the Order. The respondent further submits that the applicant has failed to attend the scheduled July 11, 2019 Insurer’s Examination (“IE”) with Dr. Levy, general practitioner, with respect to her entitlement to medical benefits. Despite writing to the applicant on July 19, 2019 and October 17, 2019, with respect to her failure to attend the scheduled IE assessment, no response was received from the applicant.
18I find the decision in Palmer v. TD insurance, 2022 CanLII 70512 (ON LAT), cited by the respondent, persuasive. The Tribunal held that for chronic pain to warrant reclassification of an injury beyond the MIG, it must not simply be sequelae of a soft tissue issue. There must be some functional impairment.
19I find that the applicant has provided insufficient medical evidence to support that she suffers from chronic pain or that she has a corresponding functional impairment as a result of the accident. I further find that the applicant has not provided any CNRs setting out the treatment that she received or documenting her ongoing complaints by her treatment providers in contravention of the CCRO dated September 20, 2023. Post-accident, there is insufficient evidence of a significant decrease in the applicant’s physical abilities and insufficient evidence that she suffers a functional impairment. My reasoning is based on the following findings.
20Firstly, upon review of the CNRs of Dr. Berih, the first note post-accident is dated November 14, 2018, where the applicant is diagnosed with neck strain, bilateral shoulders strain, back strain and bilateral wrist strain. She was subsequently seen on December 19, 2018, with complaints of back pain, sudden onset radiating to her pelvis. I find that there are no further CNRs documenting the applicant’s physical complaints until three and a half years later, when the applicant is assessed by Dr. Berih on May 9, 2022, as having chronic back and neck pain. There is no discussion as to the applicant’s condition leading up to this diagnosis and no mention of the accident. The applicant is then not seen again until November 4, 2022, when she is assessed with sciatica with L4 radiculopathy and notes her back pain “has gotten worse since one month”. The final note of Dr. Berih is dated February 28, 2023, where the applicant is diagnosed with chronic back and neck pain and a referral is made to a physiatrist. Dr. Berih notes “low back pain for 3 years since mva”. I find that other than commenting that the applicant has chronic pain, there is no discussion about any accompanying functional impairments.
21Secondly, the May 31, 2023 report of Dr. Prutis, physiatrist, notes the applicant’s complaints of neck and low back pain since her 2018 accident and diagnoses her with chronic neck and chronic low back pain. An MRI was recommended. Other than noting that her pain is aggravated with prolonged sitting, standing, bending forward and ambulance, there is no description or assessment of the applicant’s functional impairments as a result of her complaints. I find that Dr. Prutis’ conclusory statement about chronic pain falls short of establishing a medical condition that would warrant the applicant to be removed from the MIG on the basis of chronic pain. I further find that despite the applicant being referred for an MRI, no MRI report was provided by the applicant.
22Thirdly, the November 14, 2018 Disability Certificate, prepared by Mary Jane Calzado, physiotherapist at HealthMax – Etobicoke, lists the applicant’s injuries as other sleep disorders, sprain and strain of shoulder joint, injury of muscle and tendon of neck level, sprain and strain of thoracic spine, strain and strain of lumbar spine, chest pain, post-traumatic headache and sprain and strain of wrist. The January 22, 2020 Disability Certificate, prepared by Dr. Berih, lists the applicant’s injuries as back, neck strain, bilateral shoulder strain, bilateral wrist strain and cervicogenic headaches. The injuries listed in both Disability Certificates, are all injuries that fall within the definition of minor. There is no mention of chronic pain. While both assessors indicate that the applicant suffers from a complete inability to carry on a normal life, Ms. Calzado notes that the applicant has difficulty with activities of daily living such as household chores and caregiving activities, but Dr. Berih does not provide any particulars about the applicant’s functional limitations with respect to her activities of daily living.
23Finally, while I find it concerning that the applicant did not attend the scheduled IE’s arranged by the respondent in 2019, the respondent has not sought an Order from the Tribunal with respect to the applicant’s non-compliance with the Schedule.
24For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident and therefore she is not removed from the MIG on this basis.
d) Psychological Injuries
25I find that the applicant has not demonstrated on a balance of probabilities that she suffers from psychological injuries that warrant removal from the MIG.
26The applicant submits that she suffers a psychological impairment as a result of the accident which is an obstacle to her medical recovery within the MIG limits. She relies upon the psychological assessment report prepared by Dr. Ricardo J. Harris, dated March 9, 2021. Dr. Harris diagnosed her with somatic symptom disorder, with predominant pain, persistent severe; major depressive disorder, single episode, severe, with anxious distress; and post-traumatic stress disorder, chronic.
27The respondent submits that the applicant does not suffer a psychological impairment as a result of the accident that would remove her from the MIG. The respondent argues that there have been no post-accident records produced from the applicant’s family doctor, Dr. Berih, and no evidence that the applicant ever sought any psychological treatment in respect to the accident. The respondent submits that there are no records and no mention of any psychological complaints to any other healthcare professional after the accident other than to Dr. Harris, psychologist. Dr. Harris’ report does not reference any other treatment records or sources of information that he considered in making his findings and relied only on the applicant’s self-reports. In addition, Dr. Harris transferred the applicant’s treatment to her physiotherapy clinic and no treatment plan was subsequently submitted for psychological treatment. The respondent further submits that a negative inference should be drawn due to the applicant’s failure to attend the July 29, 2019 scheduled IE assessment with Dr. Cheryl Miller, psychologist, to assess the reasonableness of the treatment plan recommending a psychological assessment with Dr. Harris, without any explanation.
28I find that the applicant has provided insufficient medical evidence to support that she suffers from a psychological impairment as a result of the accident which would warrant her removal from the MIG. Apart from Dr. Harris’s psychological report, the applicant has provided no corroborating evidence or CNRs that reference psychological symptoms, investigations, medications, psychological or psychiatric counselling or referrals for same after the accident.
29I give little weight to the report of Dr. Harris, as his report was based on the self-reported symptoms of the applicant and no further records were reviewed by Dr. Harris to corroborate her complaints. He notes in his report that he cannot vouch for the accuracy of all of the information offered by the patient, nor by the completeness of the details surrounding the events. In addition, after preparing his report, Dr. Harris transferred the applicant’s treatment to her physiotherapy clinic and no treatment plan for psychological treatment was ever submitted by the clinic.
30I do place weight on the fact that the applicant failed to attend at the IE psychological assessment with Dr. Miller, without explanation. The respondent was not afforded the opportunity to assess the applicant’s psychological condition following the accident.
31I find that the applicant has not provided the Tribunal with any other objective medical records to support her ongoing psychological impairments or that her psychological impairments would warrant her removal from the MIG.
32For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological impairment as a result of the accident and therefore she is not removed from the MIG on this basis.
The applicant is not entitled to the disputed treatment plans for a psychological assessment or physiotherapy services
33As the applicant continues to be within the MIG and the MIG limits have been exhausted, the applicant is not entitled to the psychological assessment or physiotherapy services treatment plans, in dispute.
Interest
34As the applicant continues to be within the MIG and there is no overdue payment of benefits, there is no interest payable.
ORDER
35For the reasons outlined above, I find:
i. The applicant’s injuries are “minor injuries” as defined in the Schedule;
ii. The applicant is not entitled to the two treatment plans in dispute;
iii. The applicant is not entitled to interest; and
iv. The application is dismissed.
Released: January 13, 2025
Melanie Malach
Adjudicator