Citation: Micael v. Security National Insurance Company, 2025 ONLAT 22-005006/AABS

Licence Appeal Tribunal File Number: 22-005006/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:

Sonia Micael

Applicant

And

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Gareth Neilson

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Eric Boate, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sonia Micael, the applicant, was involved in an automobile accident on November 27, 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, Security National Insurance Company, 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? Note: At the time of the case conference, the respondent indicated $596.90 remained.

ii. Is the applicant entitled to a psychological assessment in the amount of $2,486.01, proposed by Q Medical in a treatment plan submitted on June 18, 2020?

iii. Is the applicant entitled to the services and assessments proposed by Scarborough Medical Centre, as follows:

(a) An in-vehicle driving assessment in the amount of $1,950.00, in a treatment plan submitted on March 29, 2021;

(b) A nutritional assessment in the amount of $850.00, in a treatment plan submitted on February 25, 2021;

(c) Psychological therapy in the amount of $3,192.27, in a treatment plan submitted on December 10, 2020?

iv. Is the applicant entitled to $172.17 for prescription expenses, submitted on a claim form on January 18, 2023?

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

RESULT

3I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

4The applicant is not entitled to a psychological assessment as proposed by Q Medical.

5The applicant is not entitled to the services and assessments proposed by the Scarborough Medical Centre.

6The applicant is not entitled to $172.17 for prescription expenses.

7The applicant is not entitled to interest on any overdue payments.

ANALYSIS

Applicability of the Minor Injury Guideline (MIG)

8Section 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 sequelae to such an injury.”

9An 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 condition combined with compelling medical evidence stating that the condition precludes 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.

10The applicant submits that they suffer from psychological impairments and chronic pain, and thus should be removed from the MIG. The respondent disagrees.

Does the applicant have a psychological impairment?

11I find that the applicant does not have an accident-related impairment to which the MIG would not apply.

12The applicant relies primarily on the diagnoses found in the Independent Psychological Assessment Report of Psychologist, Dr. Rick Lindal, dated October 7, 2020. Dr. Lindal diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia related to being in a motor vehicle. The applicant argues that this diagnosis necessitates “comprehensive psychological and potentially pharmacological intervention, which is expected to extend beyond the financial boundaries set by the Minor Injury Guideline.”

13The respondent argues that the report from Dr. Lindal should be completely disregarded because it is unclear who did the examination. The respondent argues that the applicant told their assessor (Dr. Moshiri) that she did not have an interview with Dr. Lindal. The report also uses vague language which casts doubt as to whether Dr. Lindal conducted the assessment himself.

14Furthermore, the respondent argues that the report relied on by the applicant does not reference the opinion of s.44 assessors, Dr. Salama and Dr. Gwardjan. Additionally, the report fails to consider all the available medical evidence, including evidence from the applicant’s family doctor. Lastly, the respondent notes that the assessment conducted for the report dated October 7, 2020, was done virtually, whereas the respondent’s s. 44 assessments were done in person. The respondent argues that the applicant has not met their evidentiary burden necessary to warrant treatment outside of the MIG.

15I agree that the applicant has not met their evidentiary burden, and I find that the applicant has not proven based on a balance of probabilities that they have a psychological impairment such as the MIG would not apply.

16The findings of Dr. Lindal are not corroborated by the medical evidence that has been provided. For example, Dr. Lindal diagnosed the applicant with Mixed Anxiety and Depressed Mood with a Specific Phobia, namely driving. However, the evidence available shows that the applicant did not miss any time at work, continued to drive and reported to Dr. Salama and Dr. Moshiri that she was not having difficulty driving.

17Reviewing the medical evidence available, it seems clear that Dr. Lindal’s diagnosis is the dissenting view. The medical records from the applicant’s family doctors, which were reviewed by the respondent’s s. 44 assessors, do not show the applicant to have ongoing psychological impairments. Other than Dr. Lindal, the medical professionals who treated or assessed the applicant found no compelling evidence, whether physical or psychological, which would warrant treatment outside of the MIG limits.

Does the applicant have a Chronic Pain condition?

18I find that the applicant does not have a chronic pain condition that would warrant removal from the MIG. While the CNRs do show that the applicant complained of pain, and Dr. Martins did opine that the applicant had chronic mechanical back pain, it is not clear in the records whether that was a formal diagnosis or whether it was from the applicant’s self reporting.

19The applicant has not provided evidence to show how her pain impacts her function, the severity of her pain, the frequency of the pain and, importantly, that she meets the criteria for a chronic pain diagnosis based on the AMA Guides 6th edition. While the AMA Guides do not provide a legally binding test they are an important interpretive aid, when diagnosing chronic pain. The evidence shows that the applicant did not miss any work as a result of the motor vehicle accident, continued to drive and had normal activities of daily living. The applicant has therefore not met their burden of proof necessary to prove a chronic pain condition.

Is the applicant entitled to medical benefits in dispute?

20As I have found that the applicant has an impairment to which the Minor Injury Guideline applies, it is unnecessary for me to consider the other medical plans in dispute, as they are not payable. The applicant is subject to the $3,500 funding limit for the treatment of minor injuries.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s.51 of the Schedule. Since no benefits are owing, no interest is payable.

ORDER

22The applicant has not met her onus in establishing entitlement to treatment outside the Minor Injury Guideline. The treatment plans are not payable. Since no benefits are owing, no interest is payable. The application is dismissed.