Licence Appeal Tribunal File Number: 23-004869/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:
Ursulina Gouveia
Applicant
And
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Callum Micucci, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ursulina Gouveia, the applicant, was involved in an automobile accident on November 21, 2020, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2I have been asked to decide the following issues:
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?
Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from December 19, 2020, to November 21, 2022?
Is the applicant entitled to $1,995.00 for a psychological assessment, proposed by E Clinic United Healing in a treatment plan (“OCF-18”) dated May 5, 2021?
Is the applicant entitled to $2,374.40 for chiropractic services, proposed by E Clinic United Healing in an OCF-18 (“plan”) dated June 8, 2021?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant sustained a minor injury which is subject to treatment within the MIG. As a result, she is not entitled to either OCF-18 in dispute or interest. In addition, she has not established entitlement to a NEB for the time period claimed.
ANALYSIS
The applicant sustained a minor injury as a result of the accident
4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”
5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.
6The applicant submits that she should be removed from the MIG because she had pre-existing medical conditions which would prevent her from recovery if kept in the MIG. She also maintains that she sustained a psychological impairment as a result of the accident and suffers from chronic pain which warrant MIG removal. The applicant relies on a hospital record, the clinical notes and records (“CNRs”) of her family doctor and a disability certificate (“OCF-3”) dated January 4, 2021, completed by Dr. Shlepakov, chiropractor. She also relies on the psychological report of Dr. Gabidulina, psychologist dated July 12, 2021, and argues that the insurer examination (“IE”) reports establish that she should be removed from the MIG.
7The respondent argues that the applicant’s accident-related impairments fall within the MIG. It submits that other than the hospital record from the date of the accident, the applicant has not relied on any persuasive medical evidence to support that she should be removed from the MIG. It relies on the IE reports of Dr. Jaroszynski, orthopaedic surgeon and Dr. Seon, psychologist both dated August 27, 2021, who determined that the applicant sustained a minor injury from both a physical and psychological perspective.
8I find that the applicant sustained a minor injury as a result of the accident for the following reasons.
Pre-existing Condition
9I find the applicant is not removed from the MIG because of a pre-existing condition or impairment. The applicant’s submissions highlight various medical conditions and impairments she had pre-accident. For example, she had a stroke in 2003, a heart attack in 2007 and a pre-existing fracture of her right arm from a fall in November 2020. She also had a history of anxiety and depression and had been receiving ODSP for approximately 10 years. She also had significant mobility issues which required the use of a scooter, which she was riding when the accident occurred. The applicant submitted numerous CNRs of her family doctor without pinpointing specific references to those that support her position. From my review of the CNRs, there was no mention of the accident or a medical opinion from a treating practitioner to show that any of her pre-existing conditions were exacerbated or would prevent recovery if she is kept in the MIG.
10It is well established law that the existence of a pre-existing condition on its own is insufficient for MIG removal. Although I acknowledge that the applicant had various pre-existing conditions which resulted in disability, what I find lacking is compelling medical evidence from a treating practitioner supporting that any of these medical conditions would prevent recovery if she is treated within the MIG. This is the test that must be met for MIG removal as per s. 18(2) of the Schedule.
11For the above reasons, the applicant has not met her onus in proving on a balance of probabilities that she should be removed from the MIG due to any pre-existing condition.
Psychological Impairment
12I find the applicant is not removed from the MIG due to an accident-related psychological impairment.
13The applicant relies on the psychological report of Dr. Gabidulina, who diagnosed her with a Moderate Depressive Episode and Somatic Symptom Disorder, with predominant pain as a result of the accident. The respondent relies on the IE report of Dr. Seon who determined that there was no diagnoseable psychological impairment.
14Overall, I prefer the IE report and opinion of Dr. Seon, over the s. 25 report of Dr. Gabidulina for the following reasons.
15First, Dr. Seon reviewed medical records as part of the assessment, whereas Dr. Gabidulina relied solely on the applicant’s self-reports which I find to be unreliable. For example, Dr. Gabidulina’s report states that the applicant fell off her scooter when she was hit by the vehicle, whereas the applicant’s submissions and every other medical record notes that the applicant did not fall off her scooter.
16Second, the applicant’s self-reported symptoms and function post-accident to both assessors were wholly inconsistent, and the assessments were completed a few months apart. For example, she reported to Dr. Gabidulina that she has experienced severe changes in mood post-accident, is sad, socially withdrawn, does not see her grandchildren and rarely leaves her house. However, she reported to Dr. Seon that she is actively engaged in social activities with her children and grandchildren on a weekly basis and denied any decline in social engagement.
17The applicant also acknowledged to Dr. Seon that she had a history of anxiety and depression but stated that her symptoms have not gotten worse post-accident. In addition, Dr. Seon’s report noted that the applicant reported being sad about life events which occurred prior to the accident. For instance, she described being sad about the lack of relationship she had with two grandchildren and the death of her mother and friend. The applicant did not provide any explanation for these discrepancies or challenge the findings of Dr. Seon’s report, except to state that the IE supports her position on MIG removal which I find it does not.
18Third, Dr. Seon’s assessment was conducted in person, and a reader was retained to administer the psychometric tests which is important because the applicant is illiterate. The psychometric testing completed by Dr. Seon was either invalid, or no psychological interpretation could be provided, or the results supported symptom magnification. In contrast, Dr. Gabidulina’s assessment took place over WhatsApp, and the doctor did not explain how the psychometric tests were administered given the applicant’s reading disability. For this reason, I give Dr. Gabidulina’s psychometric test results little weight.
19Finally, other than the OCF-3 which will be discussed further below, there was no other medical evidence to support that the applicant has an accident-related psychological impairment. The family doctor’s CNRs were not helpful because they are not legible. The applicant argues that there are no family doctor’s CNRs citing psychological complaints because the COVID 19 pandemic prevented her from attending. However, I note that the CNRs support that the applicant saw other specialists for issues that are unrelated to the accident (i.e. her cardiac condition) during and after the pandemic had ended.
20For the above reasons, the applicant has not met her onus in proving on a balance of probabilities that she is removed from the MIG because of any accident-related psychological impairment.
Chronic Pain
21I find the applicant is not removed from the MIG due to chronic pain for the following reasons.
22First, I find the medical evidence relied upon by the applicant wholly insufficient in establishing that she suffers from chronic pain because of the accident which would remove her from the MIG. The applicant relies on the hospital emergency record from the date of the accident which establishes that she had bruising and swelling in her left foot. There was no evidence of a fracture and I find this impairment fits within the MIG.
23The applicant also relied on the OCF-3 completed by Dr. Shlepakov, which listed a long list of accident-related impairments such as Whiplash Associated Disorder (WAD III) with neck pain and various soft tissue injuries. The OCF-3 also suggests that the applicant sustained numerous psychological impairments including post-traumatic stress disorder. It is well established that an OCF-3 on its own is insufficient to establish an impairment or disability. There must be objective medical evidence such as contemporaneous medical records to support the diagnosis. Moreover, I find it is not within a chiropractor’s scope of practice to diagnose a psychological impairment which is another reason why I give the OCF-3 little weight.
24Second, other than the psychological report of Dr. Gabidulina which I did not find persuasive there is no medical evidence before me to support that the applicant has any ongoing pain complaints because of the accident or has any functional limitations as a result.
25Finally, in contrast, the respondent relies on the IE or Dr. Jarozynski who determined that the applicant displayed non-organic symptom magnification throughout the assessment. Further, the doctor concluded that there was no evidence of any residual physical impairment and that the applicant sustained soft tissue injuries as a result of the accident which could be treated in the MIG. Contrary to the applicant’s submissions I find this report does not assist her in being removed from the MIG.
26For the above reasons, the applicant has not proven on a balance of probabilities that she is removed from the MIG because of chronic pain.
27The parties agreed that there was $262.72 remaining in the MIG limit. I find that the applicant is not entitled to either OCF-18 in dispute because they both seek treatment outside of the MIG.
The applicant is not entitled to a NEB in the amount of $185.00 per week from December 19, 2020, to November 21, 2022
28Section 12(1) provides that an insurer shall pay a 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 NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities.
29The applicant argues that she sustained various impairments as a result of the accident which have resulted in a complete inability to carry on a normal life. She relies on the aforementioned OCF-3 prepared by Dr. Shlepakov and report of Dr. Gabidulina.
30The respondent submits that the applicant is not entitled to NEBs because she has not proven that she meets the stringent test outlined in Heath. It relies on the above-noted IEs of Dr. Jaroszynski and Dr. Seon who determined that the applicant does not meet the disability test.
31I find the applicant has not met her onus in proving she is entitled to a NEB for the time period claimed for the following reasons.
32First, for the reasons highlighted above, I have given the OCF-3 and report of Dr. Gabidulina little weight.
33Second, I find the applicant’s submissions provided no analysis comparing her pre and post accident daily activities as per the principles in Heath. The applicant’s submissions provided a summary of pain complaints and diagnoses but did not highlight how this evidence supports that she meets the test for NEBs. What I find lacking in this case was any information about what the applicant’s pre-accident activities were or what accident-related impairment prevented her from carrying out those activities. In addition, she did not identify the activities that she values most which would attract more weight under the Heath test.
34I conclude that the applicant has not met her onus in proving on a balance of probabilities that she meets the disability test for NEBs.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have determined that no benefits are overdue.
ORDER
36For the above-noted reasons, I find the applicant sustained a minor injury which is subject to treatment within the MIG. As a result, she is not entitled to either OCF-18 in dispute or interest. In addition, she has not established entitlement to a NEB for the time period claimed.
37This application is dismissed.
Released: April 16, 2025
Rebecca Hines
Adjudicator