Licence Appeal Tribunal File Number: 23-008376/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:
Farkhunda Najem
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Michael Ferrante, Counsel
For the Respondent:
Laura Emmett, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Farkunda Najem, the applicant, was involved in an automobile accident on August 24, 2022, 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, Co-operators General 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 limit?
Is the applicant entitled to medical benefits and a cost of examination expense proposed by E Clinic United Healing in the following treatment plans (“OCF-18s”):
i. $1,920.53 for a psychological assessment dated November 30, 2022;
ii. $2,808.83 for psychological services dated February 17, 2023;
iii. $335.15 ($1,136.55 less $801.39 approved) for physiotherapy services dated November 9, 2022;
iv. $3,675.84 for chiropractic services dated November 30, 2022; and
v. $3,243.68 for chiropractic services dated February 8, 2023;
Is the applicant entitled to $2,501.82 for a chronic pain assessment, proposed by Q Medical in an OCF-18 dated July 6, 2023?
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $278.60 per week from June 27, 2023 to September 6, 2023?
Is the applicant entitled to interest on overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3After reviewing both parties’ submissions and all the evidence I find:
The applicant’s accident-related impairments do not fit within the MIG.
The applicant is entitled to the following OCF-18s recommended by E Clinic United Healing:
i. $1,920.53 for a psychological assessment dated November 30, 2022.
ii. $2,808.83 for psychological services dated February 17, 2023.
iii. $335.15 ($1,136.55 less $801.39 approved) for physiotherapy services dated November 9, 2022.
The applicant is entitled to $2,200.00 plus applicable taxes for a chronic pain assessment, proposed by Q Medical in an OCF-18 dated July 6, 2023.
The applicant is not entitled to the following OCF-18s recommended by E Clinic United Healing:
i. $3,675.84 for chiropractic services dated November 30, 2022; and
ii. $3,243.68 for chiropractic services dated February 8, 2023;
The applicant is not entitled to an income replacement benefit (“IRB”) in the amount of $278.60 per week from June 27, 2023 to September 6, 2023.
The applicant is entitled to interest on the OCF-18s that I have determined to be reasonable and necessary, in accordance with s. 51 of the Schedule.
The respondent is not liable to pay an award.
ANALYSIS
The applicant’s accident-related impairments do not fit within the MIG.
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 sustained a psychological impairment as a result of the accident. She also maintains that she should be removed from the MIG due to chronic pain because she has ongoing pain from her accident-related impairments which continue to persist. The applicant relies on the hospital records, and the clinical notes and records (“CNRs”) of her family doctor, treating clinic and consult notes of treating orthopaedic surgeons: Dr. Levesque and Dr. Rofaiel. She also relies on the report of Dr. Mrahar, psychologist dated January 29, 2023, who diagnosed her with a psychological impairment.
7The respondent argues that the applicant’s accident-related impairments fall within the MIG. It submits that the various CNRs relied upon by the applicant support that she sustained a minor injury. It relies on the insurer examination (“IE”) reports of Dr. Marchie, physiatrist dated May 6, 2023, and Dr. Hines, psychiatrist dated June 6, 2023, who determined that the applicant sustained a minor injury from both a physical and psychological perspective.
Psychological Impairment
8I find that the applicant sustained a psychological impairment which removes her from the MIG for the following reasons.
9First, I find that the applicant’s family doctor’s CNRs support that she sustained a psychological impairment because shortly following the accident she consistently reported symptoms of anxiety to her family doctor between September 2022 to May 2023. The family doctor diagnosed her with general anxiety disorder and prescribed medication. Much was made by the respondent about the fact that the family doctor’s CNRs do not mention the accident. However, there is no evidence before me that the applicant had any pre-existing psychological issues. Further, I find that the onset of the applicant’s psychological complaints started following the accident which were consistent with the symptoms listed on the OCF-3 of Dr. Scarce which noted that the applicant was experiencing symptoms of anxiety post-accident.
11Second, I prefer the s. 25 psychological report of Dr. Mrahar over the s. 44 IE assessment of Dr. Hines. Dr. Mrahar diagnosed the applicant with Post-Traumatic Stress Disorder and Major Depressive Disorder, single episode, moderate. Although I acknowledge that Dr. Mrahar did not review any medical records in completing the assessment I find the doctor’s diagnosis more consistent with the family doctor’s CNRs. Further, I find Dr. Mrahar’s assessment more thorough in that the doctor administered psychometric tests which supported the doctor’s findings.
12Overall, I find Dr. Hines’ assessment to be brief and lacking in detail and analysis. Moreover, Dr. Hines did not administer any psychometric tests or discuss the CNRs of the applicant’s family doctor which note the applicant’s reported symptoms and treatment for anxiety post-accident.
13For the above-noted reasons I find that the applicant has met her onus in proving that she sustained a psychological impairment as a result of the accident which remove her from the MIG.
14Since I have determined that the applicant sustained a psychological impairment as a result of the accident which remove her from the MIG, I need not address whether she is removed from the MIG as a result of chronic pain. I will now discuss whether the applicant is entitled to the OCF-18s in dispute.
OCF-18s in Dispute
15Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. The Tribunal has also determined that treatment is reasonable and necessary if it results in the temporary relief of pain.
16Section 25(1) of the Schedule provides that an insurer shall pay for reasonable fees to complete an assessment. Section 25(5)(a) limits the cost of any one assessment or examination to $2,000.00. The applicant bears the onus of proving on a balance of probabilities that assessment is reasonable and necessary. The jurisprudence supports that to prove that an assessment is reasonable and necessary the applicant must have evidence that she has an accident-related impairment in which the assessment is meant to address.
Psychological Assessment/Treatment
17I find the applicant is entitled to both OCF-18s recommending a psychological assessment in the amount of $1,920.53 and $2,808.83 proposing psychological treatment.
18The OCF-18 dated November 30, 2022, was completed by Dr. Mrahar, and the goal was to reduce or eliminate anxiety, improve emotional and social status, improve sleep, and optimize coping with pain. The purpose of the assessment was to determine the extent of the applicant’s psychological impairment to address rehabilitation needs and recommend treatment. Under the additional comments section, it indicated that Dr. Mrahar conducted a prescreen report which noted that the applicant reported symptoms of poor sleep, difficulty with household chores, symptoms of irritability, sadness and anxiety resulting in social withdrawal. The OCF-18 recommended an assessment for a total cost of $1,920.53, including $200 for completing the form.
19The OCF-18 recommending psychological treatment was also completed by Dr. Mrahar. The goal of the OCF-18 was for pain management to address the applicant’s depression, anxiety, adjustment issues and driving anxiety. The plan proposed 16 sessions of psychological treatment at a cost of $2160, $200 for preparation of the OCF-18 and $448.83 for a progress report for a total cost of $2,808.83.
20The respondent denied both OCF-18s on the basis that the MIG applied and that the $3,500 cap had been reached.
21In light of my findings above, I find the medical evidence supports that the applicant sustained a psychological impairment as a result of the accident. Consequently, I find the goal of the psychological assessment to determine the extent of her impairment and recommend treatment to be reasonable objectives. Moreover, Dr. Mrahar diagnosed the applicant with Post-Traumatic Stress Disorder and Major Depressive Disorder, single episode, moderate, and recommended that she receive psychological treatment. As a result, I find the OCF-18 recommending psychological treatment to be reasonable and necessary. Finally, the respondent did not make any arguments that the cost of either OCF-18s were excessive. I find the cost of the OCF-18 for the psychological assessment reasonable because it falls within the $2,000 cap of s. 25 (5) of the Schedule. Further, I find the recommendation of 16 sessions for psychological treatment over 8 weeks to be reasonable. Consequently, I accept the amounts proposed in both OCF-18s plans to be reasonable.
Chiropractic Treatment
22The applicant is entitled to the partially approved OCF-18 for chiropractic treatment in the amount of $335.15.
23The OCF-18 dated November 1, 2022, was authored by Dr. Rakkar, chiropractor and proposed that the applicant receive 1 to 2 sessions per week of physiotherapy, rehabilitation exercises and chiropractic treatment for a duration of 3 weeks for a total cost of $936.55, plus $200.00 for form completion for a total cost of $1,136.55. The goal of the OCF-18 was pain reduction, increase range of motion and strength to return the applicant to her activities of daily living. Under the additional comments section, Dr. Rakkar noted that there had been moderate improvement to the applicant’s pain levels as a result of treatment.
24The respondent partially approved the OCF-18 in the amount of $801.39 and denied the balance because the $3500 MIG limit had been exhausted.
25I find the applicant is entitled to the balance of the OCF-18 because the plan noted that there had been moderate improvement to the applicant’s pain. Moreover, I also find she consistently reported to assessors that past treatment received resulted in pain relief. As noted above, treatment which results in the reduction of pain is a reasonable goal. In addition, I find that both Dr. Levesque and Dr. Rofaiel supported the applicant’s ongoing need for physiotherapy to treat the applicant’s left ankle sprain.
26For these reasons, I find the applicant has met her onus in proving on a balance of probabilities that the balance of $335.15 is reasonable and necessary.
27The applicant argues that the remaining two OCF-18s recommending chiropractic treatment are reasonable and necessary because the respondent denied them based on its position on the MIG. However, I find that the applicant has not met her onus in proving that these two OCF-18s for chiropractic treatment are reasonable and necessary because she did not submit the OCF-18s as evidence for this hearing. Although I accept that Dr. Levesque and Dr. Rofaiel supported the applicant’s ongoing need for treatment, I have no evidence before me about the goals or cost of the treatment recommended in the OCF-18s. Nor did the applicant’s submissions address these arguments. The applicant allegedly incurred this treatment. However, there are no progress reports before me supporting that the treatment received resulted in any improvement.
28Finally, I reject the applicant’s argument that she is automatically entitled to the OCF-18s because the respondent’s denial was based on the MIG. As noted above, the applicant must still identify the goals of treatment, explain how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. The applicant has not established this in this case. Nor is there evidence before me that these OCF-18s were incurred and resulted in any improvement to the applicant’s ROM or increase in strength.
29For these reasons, I find the applicant is not entitled to either OCF-18 for chiropractic treatment in the amount of $3,675.84 dated November 30, 2022, or $3,243.68 dated February 8, 2023.
Chronic Pain Assessment
30The applicant is entitled to the OCF-18 recommending a chronic pain assessment in the amount of $2, 200.00 plus applicable taxes.
31The OCF-18 was authored by Dr. Shlepakov, chiropractor and recommended a chronic pain assessment in the amount of $2,000, $200.00 for preparation of the plan and $14 for the claimant’s transportation to treatment. The goal of the plan was to investigate the applicant's reported pain complaints to recommend treatment. Under the additional comments of the form, it highlighted the applicant’s ongoing pain complaints regarding her left ankle and that it was interfering with her activities of daily living. The respondent also denied this OCF-18 on the basis that the MIG limits had been exhausted.
32Although I do not accept that all the applicant’s ongoing pain complaints are as a result of the accident, I find that the medical record supports that she sprained her left ankle as a result of the accident which has resulted in ongoing pain despite the passage of time. For example, I find the CNRs of Dr. Levesque, treating orthopaedic surgeon supports that she regularly attended post-accident complaining of pain and swelling in her left ankle which was aggravated by prolonged activity such as standing and walking. Dr. Levesque referred the applicant to Dr. Rofaiel who stated that she be referred to a chronic pain clinic if physiotherapy was unsuccessful. I find that a chronic pain assessment is reasonable and necessary to investigate the applicant’s ongoing pain complaints in her left ankle and recommend treatment to manage same.
33In contrast, the IE of Dr. Marchie diagnosed the applicant with various soft tissue injuries including a sprain to her left ankle which the doctor opined could be treated in the MIG. I give Dr. Marchie’s IE less weight because he has only seen the applicant once. Further, the doctor did not seem to have the consult notes of the applicant’s treating orthopaedic surgeon when he completed the assessment.
34For the above reasons, I find that the medical evidence supports that the OCF-18 recommending a chronic pain assessment is reasonable and necessary. However, I do not find the $14.00 recommended for transportation to treatment to be reasonable because the applicant had resumed driving at this point. Therefore, the applicant is entitled to $2,200 for the chronic pain assessment plus applicable taxes.
The applicant is not entitled to an IRB in the amount of $278.60 per week from June 27, 2023 to September 6, 2023.
35Section 5(1)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, suffers a substantial inability to perform the essential tasks of that employment.
36The applicant has not met her onus in proving on a balance of probabilities that she meets the test for entitlement to an IRB for the time period claimed for the following reasons.
37First, the only evidence highlighted by the applicant’s submissions which supports that she has a substantial inability to carry out the essential tasks of her employment was the OCF-3 completed by Dr. Scarce, chiropractor dated September 8, 2022. I find the OCF-3 outdated and insufficient evidence on its own.
38Second, the applicant’s submissions did not identify what her occupation was, what the essential tasks of her employment were or what accident-related impairment resulted in a substantial inability to perform those tasks. This is the test that must be met. Nor did the applicant refer to the medical evidence relied upon in support of same in her submissions. I find the applicant’s submissions wholly insufficient in providing any information about her occupation or income loss. For these reasons, I find the applicant has not met her onus in proving on a balance of probabilities that she is entitled to an IRB for the time-period in dispute.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-18s that I have determined to be reasonable and necessary.
Award
40The respondent is not liable to pay an award.
41The applicant sought an award under s. 10 of Reg. 664. Under s. 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.
42In analyzing whether an insurer’s conduct in withholding or denying a benefit warrants an award an insurer’s behaviour must be seen as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The threshold for an award is high and the case law is well established that an award is not meant to punish the unsuccessful party at a hearing or penalize an insurer for getting it wrong.
43The applicant submits that the respondent unreasonably withheld the OCF-18s in dispute by maintaining a stubborn position on the MIG despite having medical evidence to the contrary. Further, she incurred the cost of all the OCF-18s in dispute because she required treatment.
44The respondent argues that it is well established law that an insurer will not be subject to an award for simply getting it wrong. Additionally, an insurer is not held to a standard of perfection but is required to make its decision based on the information available at the time. The respondent submits it has not acted in a way that was unreasonable given the information available to it at the time.
45I find that the applicant is not entitled to an award because she did not direct me to any evidence to support that the respondent’s conduct was unreasonable, stubborn, or unyielding in its adjustment of her accident benefit claim. Moreover, other than making the broad argument that the respondent unreasonably withheld or delayed payment of benefits she did not refer me to the evidence she relies on in support of this position. Further, I find that the applicant is not entitled to an award simply because I preferred the findings of her assessor over the s. 44 IE assessor in this case. For these reasons, I find the applicant is not entitled to an award.
ORDER
46For the above-noted reasons, I order as follows:
The applicant’s accident-related impairments do not fit within the MIG.
The applicant is entitled to the following OCF-18s recommended by E Clinic United Healing:
i. $1,920.53 for a psychological assessment dated November 30, 2022.
ii. $2,808.83 for psychological services dated February 17, 2023.
iii. $335.15 ($1,136.55 less $801.39 approved) for physiotherapy services dated November 9, 2022.
The applicant is entitled to $2,200.00 plus applicable taxes for a chronic pain assessment, proposed by Q Medical in an OCF-18 dated July 6, 2023.
The applicant is not entitled to the following OCF-18s recommended by E Clinic United Healing:
i. $3,675.84 for chiropractic services dated November 30, 2022; and
ii. $3,243.68 for chiropractic services dated February 8, 2023.
The applicant is entitled to interest on the OCF-18s that I have determined to be reasonable and necessary, in accordance with s. 51 of the Schedule.
The applicant is not entitled to an income replacement benefit (“IRB”) in the amount of $278.60 per week from June 27, 2023 to September 6, 2023.
The respondent is not liable to pay an award.
Released: April 16, 2025
Rebecca Hines
Adjudicator
