Licence Appeal Tribunal File Number: 23-002956/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:
Bushra Kokab
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Denis Chubar, Paralegal
For the Respondent: Simran Walia, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Bushra Kokab (“applicant”) was involved in a motor vehicle accident on February 22, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).
2Aviva Insurance Canada (“respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied three treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
3The following issues are in dispute:
1 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 limit of the MIG?
2 Is the applicant entitled to $2,252.00 for chiropractic services, proposed by E Clinic United Healing in a treatment pan/OCF-18 (“treatment plan”) dated February 1, 2021?
3 Is the applicant entitled to $2,174.03 for psychological services, proposed by E Clinic United Healing in a treatment plan dated April 12, 2021?
4Is the applicant entitled to $1,920.53 for a Psychological Assessment, proposed by E Clinic United Healing in a treatment plan dated April 5, 2021?
5Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that:
i. I decline to hear the preliminary issue raised in submissions by the respondent.
ii. The applicant has not demonstrated that she suffers from injuries that are outside of the minor injury definition in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
iii. As the applicant remains within the MIG, she is not entitled to the treatment plans in dispute.
iv. As there are no benefits owing, it follows that the applicant is not entitled to interest.
ANALYSIS AND REASONS
Legislation and the Positions of the Parties
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”
6An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG. Documentation of a pre-existing injury or condition—combined with compelling medical evidence stating that the injury or condition precludes recovery if kept within the MIG pursuant to s. 18(2) of the Schedule—can also result in an insured person being removed from the MIG. The Tribunal has determined that chronic pain with a functional impairment may warrant removal from the MIG, as may a psychological condition.
7The burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG.
8Here, the applicant argues that she suffers from psychological impairments and the exacerbation of a prior chronic pain condition, each of which warrants her removal from the MIG. The applicant supports the former claim with reference to the clinical notes and records (“CNRs”) of Dr. Nighat Shaheen, family physician, and the latter claim primarily via an s. 25 psychological assessment report completed by Farzaneh Pariman, psychological associate, under the supervision of Dr. Harinder Mrahar, psychologist, dated March 31, 2021.
9In addition, the applicant relies on Scarlett v Belair Insurance, 2015 ONSC 3635 and Pastore v. Aviva Canada Inc., 2012 ONCA 642. These two decisions, the applicant argues, set precedents that must be followed when determining entitlement to benefits beyond the MIG. They are specifically relevant here for the following reasons. Scarlett establishes “the importance of considering the unique circumstances of each case when determining whether injuries fall within the [MIG].” Pastore establishes “the need for a broad and flexible approach in evaluating accident benefits,” specifically in cases such as this one, where psychological impairments are evident.
10For the above reasons, the applicant seeks to be removed from the MIG, that the three treatment plans in dispute be found to be reasonable and necessary, and that interest be awarded on overdue amounts of the treatment plans in question.
11The respondent counters by introducing a preliminary issue regarding the applicant’s alleged non-attendance at five insurer examinations (“IE”) that were scheduled under s. 44 of the Schedule, which requires an insured person to attend such examinations when set by the insurer. According to the respondent, the applicant did not attend a psychological IE scheduled and rescheduled for April 21, 2021, August 12, 2021, April 19, 2023, and August 22, 2023. The respondent also alleges that the applicant did not attend a physiological IE that was scheduled for August 8, 2023.
12This, the respondent argues, has resulted in incurable prejudice as it has been unable to assess the applicant’s entitlement to every benefit in dispute in this application. As a result, this non-attendance should result in this application being statute-barred under s. 55(1) and 55(1) 2. of the Schedule, which together provide that an insured person shall not apply to the Tribunal if he or she did not comply with an examination required by the insurer in accordance with s. 44.
13The respondent relies on a number of Tribunal decisions: Ritchie v Aviva Insurance Canada, 2022 CanLII 117079 (ON LAT); N.S. v TD General Insurance Company, 2020 CanLII 98735 (ON LAT); 17-001508 v Heartland Farm Mutual, 2018 CanLII 13145 (ON LAT); 18-001429 v Security National Insurance Company, 2019 CanLII 34609 (ON LAT); and 18-001429 v Security National Insurance Company, 2019 CanLII 34609 (ON LAT). The applicant also relies on the Ontario Court of Appeal’s decision in Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457.
14The respondent further takes the position that the applicant has not supported her claim that she should be removed from the MIG, nor has she demonstrated that the treatment plans are reasonable and necessary. The respondent argues that there is minimal or no evidence of chronic pain or fibromyalgia prior to the accident and that there is also no evidence of any earlier psychological condition, so any claim that the accident exacerbated or resulted in either of the above is without merit.
15As for physical injuries sustained in the subject accident, the respondent argues that these were minor, and that the applicant sought medical treatment from her family doctor just twice post-accident. Lastly, the respondent asserts that no weight should be placed on the s. 25 psychological report of Ms. Pariman that was supervised by Dr. Mrahar because no medical documentation was reviewed in the process of compiling this document. The respondent alleges that the report might have been different if it had been discovered that the applicant did not mention accident-related psychological issues to her family doctor.
16For the above reasons, the respondent seeks the dismissal of this application.
Preliminary Issue
17I decline to hear the preliminary issue raised by the respondent, as this is not properly before me.
18It is not reasonable for the respondent to add a preliminary issue at such a late date. As a matter of procedural fairness, the applicant is entitled to notice of the case that she has to meet. Amongst other things, the applicant is entitled to make submissions for this written hearing based on the issues that were listed in the November 6, 2023, CCRO.
19This appears to be the first time that this preliminary issue has been raised. No preliminary issues are noted in the aforementioned CCRO. Moreover, the IEs that the applicant allegedly did not attend were all scheduled to take place between April 21, 2021, and August 23, 2023. It seems clear that the respondent was aware of this potential preliminary issue for more than two months before the case conference was held on October 27, 2023, and that the respondent could have raised it then.
20For the reasons detailed above, I decline to hear this preliminary issue.
The Applicant Remains Within the MIG
21I find that the applicant has not demonstrated that she suffers from chronic pain, psychological impairments, or another condition that is not a minor injury as defined in the Schedule, as a result of the accident. Accordingly, the applicant remains within the MIG and its $3,500.00 limit on treatment. My reasons follow.
Exacerbation of chronic pain
22Much of the applicant’s argument that she warrants removal from the MIG focuses on claims of “chronic back pain and stiffness,” a history of fibromyalgia, recurrent migraines linked to “musculoskeletal issues,” and the psychological stress of eight miscarriages. However, there is little documentation that these issues created a condition of chronic pain or that they were an ongoing matter at the time of the accident.
23The applicant complained of back pain to her family physician, Dr. Shaheen, in some six appointments. But these took place in 2017 and 2018. A lumbar spine x-ray on February 8, 2018, revealed only minor scoliosis. I have been directed to just a single mention of the applicant’s history of fibromyalgia in the medical records before me, which occurs in a medical referral letter written by Dr. Kiran Sahi, obstetrician, dated November 9, 2017, and does not include any supporting evidence. The applicant’s history of migraines is noted in the aforementioned referral letter and in Dr. Shaheen’s records in an entry dated June 26, 2019.
24Further, the applicant denies pre-existing impairments. In the s. 25 psychological assessment report of Ms. Pariman supervised by Dr. Mrahar, it is noted that the applicant “reported having an unremarkable medical and psychiatric history,” and that she “denied any complaints of chronic pain or other chronic health issues prior to the subject accident.” Even the applicant’s argument is speculative. In submissions, the applicant notes that the accident only “likely exacerbated her pre-existing conditions” and states that “trauma from the accident can worsen chronic pain”—claims made without reference to any specific medical evidence.
25Lastly, there is no indication that these alleged prior issues were exacerbated by the accident. The applicant visited Dr. Shaheen on February 22, 2020, where she reported the accident and was diagnosed with headache and neck pain. She then did not attend Dr. Shaheen again until April 19, 2020, when she reported high blood pressure, headaches, and neck pain during a telephone appointment. The accident was not mentioned during the April appointment. Dr. Shaheen does not indicate in his records of these appointments that the accident exacerbated any prior injuries or conditions, or that any pre-existing conditions preclude her maximal medical recovery within the MIG.
Psychological impairment
26Virtually all of the applicant’s claim that she suffered severe psychological impairments as a result of the accident is founded on the s. 25 psychological assessment conducted by Ms. Pariman under the supervision of Dr. Mrahar. But I apply minimal weight on this report, largely due to an over-reliance on the self-reporting of the applicant and the failure to review any of the applicant’s medical documentation in the process of completing this assessment.
27Essentially, this psychological assessment is entirely based on the applicant’s comments to Ms. Pariman during a telephone interview. The applicant detailed how the accident caused ongoing pain in her head, neck, shoulders, lower back, legs, and right knee that resulted in issues with sleep, cognitive functioning, and affective functioning that was making her feel “constantly confused, stressed, frustrated, and anxious.” Tests were administered, including the Beck Depression Inventory, the Beck Anxiety Inventory, the Pain Patient Profile, the Posttraumatic Stress Disorder Checklist, and the Pain Catastrophizing Scale. The results indicated severe depression, moderate anxiety, and trauma-related symptoms.
28However, none of these psychological concerns were relayed to her family physician, Dr. Shaheen. The only evidence that the applicant experienced psychological impairment comes from the applicant’s own account, which was accepted by Ms. Pariman without reference to the applicant’s medical records, which tells a somewhat different story (at least by omission, as the applicant did not report these symptoms to her family doctor). As a result, and in the absence of any corroborating medical evidence, I do not find this report compelling.
29While the applicant’s miscarriages are extensively detailed in the medical evidence, these occurred prior to 2017. Psychological issues related to this do not appear to have been an issue at the time of the subject accident. In the record of an appointment with Dr. Shaheen dated June 1, 2017, some eight weeks after the applicant gave birth, the physician notes that the applicant is “not depressed, good family support.” Dr. Sahi notes in her referral letter dated November 9, 2017 that her appointment with the applicant was “a consultation for family planning.” There is no mention of any related psychological issues.
30I also take note of the applicant’s non-attendance at a number of IEs that were scheduled by the respondent as another factor in my decision to apply minimal weight to this s. 25 assessment report. Although I decline to hear this as a preliminary issue, and have noted my reasons for this decision above, I do so because of the timing of the respondent’s attempt to add this matter. I agree with the respondent on the main aspect of its argument, at least as raised as a defence to this claim. The respondent has well supported its position on the applicant’s non-attendance on IEs that were properly scheduled under s. 44 of the Schedule.
MIG conclusion and treatment plans
31In accordance with the reasons detailed above, the applicant remains within the MIG and its $3,500.00 limit on treatment. Further, as the applicant has been found to remain within the MIG, she is not entitled to the treatment plans in dispute, nor interest.
32I also note that I reviewed the prior court and Tribunal decisions referenced by both parties and found that they were either not entirely relevant to the matter before me or did not present me with anything that impacted on my findings here based on the substantive merits of this application. In addition, I am not bound by other decisions of this Tribunal.
ORDER
33The application is dismissed, and I find that:
i. I decline to hear the preliminary issue raised in submissions by the respondent.
ii. The applicant has not demonstrated that she suffers from injuries that are not defined as minor in the Schedule. She remains within the MIG and its $3,500.00 limit on treatment.
iii. As the applicant remains within the MIG, she is not entitled to the treatment plans in dispute.
iv. As there are no benefits owing, it follows that the applicant is not entitled to interest.
Released: January 23, 2025
Brett Todd
Vice-Chair