Citation: Eweida v. Wawanesa Insurance, 2025 ONLAT 23-008876/AABS

Licence Appeal Tribunal File Number: 23-008876/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:

Zaki Eweida

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Laura Goulet

APPEARANCES:

For the Applicant:

Naman Nanda, Counsel

For the Respondent:

James Schmidt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Zaki Eweida, the applicant, was involved in an automobile accident on July 12, 2021, 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, Wawanesa Insurance, 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 $3500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $649.36 for physiotherapy services proposed by 101 Physio Rehabilitation Centre (“101 Physio”) in a treatment plan/OCF-18 (“plan”) submitted on July 15, 2021?

iii. Is the applicant entitled to $2,460.00 for a psychological assessment proposed by 101 Physio in a plan submitted on September 27, 2021?

iv. Is the applicant entitled to $2,460.00 for a psychological assessment proposed by Elite Specialist Group in a plan submitted on January 23, 2024?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

3In his submissions, the applicant withdrew the issue of his entitlement to an income replacement benefit, listed as issue 4(2) in the Case Conference Report and Order dated February 26, 2024.

RESULT

4The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.

5As the applicant has been found to be within the MIG, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary.

6The applicant is not entitled to an award or interest.

ANALYSIS

The Minor Injury Guideline

7Section 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.”

8An 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 a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9The applicant submits that he should be removed from the MIG based on psychological injuries and a pre-existing condition.

10The parties agree that the MIG limit has been exhausted.

The applicant does not suffer a psychological impairment as a result of the accident that would take him out of the MIG

11The applicant has not demonstrated on a balance of probabilities that he suffered from psychological injuries because of the accident that warrant removal from the MIG.

12The applicant relies on the following evidence of accident-related psychological injuries:

i. On July 19, 2021, Dr.Bill Nikols, chiropractor, completed an OCF-3, indicating that the applicant suffered from “reaction to severe stress and adjustment disorders;” and

ii. A report prepared by Dr. Jacqueline Brunshaw, psychologist, who assessed the applicant on November 20, 2023, and diagnosed him with Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Specific Phobia: Situational Type (Vehicular: driver, passenger), moderate level of severity.

13The applicant submits that upon review of the medical records it can reasonably be concluded that he has suffered from substantial psychological impairments because of the accident that should exclude him from the MIG.

14I give no weight to Dr. Nikols’ diagnosis of “reaction to severe stress and adjustment disorders” because, as a chiropractor, he is not qualified to diagnose psychological disorders.

15I give little weight to the report of Dr. Brunshaw for the following reasons.

16In preparing her report, Dr. Brunshaw only refers to the OCF-3 and the clinical notes and records (“CNRs”) of Dr. Dario Del Rizzo, the applicant’s prior family physician, and not the CNRs of the applicant’s new family doctor, Dr. Amritpal Singh Thind. Although the applicant reported to Dr. Brunshaw that since the accident, he feels like his depressed mood has worsened, I note that on June 22, 2022, Dr. Thind indicated in his CNRs that the applicant has suffered with anxiety for years and suffered depression years ago but reports no recent depression. I also note that Dr. Brunshaw’s report indicates that the applicant was not taking medications prior to the accident, which is contradicted by the CNRs of Dr. Del Rizzo, who noted on July 16, 2021 that the applicant was prescribed Ativan for anxiety on January 13, 2021, six months before the accident.

17Dr. Brunshaw’s report also has internal inconsistencies. Dr. Brunshaw opined that the applicant was unable to perform his essential job tasks and duties as required, even though he reported he only took two or three days off work, and, other than being unable to work overtime, he had been working since the accident. Further, Dr. Brunshaw indicated in one part of the report that the applicant did not report any changes to his social activity since the accident, however she indicated later in the report that he was unable to socialize as he did before the accident.

18Further, Dr. Brunshaw indicated that the clinical tests reveal that the applicant was only experiencing low levels of symptoms of depression and anxiety, but his reporting suggested that his psychological and emotional distress was more significant. As such, it appears that she based her psychological diagnoses on his reporting. I also note that Dr. Brunshaw’s assessment was conducted over two years and four months after the accident.

19Although the applicant directed me to CNRs indicating that has a history of anxiety prior to the accident, he did not refer me to CNRs of any of his treating practitioners indicating that he reported any psychological complaints because of the accident.

20For these reasons, I find that the applicant has not established on a balance of probabilities that he suffered from psychological injuries because of the accident that warrant removal from the MIG.

The applicant does not have a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG

21The applicant has not demonstrated on a balance of probabilities that he has a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG.

22The applicant submits that his pre-existing anxiety is well documented in both of his family doctors’ records as well as in the applicant and respondent’s psychological reports. The applicant further submits that he reported to Dr. Brunshaw that his mood-related symptoms have worsened since the accident.

23I note that Dr. Brunshaw’s report indicates that the applicant is experiencing significant psychological and emotional symptoms that fall outside the MIG and that his current psychological condition has deteriorated to a level of impairment that would prevent him from achieving maximal medical recovery within the confines of the MIG. For the reasons set out above, I give little weight to Dr. Brunshaw’s report.

24The applicant has not directed me to any other medical evidence stating that the applicant’s anxiety precludes recovery if he is kept within the MIG.

25For these reasons, I find that the applicant has not established on a balance of probabilities that there is compelling medical evidence stating hat his pre-existing condition precludes recovery if he is kept within the confines of the MIG.

26As I have found the applicant's injuries to be subject to treatment within the MIG, it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary.

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.

Award

28The 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. Since no benefits were unreasonably withheld, the applicant is not entitled to an award.

ORDER

29For the above reasons, I find:

i. The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.

ii. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. Therefore, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.

iii. The respondent is not liable to pay an award.

iv. No interest is payable.

v. The application is dismissed.