Citation: Arsang v. Definity Insurance Company, 2025 ONLAT 24-007304/AABS

Licence Appeal Tribunal File Number: 24-007304/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:

Masoumeh Arsang

and

Definity Insurance Company

DECISION

ADJUDICATOR: John Mazzilli

APPEARANCES:

For the Applicant: Neda Nazari-Pruden, Counsel

For the Respondent: Yann Grand-Clement, Counsel

Farsi language Interpreter: Ida Pakdaman

Court reporter: Joni Zhamo

HEARD by Videoconference: March 18, 2025

OVERVIEW

1Masoumeh Arsang, (the “applicant”), was involved in an automobile accident on March 23, 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 Definity Insurance Company, (the “respondent”), 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 (“MIG”) limit? Note: The parties agree the MIG limits have not been exhausted.

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 20, 2022, to March 23, 2024?

iii. Is the applicant entitled to $4.300.00 for chiropractic services, proposed by Dr Nourali in a treatment plan/OCF-18 (“plan”) dated October 17, 2022?

iv. Is the applicant entitled to the assessments/treatment plans proposed by Dr. Shirin Jazayeri, as follows:

a) $5,636.40 for a psychological service, in a treatment plan dated October 27, 2022; and

b) $2,200 for a psychological assessment, in a treatment plan dated November 17, 2022?

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 benefit?

RESULT

3The applicant is not entitled to an NEB in the amount of $185.00 per week from April 20, 2022, to March 23, 2024.

4The applicant remains in the MIG and therefore it is not necessary to consider whether the disputed treatment and assessment plans are reasonable and necessary.

5The applicant is not entitled to interest or an award.

PROCEDURAL ISSUES

Respondent’s Motion to Exclude Documents

6I denied the respondent’s motion to exclude documents contained in the applicant’s brief as follows.

7On March 6, 2025, the respondent filed a notice of motion with the Tribunal to exclude the clinical notes and records (“CNRs”) of Dr. Nouraliel, Chiropractor, up to December 10, 2024. Specifically, the respondent sought to exclude pages 481, 487, 502, 581 and 639 of the applicant’s brief.

8Further, the respondent sought to exclude the Uplands ESL class attendance records served and filed on May 10, 2024, specifically pages 838 to 839 of the applicant’s brief.

9At the hearing, the respondent argued that these documents had not been produced by the applicant in accordance with the disclosure timelines set out in the Case Conference Report and Order dated October 17, 2024, but rather they had only been included in the applicant’s document brief filed and served on February 24, 2024. The respondent further argued that the documents in question speak to the applicant’s activities of daily living. As a non-earner benefit and the MIG are in dispute, it would be prejudicial to the respondent for these documents to be admitted as evidence.

10The applicant argues that documents are relevant to the issues in dispute. She submits that she does not have control over when medical documents are received from the medical facilities, and due to the interruption in the postal system because of the Canada Post strike she did not receive these documents prior to the disclosure deadlines. She submits the documents were disclosed to the respondent within a few days of their receipt. Further, the applicant argues that the respondent did not request the applicant’s ESL file be produced at the case conference.

11I denied the respondent’s request and allowed the documents in question to be admitted into evidence.

12Upon consideration of the parties’ submissions, I find that the prejudice to the applicant of excluding these documents is significant. Further, while I agree that the applicant did not comply with the CCRO or Rule 9 of the Licence Appeal Tribunal Rules, 2023 with respect to disclosure, the respondent has had the documents since February 24, 2024, and had an opportunity to make submissions on them at the hearing.

Respondent’s Motion to Include Medical Reports

13I granted the respondent’s request to enter medical reports into evidence as follows.

14On March 11, 2025, the respondent filed a Notice of Motion with the Tribunal seeking permission to include a neurology examination report from Dr. Baskind, neurologist, dated February 21, 2025, as well as a general physician examination report of Dr. Seung-Jun Lee, dated February 21, 2025.

15The respondent argues that it has the duty to adjust a claim on an ongoing basis and as a result, it commissioned the assessments. It does not dispute that the reports were produced past the production deadline in the CCRO, but rather takes the position that the applicant was aware that reports would be written following her assessment that took place in January 2025, and that they had no control of when the reports would be finalized. It argues that the reports are highly relevant to the MIG and the treatment plans in dispute and as such the prejudice of not allowing the reports into evidence outweighs any prejudice to the applicant.

16The applicant argues that admitting these reports would amount to trial by ambush as they had only been disclosed to the applicant six days before the hearing. She further argued that as the application was filed in May 2024, the respondent had ample time to conduct their s.44 assessments given that the accident occurred in March of 2022. She further argues, in the alternative, that these reports should be given less weight as the applicant’s injuries were more severe following the accident then they are today therefore the more recent assessments should be given no weight then the ones conducted closer to the time of the accident.

17I have considered the parties’ positions and determined that the reports may be submitted into evidence, but that their late filing will go to the weight I assign these reports. I agree that the applicant was aware of the assessments since January 2025, but I find that as the reports were only served six days before the hearing, and after the document exchange deadline the applicant is prejudiced by the late disclosure of the reports.

18In addition, the applicant is also prejudiced because of the applicant’s inability to cross-examine the respondent’s assessors as they did not testify at the hearing. It is important to note that while I found the reports to be probative, I did not rely on the above reports in my decision as the respondent’s remaining evidence establishes its position on the issues in dispute.

ANALYSIS

Is the Applicant Entitled to a Non-Earner Benefit from April 20, 2022, to March 23, 2024?

19I find that the applicant has not established that as a result of the accident she suffers from a complete inability to carry on a normal life.

20Section 12(1) provides that an insurer shall pay an 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 Mut. Ins. Co., 2009 ONCA 391, which focuses on a comparison of the applicant’s pre- and post-accident activities.

21The applicant submits that she has suffered a complete inability to carry on a normal life, and relies on an OCF-3 dated April 5, 2022, completed by Dr. Nouraliel, chiropractor. Dr. Nouraliel anticipates the duration of the applicant’s disability to be more than twelve weeks due to “post accident sleep & psychological disturbances, multiple injuries, severity of the applicant’s symptoms, ongoing numbness/tingling in left hand/right leg, concussion, a history of anxiety and caregiver.”

22The applicant testified that pre-accident she was educated in Iran as an IT engineer and worked as an accountant and IT manager in Iran and that she had just opened a beauty clinic in Iran before coming to Canada in 2018, with her two children. While in Canada she obtained her certificate as a laser technician and skin therapist in 2019. She had begun to open a beauty clinic in Montreal with a friend, however Covid-19 interrupted their plans and subsequently she returned to Toronto in September of 2021, where she planned to work as a beauty technician, while also attending ESL classes to improve her English language skills.

23The applicant further testified that pre-accident she was independent in her personal care, and that she did all the shopping, cooking, cleaning for herself and her two children. She testified that she enjoyed riding her bike with her children for exercise and occasionally she would meet with friends at the mall.

24As a result of the accident the applicant testified that she has pain in her lower back, and to her right knee, and suffers from headaches and ear pain that prevent her from being able to engage in her pre-accident activities. She testified that after the accident she was in bed for a very long time and required the assistance from friends who would sometimes bring her prepared meals and help with her cooking, grocery shopping and cleaning and that her eldest son would do the laundry.

25In addition to her physical injuries, the applicant testified that she was psychologically affected by the accident because she had plans for the future and that she worried about her children because her husband was not in Canada to assist. She further testified that she does not drive far because of back pain and anxiety related symptoms and that she is bothered by rainy conditions as a pedestrian and a driver as the subject accident occurred on a rainy day.

26The respondent argues that the NEB test is the toughest test to meet in accordance with the Schedule. It argues that the applicant was a housewife and primary caregiver of her two children pre-accident, and that she remained the primary caregiver to her children and housewife post-accident. It further argues that the applicant’s diagnosis of breast cancer seven months after the accident and the chemotherapy and surgery associated with her treatment are the reasons for her limitations and not the subject accident.

27I prefer the evidence that was tendered by the respondent because it took a multidisciplinary approach in its assessment and denial of the applicant’s claim to the NEB and because the medical assessors specifically addressed the applicant’s complete inability to carry on a normal life, which is the burden she was required to meet , and I found its reports to be more persuasive as a result. As noted above I did not rely on the respondent’s late filed evidence in my decision.

28The respondent relied on the neurological report of Dr. Baskind, neurologist dated April 5, 2023, the report of Dr. Rubenstein, psychologist dated March 13, 2023, and the report of Dr. Lee, general physician dated June 14, 2022. Each assessor opined that from their medical area of expertise, the applicant does not suffer a complete inability to carry on a normal life and I accept their opinions for the following reasons:

29Dr. Lee’s musculoskeletal assessment of the applicant did not find valid indicators to support ongoing accident-related musculoskeletal injury or impairment and that the applicant sustained uncomplicated soft tissue injuries without objective evidence of musculoskeletal trauma.

30Dr. Baskind noted that the applicant complains of headaches and left ear pain, however from a neurological perspective Dr. Baskind’s examination of the applicant did not find any neurological injuries or impairment as a result of the accident.

31Finally, Dr. Robenstein opined that the applicant did not sustain any diagnosable psychological impairment as a result of the accident and that there is no accident-related mental impairment providing any barrier to the applicant’s ability to carry on her normal daily activities or any others toward which she might be inclined from a psychological perspective.

32The applicant’s medical evidence was not persuasive to support her claim for an NEB because the applicant’s medical evidence in this regard is mainly supported by her treating chiropractor and I assigned less weight to this evidence because I find that the multidisciplinary medical assessments undertaken by the respondent to be a more comprehensive assessment of the applicant’s accident-related injuries.

33In addition, the applicant’s family physicians’ clinical notes and records provided as evidence are approximately 350 pages that are from Sunnybrook Hospital regarding the applicant’s diagnosis/treatment/pathology of her breast cancer which was diagnosed approximately seven months after the subject accident and are not related to or as a result of the subject accident. While I am alive to the applicant’s accident-related psychological complaints I will further address her psychological complaints below in my decision.

34Finally, the applicant’s testimony does not support her entitlement to an NEB because the evidence shows that the applicant did continue to be the primary caregiver to her two children, she was also able to attend ESL classes shortly after the accident and the applicant testified that she obtained her driver’s licence in November 2023.

35The applicant further testified that although she may have needed some assistance with some meals, cleaning, and laundry, she needed occasional help with these items and not the constant help that she required after chemotherapy and surgery. This is further supportive evidence that her accident-related injuries did not cause her to suffer from a complete inability to carry on a normal life.

36While I acknowledge the applicant’s ongoing chemotherapy treatments and the side effects associated with her treatments, the applicant has not met her onus to prove entitlement to an NEB because her accident-related injuries did not cause her to suffer from a complete inability to carry on a normal life.

37Accordingly, I find on a balance of probabilities that the applicant has not established entitlement to an NEB from April 20, 2022, to March 23, 2024.

The applicant has not demonstrated that she should be removed from the MIG

38I find that the applicant has not demonstrated that she should be removed from the MIG.

39Section 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.”

40An 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 injury or 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.

41At the outset of the hearing the parties confirmed that the issues in dispute remained as listed in the Case Conference Report and Order, however during the hearing the parties advised me that the MIG limits had been exhausted. I accept that the MIG limits have been exhausted on consent of the parties, therefore my decision with focus on weather the applicant should be removed from the MIG.

42The applicant argued that as a result of the accident she experiences psychological and emotional problems that cannot be properly addressed without treatment and as such she should be removed from the MIG. The applicant relies on a report from Dr. Jazayeri, psychologist, arising from a psychological assessment on October 2, 2022.

43The respondent argues that the applicant should remain in the MIG as her accident-related injuries fall within the parameters of the MIG. They further argue that the applicant’s psychological complaints are related to her breast cancer diagnosis approximately seven months after the accident and her frustration with her immigration status in Canada. The respondent relies on a psychological report from Dr. Rubenstein dated March 13, 2023.

44The applicant testified that prior to the accident her family doctor wanted to refer her for psychological treatment. She testified that she and her children participated in psychotherapy as her children were struggling with their return to Toronto because they preferred living in Montreal because they had more friends in Montreal.

45She testified that she required some help dealing with strategies on how to help her children cope with the move as her husband remained in Iran. Further, the applicant testified that although at the time of the accident she only had her G-2 drivers licence she now has obtained her G-1 and is afraid of driving and becomes anxious, especially on rainy days.

46In his report, Dr. Jazayeri noted that the applicant had no pre-existing psychological or psychiatric problems and that following the accident, the applicant sought psychological attention from Dr. Kalantar to treat adjustment problems. The CNRs from Dr. Kalantar were not provided as evidence.

47Dr. Jazayeri noted that his observational findings were limited due to the assessment being conducted by telephone. Dr. Jazayeri administered the Beck depression inventory questionnaire (21 item questionnaire), the Beck Anxiety Inventory (BAI) another 21 item questionnaire and the stress sub scale of depression anxiety stress scale (DASS) with 14 self report items.

48Dr. Jazayeri opined that the applicant met DSM-V diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood and disturbed sleeping pattern. Dr. Jazayeri recommended 20 sessions of one hour psychotherapy with the goal of treatment to be coping with post-accident situation, lowering her level of anxiety, especially while being in a car, increasing her tolerance for frustrating situations, learning to control negative automatic thoughts, lowering her level of depression, increasing her level of sleep, and increasing her functioning level in all domains.

49I place more weight on Dr. Rubenstein’s report because I find Dr. Rubenstein’s assessment to be to more comprehensive than that of Dr. Jazayeri. Dr. Rubenstein’s assessment included a thorough file review of the applicant’s medical history and it was conducted in person, rather then over the telephone. As noted above, Dr. Jazayeri’s assessment was conducted over the phone, and he noted in his report that the telephone assessment provided minimal clinical impressions.

50In addition, I prefer Dr. Rubenstein’s report because his testing was not entirely based on the applicants self reporting. Rather, his testing including objective tests that were administer to the applicant. Dr. Rubenstein administer the pain patient profile(P3), structured inventory of malingered symptomatology (SIMS) and the beck depression inventory-II(BDI-II) to the applicant.

51Dr. Rubenstein opined that the applicant’s approach to the SIMS indicate elevations across several validity scales, with relevant over reporting where somatic, affective, and cognitive symptoms are concerned and that the current findings provide no evidence which would warrant any diagnosis according to criteria set out in the Diagnostic and Statistical Manual of Mental Disorder, fourth edition (DSM-IV). On this basis Dr. Rubenstein opined that the applicant has not sustained any diagnosable psychological impairment as a direct result of the subject accident.

52In sum, I accept and prefer Dr. Rubenstein’s evidence because Dr. Rubenstein conducted psychological testing that provided objective findings supported by clinical impressions. Dr. Rubensteins’s in depth assessment was also corroborated by the applicant herself as she testified that Dr. Rubenstein’s testing was long and consisted of approximately 200 questions.

53Accordingly, I find that the applicant has not met her onus to prove she should be removed from the MIG because of her psychological condition.

54I find that on a balance of probabilities the applicant has not established that she should be removed from the MIG.

The OCF-18s in dispute

55The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed treatment plans is not required.

Interest

56Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest is not payable.

Award

57The applicant sought an award under s. 10 of Reg. 664. However, at the hearing the applicant did not make any submissions in this regard and therefore the applicant has not met her onus to prove entitlement to an award. The applicant is not entitled to an award.

ORDER

58It is order that:

i. The applicant is not entitled to an NEB.

ii. The applicant is subject to the MIG.

iii. As the applicant is subject to the MIG, it is not necessary to consider if the disputed treatment and assessment plans are reasonable and necessary.

iv. As no benefits are due, no interest is due.

v. The applicant is not entitled to an award.

vi. The application is dismissed.