Bajwah v. Intact Insurance Company, 2025 CanLII 523

Citation: Bajwah v. Intact Insurance Company, 2025 ONLAT 22-013814/AABS

Licence Appeal Tribunal File Number: 22-013814/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:

Hamida Bajwah

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Bianca Marinescu, Counsel

For the Respondent:

Matthew Stanley, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hamida Bajwah, the applicant, was involved in an automobile accident on May 6, 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, Intact Insurance Company, 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 limit (“MIG”)?

ii. Is the applicant entitled to the treatment plans proposed by Newmarket Health & Wellness Center Inc. as follows:

a) $1,300.00 for physiotherapy services dated September 14, 2021; and

b) $3,515.60 for physiotherapy services dated July 5, 2022?

iii. Is the applicant entitled to the assessments proposed by Imperial Medical Assessments Inc. as follows:

a) $250.00 for a psychological pre-screening assessment dated July 29, 2022; and

b) $2,000.00 for a psychological assessment dated July 29, 2022?

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

RESULT

3The applicant has not established that her accident-related impairments warrant removal from the MIG.

4The applicant is not entitled to the treatment plans in dispute or interest.

ANALYSIS

Minor Injury Guideline

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 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.”

6An insured person 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.

7The applicant submits that she should be removed from the MIG on the grounds of psychological impairment, chronic pain and pre-existing conditions.

The applicant has not established a psychological impairment warranting removal from the MIG

8To establish her claim of accident-related psychological impairments, the applicant relies on a psychological pre-screening report of Dr. Eugene Hewchuk, who provisionally diagnosed the applicant with an adjustment disorder. However, I note the respondent’s submissions that the pre-screening report indicates that the screening was conducted by Ms. Tolmatshov, psychotherapist, and no details were provided as to the supervisory relationship between Ms. Tolmatshov and Dr. Hewchuk, or clarifying who conducted which portion of the screening.

9The respondent argues that as a psychotherapist, Ms. Tolmatshov is not qualified to provide psychological diagnoses, and cites Tribunal caselaw where such pre-screening reports were afforded limited weight. Despite having the right of reply, the applicant did not provide any further submissions or evidence clarifying the supervisory relationship. The respondent further cites its s. 44 psychological assessment report of Dr. Talebizadeh dated October 31, 2022. Dr. Talebizadeh found that the applicant did not meet the diagnostic criteria for any DSM-5 psychological disorders.

10When comparing the applicant’s pre-screening report to the respondent’s s. 44 assessment, I prefer the respondent’s evidence. The applicant has not provided any clarity as to whether the pre-screening interview or testing had been conducted by a psychologist or psychotherapist. In contrast, the respondent’s assessment and testing were conducted by a psychologist. Moreover, Dr. Talebizadeh’s findings of no accident-related psychological impairment, are consistent with the applicant’s medical record.

11The applicant does not direct me to any clinical notes and records (“CNR”) entry from her family physicians where she was diagnosed with an accident-related psychological impairment. Nor was the applicant referred for psychological treatment or counselling. Although the applicant reported general fatigue, tiredness and feeling stressed in the year post-accident, the applicant’s doctors did not appear to link this to the subject accident. Rather, this was consistently noted to be part of the applicant’s fibromyalgia-like symptoms, which had preceded the accident. The applicant also appeared to be taking Lorazepam post-accident, however, I agree with the respondent that the CNRs of Dr. Ismat-Raheem indicate that the applicant reported that she had being using Lorazepam in the past for treatment of her fibromyalgia pain.

12As such, I find that the applicant has not met her onus to prove that she sustained a psychological impairment as a result of the accident.

The applicant has not established chronic pain warranting removal from the MIG

13The applicant submits that given the chronicity of her ongoing pain post-accident, her injuries are not captured within the “minor injury” definition. The applicant relies on the clinical notes and records of her family physicians Dr. Ismat-Raheem and Dr. Shahzad, which show that in the year and a half post-accident, the applicant continued to report pain and stiffness in her neck, back, shoulders, arms and legs. The applicant also reported to her doctors that she found it difficult to walk, due to tiredness. The applicant also points to a reporting letter from her rheumatologist Dr. Samadi, who noted the applicant’s report that her pain had worsened since the accident.

14I find that the evidence does not establish that the applicant developed chronic pain as a result of the accident. I agree with the respondent that the family doctor records do not contain a chronic pain diagnosis post-accident, and the applicant does not refer me to any such diagnosis from a treating physician. Although the applicant did report ongoing neck, shoulder, back, arm and leg pain post-accident, the family doctors did not link this to the subject accident. Rather, Dr. Shahzad consistently noted that these were fibromyalgia like symptoms, as had been found before the accident, and referred the applicant to a rheumatologist for ongoing investigation.

15Without evidence linking the applicant’s ongoing pain to the subject accident, I find that the applicant has not established a basis for removal from the MIG on the grounds of chronic pain.

The applicant is not removed from the MIG due to her pre-existing conditions

16The applicant submits that her pre-accident chronic neck and back pain and fibromyalgia are well-documented by her family physicians. She argues that these conditions pose a barrier to her recovery within the MIG. The applicant further cites the respondent’s s. 44 occupational therapy assessment report of Mr. Beecroft, who confirmed that the medical evidence established pre-existing neck and upper extremity dysfunction and functional limitations. She further relies on the respondent’s s. 44 GP report of Dr. Khaled, who noted the applicant’s pre-accident history of various aches and pains and fibromyalgia and opined that “the accident may cause a flareup in some of these conditions”.

17Although I agree with the applicant that her pre-accident neck and back pain and fibromyalgia were well-documented, the applicant has not met the additional requirement under s. 18(2) of the Schedule. Namely, the applicant has not provided sufficient medical evidence from a treating medical practitioner that acknowledges that her pre-accident conditions impacted on her ability to achieve maximum medical recovery under the MIG.

18Although the applicant points to Dr. Khaled’s findings in his s. 44 report that the accident may cause a “flareup” in some of the applicant’s pre-accident conditions, I agree with the respondent that Dr. Khaled still found that the applicant could recover within the MIG. In his report dated August 24, 2022, Dr. Khaled found that the applicant had sustained only minor strain and strain type injuries from the accident. He reviewed the applicant’s medical history, and noted the pre-accident conditions of fibromyalgia, neck and back pain and right-sided cervical radiculopathy. Dr. Khaled found that the accident may cause a flareup in some of these conditions, but this should only last “a short time” and would not prevent the applicant from achieving maximum medical recovery within the MIG limits.

19The applicant does not direct me to any medical opinion from her doctors finding that her pre-accident condition created a barrier to her recovery within the MIG. Rather, the accident is rarely referenced in Dr. Ismat-Raheem or Dr. Shahzad’s CNRs. Dr. Shahzad regularly saw the applicant in the year and a half post-accident and he continued to investigate her pre-accident fibromyalgia symptoms with ongoing bloodwork and a referral to a rheumatologist. Without a medical opinion or evidence that the applicant’s pre-accident conditions prevented her recovery from her minor strains and sprains, I find that the applicant has not established a basis for removal from the MIG pursuant to s. 18(2) of the Schedule.

20As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Interest

21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing or overdue, the applicant is not entitled to interest.

ORDER

22For the foregoing reasons I find that:

i. The applicant remains within the MIG.

ii. The applicant is not entitled to the treatment plans in dispute or interest; and

iii. The application is dismissed.