Citation: Mahmood v. Intact Insurance Company, 2024 2025 ONLAT 23-000007/AABS

Licence Appeal Tribunal File Number: 23-000007/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:

Samya Mahmood (by their Litigation Guardian Ruqia Mahmood)

Applicant

and

Intact Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Nathan Prince

APPEARANCES:

For the Applicant: Sherilyn Pickering, Counsel

For the Respondent: Megan Murphy, Counsel

HEARD: By way of written submissions

OVERVIEW

1Samya Mahmood, the applicant, was involved in an automobile accident on September 6, 2020, 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 ("MIG") limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $2,195.01 for occupational therapy, proposed by Rehab First Inc. in a treatment plan/OCF-18 submitted December 23, 2020 and denied January 8, 2021?

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

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

RESULT

3The applicant has demonstrated that her impairments warrant removal from the MIG.

4The applicant is entitled to the treatment plan for an occupational therapy assessment in the amount of $2,195.01 plus interest.

5The applicant is not entitled to an award.

ANALYSIS

The applicant has demonstrated that her impairments warrant removal from the MIG

6I find the applicant has demonstrated, on a balance of probabilities, that she should be removed from the MIG.

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."

8Under s. 18(2), an insured may be removed from the MIG if they can establish 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 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.

9The applicant submits that she should be removed from the MIG on the basis of headaches, chronic pain, and psychological impairments. She relies on the clinical notes and records ("CNRs") of her family doctor, Dr. Beenish Arif, the chronic pain report of Dr. Dimitri Louvish, physician, and the affidavit of her mother, Raqui Mahmood.

10The respondent submits that the applicant sustained predominantly soft tissue injuries that fall within the MIG and relies on the section 44 report of Dr. Mohamed Khaled, general practitioner.

The applicant suffers from chronic pain with functional impairment

11I find that the applicant has established, on a balance of probabilities, that she suffers from chronic pain with a functional impairment that would warrant removal from the MIG.

12Chronic pain, by itself, is not sufficient to remove the applicant from the MIG. The chronic pain must be accompanied by functional impairment. The American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th ed. ("AMA Guides") list six criteria for assessing chronic pain claims. I am not bound by the AMA Guides; however, the Tribunal has held that the AMA Guides can be a useful tool for the evaluation of chronic pain. To support a diagnosis of chronic pain under the AMA Guides, the applicant must meet at least three of the following six criteria:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

13The applicant relies on the affidavit of her mother, Ruqia Mahmood, which states that the applicant continues to suffer from daily neck, shoulder, and back pain which impacts her ability to sit or stand for prolonged periods of time, especially during school. From a psychological standpoint, Ms. Mahmood states that her daughter is nervous around vehicles and is worried about being a passenger. Ms. Mahmood advises that she gives her daughter Tylenol or Advil two to three times per week, sometimes more. In addition, Ms. Mahmood indicated that her daughter has withdrawn from several activities due to her ongoing pain. For example, she advised that her daughter no longer paints due to pain from prolonged sitting (she used to paint for two to three hours at a time prior to the accident), she no longer goes to the park or runs, and she has withdrawn from social gatherings with her friends except on rare occasions (once or twice a month).

14The applicant further relies on the chronic pain report of Dr. Louvish, completed on November 21, 2023. Dr. Louvish concluded that the applicant has developed chronic pain syndrome in conjunction with following accident-related injuries:

i. Cervical whiplash myofascial injury, with a note to rule out post-traumatic discogenic pathology;

ii. Bilateral shoulder myofascial injury;

iii. Thoracic spine myofascial injury;

iv. Lumbar spine myofascial injury, with a note to rule out post-traumatic discogenic pathology;

v. Post-traumatic migraine type headaches;

vi. Psychological distress (anxiety, stress, fear and hypervigilance when the applicant is a pedestrian or a passenger in a vehicle, and depressed mood);

vii. Post-traumatic sleep disturbance; and

viii. Difficulties with memory and concentration.

15Dr. Louvish considered the criteria in the AMA Guides as outlined above and found that the applicant met at least 3 of the 6 criteria. I am persuaded by this report because it is consistent with Ms. Mahmood's affidavit, involved a thorough review of the medical file, and was not rebutted by any insurer report. As such, I accept Dr. Louvish's analysis of the AMA Guides criteria and his diagnosis of chronic pain syndrome. Specifically, I find that the applicant has become excessively dependant on her family because she requires frequent assistance in performing most of her daily tasks, personal care tasks, and household activities. In addition, I find that the applicant has withdrawn from social milieu because she has been spending less time with her friends and family and has not been taking part in her pre-accident social activities such as going to the park or attending social gatherings. Moreover, I find that she has failed to restore pre-injury function because she has an inability to engage in the activities in which she ordinarily engaged before the accident, including her educational activities, in full functional capacity. Finally, I find that she has developed psychosocial sequelae including increased stress, depression, nervousness, and vehicle-related anxiety.

16In addition to Dr. Louvish's diagnosis, I find that the CNRs of Dr. Arif further support a finding that the applicant suffers from ongoing pain. The respondent submits that the reporting of pain in Dr. Arif's CNRs is insufficient to conclude that the applicant suffers from chronic pain because the applicant only attended on six occasions with complaints of accident-related pain. In reply, the applicant submits that she did not visit her doctor more frequently due to the withdrawal component of her chronic pain syndrome. I have reviewed the CNRs of Dr. Arif and while I am alive to the number of instances in which the applicant reported accident-related pain, I note that these complaints span a significant period of time, from September 2020 to January 2023. And while there may be a limited number of appointments, I find the consistency of pain reporting over time to be reliable and indicative of the chronicity of her symptomology. Furthermore, I accept the applicant's position that the limited frequency of appointments is due to the withdrawal symptomology she is experiencing as this is consistent with the reporting of withdrawal in several aspects of the applicant's life. As a result, I find that the CNRs of Dr. Arif support the applicant's position that she suffers from ongoing pain.

17The respondent submits that the cessation of physiotherapy treatment in 2021 suggests that the applicant does not suffer from chronic pain. I do not agree. I find the lack of contemporaneous treatment is not persuasive in light of Dr. Louvish's diagnosis of chronic pain syndrome and the consistent reporting of ongoing pain by the applicant. Furthermore, Ms. Mahmood's affidavit indicates that, despite ongoing pain, treatment was halted due to the denial of treatment plans and a lack of resources to self-fund ongoing treatment. As a result, I do not find the lack of ongoing treatment to be determinative of whether the applicant suffers from chronic pain.

18The respondent relies on the s. 44 report conducted by Dr. Khaled on March 25, 2021. I do not find this report to be persuasive. Dr. Khaled conducted a 60 minute in-person examination with the applicant and concluded that she sustained uncomplicated soft tissue injuries and that there was no objective evidence of an ongoing permanent accident-related impairment. I note that Dr. Khaled's report was completed in 2021 and, therefore, does not speak to how the applicant's symptomology has developed over time. His report does not address the applicant's current functional limitations or consider whether the injuries she sustained have since evolved into chronic pain syndrome. Furthermore, Dr. Khaled's conclusion that the applicant had not sustained any objective injuries is not inconsistent with a diagnosis of chronic pain syndrome by Dr. Louvish as chronic pain does not require the presence of objective injuries. As such, I do not find the report of Dr. Khaled to be persuasive with respect to the applicability of the MIG.

19I am persuaded by the report of Dr. Louvish, the affidavit of Ms. Mahmood, and the CNRs of Dr. Arif and find, on a balance of probabilities, that the applicant has demonstrated that she suffers from chronic pain with functional impairment that warrants removal from the MIG.

20As I have already found the applicant to be removed from the MIG based on chronic pain, it is not necessary to consider whether the applicant's headaches or psychological impairments form a basis for removal from the MIG.

The applicant is entitled to the treatment plan for an occupational therapy assessment

21I find on a balance of probabilities that the treatment plan for an occupational therapy assessment is reasonable and necessary.

22To receive payment for a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. 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.

23The OCF-18 in dispute was submitted by Rehab First Inc. on December 23, 2020. It identifies the applicant's injuries as low back pain, shoulder pain, upper arm pain, malaise and fatigue, headache, sleep disorders, emotional difficulties, and limitation of activities due to disability. It lists the goals as pain reduction, return to activities of normal living, and to facilitate safe functional participation in activities of daily living. It notes that the applicant experiences significant barriers in her ability to participate in her pre-collision activities of daily living and school related tasks, resulting in emotional difficulties and social isolation. The treatment plan seeks to remediate and compensate for identified occupational performance issues in order to increase the applicant's safety, her participation in daily tasks, and allow reintegration into her family life and the rest of society.

24The applicant relies on Dr. Arif's CNRs which indicate that the applicant suffers from pain in her neck, back, and shoulder; anxiety and panic attacks; fatigue; and that she has limited range of motion in her shoulders. Furthermore, the applicant reported having difficulty maintaining her position during school hours and noted that she uses multiple pillows to help alleviate pain in her right upper arm, neck, and back. In addition, the applicant advised Dr. Arif that she is unable to participate in household chores to pre-accident levels.

25In denying the treatment plan, the respondent relies on the report of Dr. Khaled. In his report, Dr. Khaled found that there is no objective evidence of ongoing accident-related impairment, that the applicant functions independently, safely and normally at home and at school, and that there is no indication whatsoever for an in-home assessment.

26In weighing the report of Dr. Khaled and the CNRs of Dr. Arif, I am persuaded by the CNRs of Dr. Arif. While Dr. Khaled's report notes that he reviewed the CNRs of Dr. Arif in their entirety, he did not address or comment on the various impairments listed in the CNRs which seem to contradict his assertions. For example, Dr. Khaled states that the applicant has returned to all her pre-loss activities while the evidence in Dr. Arif's CNRs clearly suggests otherwise. In addition, Dr. Khaled found that the applicant's sleep and energy level were normal without providing a basis for this finding and notwithstanding that the applicant reported fatigue issues to Dr. Arif. As such, I find that Dr. Khaled's assessment underreports the applicant's impairments in light of the contemporaneous reports in the CNRs. Moreover, Dr. Khaled's finding of an absence of objective injuries does not imply that the applicant is not suffering from the impairments she reported to her doctor.

27Given the impairments outlined in the CNRs of Dr. Arif above, there are grounds on which to believe that the applicant is experiencing functional limitations that would warrant further investigation by way of an occupational therapy assessment. The cost of the treatment plan is within the limits prescribed by the Schedule and the hourly rates proposed are in line with those payable under the Financial Services Commission of Ontario's Professional Services Guideline.

28Based on the foregoing, I find that the applicant is entitled to the treatment plan for an occupational therapy assessment.

The applicant is entitled to interest

29Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. An amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under the Schedule.

30As I have found that the applicant is entitled to the treatment plan for an occupational therapy assessment, interest is payable on that plan in accordance with section 51 of the Schedule from the date payment became overdue to the date that payment is made.

The applicant is not entitled to an award

31The 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. An award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The applicant has the onus to demonstrate entitlement to an award on a balance of probabilities.

32The applicant submits that an award is appropriate because the respondent unreasonably withheld payment of the treatment plan and failed to provide due consideration to the medical records which showed that the applicant suffered from chronic pain, psychological distress, and numerous conditions outside the MIG.

33I do not agree.

34First, I was not pointed to any evidence which suggested that the respondent failed to provide due consideration to the medical records.

35Second, the applicant is not entitled to an award simply because the insurer did not approve the benefits in dispute. The respondent's decision to deny the treatment plan was based on its ongoing adjusting of the file and its interpretation of Dr. Khaled's report. While I did not find Dr. Khaled's report to be persuasive, the insurer's reliance on it cannot be said to rise to the threshold of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

36For these reasons, the applicant is not entitled to an award.

ORDER

37For the reasons outlined above, I find:

i. The applicant has demonstrated that her impairments warrant removal from the MIG;

ii. The applicant is entitled to the treatment plan for an occupational therapy assessment in the amount of $2,195.01 plus interest; and

iii. The applicant is not entitled to an award.