Citation: Rifnaz vs. Allstate Insurance Company of Canada, 2025 ONLAT 23-010537/AABS - A

Licence Appeal Tribunal File Number: 23-010537/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:

Fathima Rifnaz

Applicant

and

Allstate Insurance Company of Canada

Respondent

AMENDED DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Naman Nanda, Counsel

For the Respondent:

Laura Bassett Christopher Lupis, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Fathima Rifnaz (the “applicant”) was involved in an automobile accident on October 5, 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 Allstate Insurance Company of Canada (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:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

2. Is the applicant entitled to the following assessments and services proposed by 101 Assessment in treatment plans (“OCF-18s”), as follows:

(a) Psychological services in the amount of $2,560.00, submitted on October 11, 2022;

(b) Orthopaedic assessment in the amount of $2,460.00, submitted on October 17, 2022; and

(c) Psychological assessment in the amount of $2,460.00, submitted on November 9, 2021?

3. Is the applicant entitled to the physiotherapy services proposed by 101 Physio in OCF-18s, as follows:

(a) $2,398.67 submitted on October 12, 2022; and

(b) $2,052.52 submitted on March 2, 2023?

4. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant remains in the MIG and is not entitled to the disputed OCF-18s. No interest is payable, and the respondent is not liable to pay an award.

PROCEDURAL ISSUES

4The case conference report and order (“CCRO”) issued on March 19, 2024, indicates a dispute over an income replacement benefit (“IRB”) in the amount of $400.00 per week ongoing from November 2, 2021. However, the applicant indicates in her written submissions that she withdraws this issue from the proceeding, and the respondent does not address the applicant’s IRB claim in its submissions. As such, I accept that issue no. 2, the IRB dispute listed in the CCRO, has been withdrawn and will not be considered in this decision.

ANALYSIS

The applicability of the MIG

5I find the applicant has not demonstrated she should be removed from the MIG.

6Section 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.”

7The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2) of the Schedule, which says the MIG limit does not apply if the applicant’s health practitioner determines and provides: (1) compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and (2) that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from her accident-related injuries if kept in 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.

8For this matter, the applicant seeks removal from the MIG because of chronic pain and psychological impairment.

Chronic pain

9I find the applicant has not demonstrated accident-related chronic pain with functional impairment.

10To demonstrate she should be removed from the MIG, the applicant must show she sustained chronic pain with functional impairment that is more than sequalae from her accident-related injuries. The Tribunal has held that chronic pain syndrome—or pain that is a severe, debilitating condition accompanied by functional impairment and distinct from ongoing or recurring pain—qualifies as chronic pain [see, for e.g., 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT); 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT); and Pham v. Coseco Insurance, 2021 CanLII 43546 (ON LAT)].

11The applicant submits that she has consistently complained of accident-related pain to her family doctor and assessors for at least 30 months. She points to medical records by Drs. Shifaya Cader (family physician), Bill Nikols (chiropractor), and Konstantinos Papazoglou (psychologist)—as well as section 44 assessors Dr. Michael Martin (orthopaedic surgeon), Dr. Tatiana Dumitrascu (psychologist), Ms. Faye Perreras (occupational therapist) and Dr. Anthony Marchie (orthopaedic surgeon)—to show that her pain has persisted since the accident. She further relies on the reports of Drs. Papazoglou, Martin, and Marchie to show functional impairment arising from her chronic pain.

12The applicant relies on C.G. v The Guarantee Company of North America, 2020 CanLII 40333 ON LAT (“C.G.”) to show that chronic pain is not a minor injury and does not fall within the definition of the MIG. I agree with this interpretation. She also relies on 17-002907 v Aviva Insurance Canada, 2019 CanLII 22223 ON LAT (“Aviva”) to show that a diagnosis of chronic pain syndrome is not required to remove an applicant from the MIG. I agree with this also.

13The respondent argues that the applicant has not been diagnosed with chronic pain syndrome and that her medical records do not demonstrate functional impairment resulting from what it characterizes as “short-lived” soft tissue injuries. The respondent raises causation as an issue and relies on Dr. Martin’s report to show the applicant sustained post-accident injuries that contribute to her symptomology.

14While I accept that the applicant has experienced pain resulting from her accident-related injuries, I find insufficient evidence of functional limitation that is consistent with a severe and debilitating condition arising from this pain.

15The clinical notes and records of Dr. Cader for December 22, 2021, document the applicant’s reports of pain in the applicant’s neck, left shoulder, and left hip, as well as a complaint of reduced range of motion in her shoulder. However, there is no mention of Dr. Cader performing a physical examination to corroborate the applicant’s functionality at this time. The evidence before me indicates the applicant did not again consult Dr. Cader until nine months later in September 2022, at which time he did perform a physical examination and determined that the range of motion in the applicant’s neck and shoulder was normal, which does not, in my view, support functional impairment. I place little weight on the applicant’s complaints of paresthesia and pain in her hands at this time because the applicant’s submissions do not show that these complaints were contemporaneous to the accident. In my view, Dr. Cader’s examination supports the opinion of Dr. Nikols, who noted in the disability certificate (“OCF-3)” completed on February 8, 2022, that the applicant’s disability should resolve within nine to 12 weeks.

16The applicant complained of pain and difficulty completing her activities of daily living beyond light household work to Dr. Martin on November 28, 2022. However, I did not place full weight on this evidence because Dr. Martin noted that while his examination did reveal pain-related limitations, he believed there were no “consistent objective findings of an accident-related impairment that would cause a disability to the extent [described by the applicant].”

17I find Dr. Martin’s opinion is corroborated by Ms. Perreras’ report, who assessed the applicant’s functionality on November 23, 2022. The applicant reported to Ms. Perreras that, in contrast to her pre-accident functionality, she sometimes required assistance with applying soap when showering, and that she received assistance with dressing herself each day and combing her hair. While the applicant also complained about her walking being affected by knee and left foot pain, I note these symptoms were not reported to Dr. Cader contemporaneous to the accident, and I therefore place less weight on them in my analysis. The applicant also reported limited participation in her household activities since the accident—specifically with cooking, cleaning, laundry, garbage disposal, and grocery shopping.

18I am persuaded that the applicant’s functional complaints are inconsistent with the objective testing conducted by Ms. Perreras. She indicates in her report that the applicant’s range of motion was within functional limits throughout her entire body, save for mild restriction in her lower back flexion and limited left shoulder movements owing to reports of stiffness and pain. Ms. Perreras adds that while the applicant reported difficulties due to left shoulder pain, presented with pain behaviours, and demonstrated limitation in her left shoulder during her evaluation, that there was no information in her medical history to support significant limitations in her left shoulder.

19I find that Dr. Cader’s examination of the applicant’s shoulders in September 2022 produced normal range-of-motion results. The applicant’s submissions do not reference any follow-up or functional concerns arising from the December 2021 imaging diagnostic test results of the applicant’s left shoulder—which Dr. Chung (physician) interpreted as a normal study—and I was not pointed to evidence that Dr. Cader ordered this test owing to accident-related chronic pain as submitted by the applicant. I place little weight on the applicant’s submissions about walking, standing, and sitting difficulties—complaints she made to Dr. Papazoglou in August 2022—because Ms. Perreras tested these functions as part of her assessment and observed little evidence of functional impairment performing these activities.

20I similarly find that Dr. Marchie’s section 44 report does not support the applicant’s claim of chronic pain with functional impairment. While I accept the applicant again reported accident-related pain in her left shoulder—as well as in her neck, and left wrist—I find little evidence of functional impairment documented in Dr. Marchie’s report. Dr. Marchie indicated that, following his physical examination of the applicant, there were no objective findings or evidence to substantiate a disability or limitations in the applicant’s ability to perform her normal living activities. He noted that the applicant had returned to all activities of normal living, except driving, at the time of his assessment. In my view, the applicant’s ability to perform these activities—described as “reduced pace and intensity” by Dr. Marchie—falls short of pain that is a severe, debilitating condition.

21Taken in totality on a balance of probabilities, I find the evidence in this case falls short of establishing chronic pain with functional limitations. While I accept the applicant has experienced pain since the accident, and particularly in her left shoulder, I am persuaded this pain is not a severe, debilitating condition accompanied by functional impairment and distinct from ongoing or recurring pain. Rather, it presents as mere sequelae. As such, I decline to remove the applicant from the MIG on this basis.

Psychological impairment

22I find the applicant had not sustained accident-related psychological impairments that merit removal from the MIG.

23The applicant submits she suffered accident-related psychological impairments arising from several mental health diagnoses offered by Dr. Papazoglou. She asserts she has experienced nightmares about the accident every night, as well as changes to her cognitive performance and emotional status. She also says that she has not returned to driving and reported this to Dr. Marchie 30 months after the accident. The applicant goes on to say that she made corroborating complaints to the respondent’s section 44 assessors, including Ms. Perreras, Dr. Martin, and Dr. Dumitrascu. The applicant relies on psychological testing conducted as part of Dr. Papazoglou’s assessment that showed severe anxiety levels and above-average results for depression and somatic problems. She also says Dr. Papazoglou recommended psychological treatment and cautioned that her symptomology may worsen and be at risk for chronicity if she does not receive intervention. The applicant adds that opinions of Dr. Dumitrascu should be afforded no weight owing to invalid testing results.

24The respondent argues that the applicant’s hospital records, consultations, and clinical notes mention no psychological issues. As such, the respondent reasons that the single assessment the applicant relies on is unsupported. The respondent seeks to further diminish Dr. Papazoglou’s assessment by noting it was done over the phone with a limited review of the applicant’s medical history.

25I agree that the applicant’s claim is not supported by psychological symptomology that was reported contemporaneous to the accident. For example, the applicant reported to Dr. Papazoglou that she experienced nightmares every night since the accident, but her submissions point to little evidence of reporting nightmares to Dr. Cader, or otherwise, in the 10 months that connect the accident and Dr. Papazoglou’s assessment. In fact, I was not pointed to evidence that Dr. Cader documented any psychological concerns since the accident, nor that he referred the applicant for a psychological consultation owing to anxiety, depression, or pain ruminations. I placed little weight on the psychological injuries documented by Dr. Nikols in the OCF-3, as well as his recommendation for psychological evaluation owing to psychological trauma, because I find psychological functioning is outside the scope of practice for chiropractors.

26I also agree that the persuasiveness of Dr. Papazoglou’s report is diminished by a lack of file review and validity testing to corroborate his opinions. In contrast, Dr. Dumitrascu did undertake a review of the applicant’s medical history in her report and determined that there was no evidence of psychological impairment. Further, Dr. Dumitrascu’s assessment included validity measures, which I find supports the reliability of her findings because they enhance diagnostic accuracy. I also preferred Dr. Dumitrascu’s report because she conducted an in-person interview and was therefore, in my opinion, better positioned to make behavioural observations to inform her opinions. For example, she notes that throughout her assessment, she did not observe any pain behaviours that corroborate the applicant’s complaints.

27Taken in totality on a balance of probabilities, I find the evidence in this case falls short of establishing accident-related psychological impairment. There is an absence of psychological complaints contemporaneous to the accident that corroborate Dr. Papazoglou’s diagnoses. I place greater weight on Dr. Dumitrascu’s opinions because they are informed by validity measures, in-person observations, and a review of the applicant’s medical history. As such, I decline to remove the applicant from the MIG on this basis.

The disputed OCF-18s

28The applicant remains in the MIG and I therefore find it is not necessary to consider whether the disputed treatment plans are reasonable and necessary. The parties were ordered by the Tribunal to disclose, in their written submissions, any amounts remaining in MIG, but failed to do so.

Interest

29Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no overdue benefits owing, interest is not payable.

Award

30The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT)]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

31The applicant submits the respondent has unreasonably withheld payment of the disputed medical benefits as well as unreasonably concluded that her injuries fall within the MIG. Given that the applicant’s award claim is based solely on the disputed benefits, I find the respondent cannot be liable to pay an award because there are no benefits payable in this matter.

ORDER

32The applicant remains in the MIG and is not entitled to the disputed OCF-18s. No interest is payable, and the respondent is not liable to pay an award.