Citation: Khalifa vs. Intact Insurance Company, 2025 ONLAT 23-008279/AABS

Licence Appeal Tribunal File Number: 23-008279/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:

Mahmoud Khalifa

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kevin Yarde

APPEARANCES:

For the Applicant:

Malcolm H Zoraik, Counsel

For the Respondent:

Megan Murphy, Counsel

HEARD:

In Writing

OVERVIEW

1Mahmoud Khalifa, the applicant, was involved in an automobile accident on August 12, 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 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 therefore subject to treatment within the $3,500.00 Minor Injury Guideline ("MIG") limit?

ii. Is the applicant entitled to an income replacement benefit in the amount of $295.32 per week from January 13, 2023, to date and ongoing?

iii. Is the applicant entitled to $2,486.00 for psychological services, proposed by Dr. Amena Syed in a OCF18/treatment plan dated February 27, 2023?

iv. Is the applicant entitled to $4,959.75 for psychological & counselling services, proposed by Dr. Leon Steiner of Pinnacle Health Networks in a OCF18/treatment plan dated September 21, 2023?

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

RESULT

3The applicant is subject to the MIG treatment limits.

4The applicant is not entitled to an income replacement benefit.

5The applicant is not entitled to the treatment plans in dispute.

6As there are no overdue benefits, the applicant is not entitled to interest.

PROCEDURAL ISSUE

7I agree with the applicant and find the submissions of the s.25 psychological assessment of Dr. Leon Steiner, psychologist, is not late and therefore does not prejudice the respondent.

8Rule 9.4 of this Tribunal's Common Rules of Practice & Procedure holds that "If a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal."

9In its written submissions, the respondent argued that the July 24, 2023, report of Dr. Steiner was not provided until August 20, 2024, and when it was contained within the applicant's written submissions. The respondent further submits that a Section 33 request for records was made on April 10, 2023, and May 12, 2023, and the requests were not answered by the applicant.

10In its reply to submissions, the applicant submitted the psychological assessment report of Dr. Leon Steiner of July 24, 2023, was provided to the respondent by way of facsimile on September 21, 2023, at 12:47pm. A copy of the fax transmission was sent to the accident benefits adjuster. The applicant further submits the respondent did not list this report in the documents requested from the applicant in the respondent's case conference summary.

11This report I find to be relevant to the subject matter of the proceeding and otherwise admissible pursuant to s. 15(1) of the Statutory Powers Procedure Act, I find that the respondent has not been prejudiced as I find the applicant provided proof of the production of these records. Therefore, under Rule 9.4 I permit the applicant to rely on the report of Dr. Leon Steiner of July 24, 2023, and admit it into evidence.

ANALYSIS

Applicability of the MIG

12Section 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."

13An 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.

14The applicant relies on the s.25 report dated July 24, 2023, of Dr. Leon Steiner, Psy.D., C. Psych. Dr. Steiner opined that the applicant suffers from major depressive disorder, mixed anxiety, depressed mood, specific phobia situational and somatic symptom disorder all due to the accident. Dr. Steiner submits that these symptoms should have the applicant fall outside the MIG. A range of psychometric procedures were administered to the applicant including the Beck Anxiety Inventory (BAI); the Beck Depression Inventory-II (BDI-II); and Miller Forensic Assessment of Symptoms Test (M-FAST). Both the BAI and BDI-II testing results showed "severely elevated". The applicant's M-FAST results showed "within normal limits" except for the scale for negative image and unusual symptom course which showed "elevated". Dr. Steiner further submits that the applicant requires multiple blocks of treatment. Dr. Steiner suggests cognitive behavioural oriented psychotherapy, exposure therapy, driving/passenger reintegration assessment, and relaxation therapy are needed to assist the applicant in his recovery.

15The applicant submits he should be removed from the MIG because of a psychological impairment. He submits that he suffers from feeling anxious and depressed as a result of the accident and that these symptoms have developed into depression and emotional distress. The applicant also argues that he has pre-existing anxiety and depression due to his experiences during the Syrian Civil War. Therefore, the applicant argues that due to his inability to obtain maximum medical recovery due to his pre-existing psychological injuries he should be removed from the MIG.

16The respondent submits that the applicant suffers from mere sequelae from the accident which do not warrant removal from the MIG. The respondent relies on the assessment report of Dr. Alan Chan, psychologist, dated November 22, 2023. Dr. Chan conducted a semi-structured diagnostic interview for the applicant for AXIS 1 disorders, mood, substance disorders, anxiety disorders and somatoform disorders and found no indications of anxiety, depression or post-traumatic stress disorder. The Miller Forensic Assessment of Symptoms Test (M-FAST) and Personality Assessment Inventory (PAI) revealed that the applicant may not have responded in a completely forthright manner and the degree of anxiety, and fears were atypical. Based on these findings, Dr. Chan concluded there was no credible evidence to support the diagnosis of a psychological impairment.

17Furthermore, the applicant did not immediately seek medical attention after the accident. On August 19, 2022, he went to KW Urgent Care Centre where he was diagnosed with back pain. The applicant's results were normal, and the applicant was told to take Advil. Also, the clinical notes and records do not support that the applicant suffers from an ongoing psychological impairment.

18I agree with the respondent that the applicant has not established grounds for removal from the MIG. To meet his burden, the applicant must provide medical evidence showing the applicant's injuries are not minor or mere sequelae. I also find that the applicant has not provided sufficient medical evidence to meet his burden of showing that he cannot reach maximal recovery within the limits of the MIG on basis of his accident-related impairments. I find his physical examination to be unremarkable as the s.44 reports show the applicant suffered from back pain. I am persuaded by Dr. Chan's report of November 22, 2023, which found no credible evidence to support a diagnosis of a psychological impairment disorder. I also find there were credibility issues during the psychological testing.

19For the above reasons, I find that the applicant has not supported his claim to be removed from the MIG on the grounds of psychological impairment. He remains within the MIG and is subject to the $3,500.00 treatment limit.

Income Replacement Benefits

20I find that the applicant is not entitled to income replacement benefits ("IRBs")

21To receive payment for pre-104-week IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

22The applicant submits that he is entitled to an IRB in the amount of $295.32 per week from January 13, 2023, to date and ongoing because prior to the accident he was working full time as a window packer at Strassburger Windows and Doors and as a result of the accident he can no longer perform the essential tasks of this employment. The applicant submits that his duties consisted of standing, walking, bending and lifting. The applicant relies on Dr. Steiner report dated July 24, 2023, in which he discusses the applicant's employment. Dr. Steiner opines that given the applicant's current limitations both mental and physical it may be necessary to undergo a transferable skills analysis and a psych vocational assessment for an alternate employment.

23On February 6, 2023, the applicant met with Mr. Peter Ramos, kinesiologist, for an Independent Medical Examination Functional Abilities Evaluation. In his s.44 report, Mr. Ramos found that the applicant's overall results were unreliable as a measure of his current functional abilities due to indicators of inconsistent and/or invalid effort. Mr. Ramos found that the applicant's lifting and carrying strength was within the sedentary level, while pushing and pulling strength was within the light level. Based on functional testing results, Mr. Ramos opined that the applicant demonstrated the physical capacity to meet some, but not all, the physical demands of his pre-accident employment as a packer at Strassburger Windows and Doors.

24The Disability Certificate form ("OCF3") dated August 23, 2022, completed by Rahila Javed, physiotherapist, from of Galen Multidisciplinary Rehabilitation Clinic, submits the following injury and sequelae information: Other sprain or strain of cervical spine, sprain or strain of thoracic spine, sprain or strain of lumbar spine, sprain or stain of shoulder joint, patellofemoral disorders, rotator cuff syndrome, sleep disorder unspecified, headache.

25The respondent relies on the in-person assessment of January 12, 2023, by G.P. Dr. Pankaj Bansal. Dr. Bansal reported that strength testing in the upper extremities showed non-organic give-way while strength testing in the lower extremities was with full power bilaterally. Cervical active range of movement demonstrated approximately 75% of full in all ranges. Bilateral shoulder active range of movement was demonstrated as full throughout. Dr. Bansal opined that there were no signs of musculoskeletal, orthopaedic or neurological injury. He noted that the prognosis for recovering from soft tissue type injuries is a maximum three months. As such, Dr. Bansal determined that the applicant does not suffer a substantial inability to perform the essential tasks of his employment or self-employment as a result of the accident. Dr. Bansal recommended that no work modifications and or accommodations were required.

26I find the applicant did not provide evidence to show that he meets the pre-104 test. Other than an OCF-3, there is no medical evidence before me to substantiate the applicant's allegations that he was unable to continue working as a packer due to pain and anxiety. The evidence does not establish that the applicant suffers a substantial inability to perform the essential tasks of that employment as required by the pre-104 test established in the Schedule.

27The applicant has the onus of proving his entitlement to income replacement benefits. He has not discharged that onus. I am persuaded by the reports of Dr. Bansal and Mr. Peter Ramos that the applicant has not met the requirements of the pre-104 IRB test. Therefore, I find the applicant is not entitled to income replacement benefits.

28As I have found that the applicant has failed to prove that his 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

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.

ORDER

30I find that:

i. The applicant is subject to the MIG treatment limits.

ii. The applicant is not entitled to the treatment plans in dispute.

iii. The applicant is not entitled to an income replacement benefit.

iv. As there are no overdue benefits, the applicant is not entitled to interest.