Citation: Smith v. Intact Insurance Company, 2026 ONLAT 24-011096/AABS

Licence Appeal Tribunal File Number: 24-011096/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:

Lisa Smith

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Bianca Marinescu, Counsel

For the Respondent:

Eluxmeenah Rishihesan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Lisa Smith, the applicant, was involved in an automobile accident on November 3, 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 section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? The parties agree the MIG limits have not been exhausted.

ii. Is the applicant entitled to $4,217.71 for chiropractic services, proposed by Inline Rehabilitation Centre Inc. in a treatment plan/OCF-18 (“plan”) submitted April 5, 2023?

iii. Is the applicant entitled to $3,540.45 for chiropractic services, proposed by Rehabilitation Centre Inc. in a plan submitted July 12, 2023?

iv. Is the applicant entitled to $5,586.07 for psychological services, proposed by HealthSpot Assessments Inc. in a plan submitted May 13, 2024?

v. Is the applicant entitled to $2,200.00 for a psychiatric assessment, proposed by HealthSpot Assessments Inc. in a plan submitted February 19, 2024?

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

RESULT

3The applicant is subject to the MIG.

4As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

5As there are no overdue benefits, the applicant is not entitled to interest.

ANALYSIS

Are the applicant’s injuries predominantly minor?

6I find the applicant’s injuries are predominantly minor injuries subject to treatment within 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.”

8An 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.

9The applicant submits she has pre-existing medical conditions, namely right knee strain/sprain and mental health challenges that prevent her from achieving maximal recovery within the MIG, and she has accident-related psychological impairments including adjustment disorder with mixed anxiety and depressed mood, and somatic symptom disorder. The applicant submits that she should be removed from the MIG on the ground of pre-existing injuries, and psychological injuries.

10The applicant relies on the clinical notes and records (“CNRs”) of the WSIB Lower Extremity Specialty Program report from October 19, 2022 to January 23, 2023, prepared by Steven Phung, physiotherapist, the OCF-3 dated December 7, 2022, prepared by Mr. Kevin Bar, chiropractor, the CNRs of Dr. Ivan Hanna, physician, the psychological assessment dated February 28, 2024, supervised by Dr. Shirin Jazayeri, psychologist, the consultation report dated October 19, 2022, prepared by Dr. John Harrington, orthopaedic surgeon.

11The respondent submits the applicant’s accident-related injuries fall within the MIG and the applicant has not met her onus to demonstrate that her pre-existing injuries warrant removal from the MIG.

Does the applicant have pre-existing conditions that prevent maximal recovery?

12I find that the applicant has not met her onus in demonstrating that her pre-existing conditions prevent her from achieving maximal recovery if she is kept within the MIG limit.

13I agree with the applicant’s position that she had a pre-existing injury, specifically, right knee sprain/strain due to a work-related injury that occurred on May 8, 2022 approximately six months before the accident. I find, based on a review of Dr. Harrington’s report and the CNRs of Dr. Hanna including the WSIB Lower Extremity Specialty Program, her work-related right knee sprain/strain injury resolved on January 23, 2023. The CNRs dated January 23, 2023 also note “she presented with full functional range of motion and strength in her right knee … she is cleared to return to work … full time hours with no restrictions.” However, I was not directed to evidence from her health care provider that her pre-existing injury prevents her from achieving maximum medical recovery if she is kept within the MIG limit. Without such evidence, there is no basis for me to find that her pre-existing right knee sprain/strain prevents her from achieving maximal medical recovery within the MIG limit.

14I have reviewed the CNRs of Dr. Hanna and it notes the applicant complained of anxiety and insomnia in June 2022 and again in July 2022. Within Dr. Hanna’s CNRs the WSIB Community Mental Health Program Assessment Form prepared by Dr. Sonia Singh, psychologist, dated June 24, 2020 notes the applicant was previously diagnosed with depression and anxiety in 2018 or 2019; however, I was not directed to evidence that her pre-existing psychological impairment was diagnosed by a medical professional or that it prevents her from achieving maximal medical recovery within the MIG limit.

15The respondent submits the applicant’s pre-existing right knee pain has resolved and she has not met her onus to demonstrate her history of depression, anxiety, and adjustment disorder prevents her from achieving maximum medical recovery within the MIG limit.

16Having considered the evidence before me, I find that the applicant has not met her burden of proving that her pre-existing right knee sprain/strain and her pre-existing psychological impairment fall preclude recovery if she remains within the MIG.

Does the applicant have a psychological impairment?

17I find the applicant has not met her burden to prove that she suffers from a psychological impairment that warrants removal from the MIG.

18To establish accident-related psychological impairments, the applicant relies on the section 25 psychological assessment report, dated February 28, 2024. The applicant submits that Dr. Jazayeri’s report and diagnosis of adjustment disorder with mixed anxiety and depressed mood, and somatic disorder should hold more weight than the section 44 report, dated March 27, 2024, prepared by Dr. Marc Mandel, psychologist because Dr. Mandel relies on broader instruments that are not specifically designed to diagnose adjustment disorder.

19I find the applicant has not directed me to how Dr. Mandel’s testing is insufficient. The applicant argues Dr. Mandel’s section 44 assessment relies on the Personality Assessment Inventory (“PAI”), the Multidimensional Pain Inventory Report (“MPI”), and the Structured Inventory of Malingered Symptomology (“SIMS”) and that these tests are not specifically designed to diagnose adjustment disorder and the Adjustment Disorder – New Module 20 (“ADNM 20”) used by Dr. Jazayeri in the section 25 report is more psychometrically appropriate; however, the applicant provided no basis for this argument or evidence regarding what tests are more appropriate.

20The applicant also relies on the Tribunal decision in Elbahja v. Wawanesa Mutual Insurance Company, 2023 CanLII 8179 (ON LAT). It is important to note that I am not bound by other Tribunal decisions. In Elbahja the insurer did not pursue its own independent medical examination. This case differs from Elbahja because the insurer has pursued section 44 reports to be considered in addition to the family doctor’s CNRs.

21Dr. Jazayeri’s report notes the applicant’s anxiety and depressive symptoms are related to the accident, and the applicant meets the criteria for a DSM-5 adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder due to the accident.

22I place less weight on Dr. Jazayeri’s section 25 report because it is not corroborated by accident-related symptom reporting to the family doctor. Specifically, after the applicant reported the accident to her family doctor on December 2, 2022, almost a month after the accident, I am not directed to any CNR entries where she reported psychological symptoms to her family doctor. Rather, there is no mention of accident-related psychological complaints at her subsequent visits.

23The respondent submits the applicant lacks evidence showing her mental health was specifically exacerbated by the accident. The respondent relies on the section 44 physician assessment report dated June 19, 2023, prepared by Dr. Sabrina Ming-Wai Tu, and Dr. Mandel’s section 44 reports.

24The section 44 report prepared by Dr. Tu notes the applicant suffered minor uncomplicated soft tissue injury, specifically a lumbar strain, that is treatable within the MIG limit. The section 44 report prepared by Dr. Mandel notes “there is a lack of consistent objective information … that supports a DSM-5 diagnosis … or that she suffers clinically significant symptoms that would indicate a substantial psychological impairment or disability as a direct result” of the accident.

25In my view, the CNRs do not note psychological impairment or injuries that are accident-related. This lack of notes in the family doctor’s CNRs is consistent with the report prepared by Dr. Mandel.

26I find on a balance of probabilities that the applicant has not met her burden to establish that she has a psychological impairment that would warrant removal from the MIG.

Are the treatment plans reasonable and necessary?

27Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.

ORDER

29The applicant is subject to the MIG.

30As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

31As there are no overdue benefits, the applicant is not entitled to interest.

32The application is dismissed.