Ali Amiri v. State Farm Mutual Automobile Insurance Company, 2016 ONFSCDRS 211

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2016 ONFSCDRS 211

FSCO A13-002541, A13-013261 and A13-006638

BETWEEN:

ALI AMIRI

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Eban Bayefsky

Heard: April 25-27, 2016, at the offices of the Financial Services Commission of Ontario in Toronto.

Appearances: Mr. Amiri was self-represented Darrell March for State Farm Mutual Automobile Insurance Company

Issues:

The Applicant, Ali Amiri, was involved in motor vehicle accidents on December 21, 2010, October 15, 2011 and October 25, 2011. He applied for and received statutory accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ State Farm denied certain of Mr. Amiri’s claims. The parties were unable to resolve their disputes through mediation, and Mr. Amiri applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mr. Amiri entitled to income replacement benefits, from December 28, 2010, onward, as a result of the December 21, 2010 accident, pursuant to section 4 of the Schedule?
What is the quantum of income replacement benefits to which Mr. Amiri is entitled, pursuant to section 7 of the Schedule?
Is Mr. Amiri entitled to medical benefits for a treatment plan, from Dr. D. Ball, dated October 20, 2011, in the amount of $1,928.87, as a result of the December 21, 2010 accident, pursuant to section 14 of the Schedule?
Is Mr. Amiri entitled to medical benefits for the following treatment plans, as a result of the October 15, 2011 accident, pursuant to section 14 of the Schedule?

(i) March 2, 2012, from Physioflex, in the amount of $175.06

(ii) August 25, 2012, from Physioflex, in the amount of $1,330.99

Is Mr. Amiri entitled to medical benefits for a treatment plan, from Dr. S. Saggu, dated April 16, 2013, in the amount of $870.80, as a result of the October 25, 2011 accident, pursuant to section 14 of the Schedule?
Is Mr. Amiri entitled to interest for the overdue payment of benefits, pursuant to section 51 of the Schedule?
Is either party entitled to its expenses of the arbitration, pursuant to section 282(11) of the Insurance Act?

Result:

Mr. Amiri is not entitled to income replacement benefits as a result of the December 21, 2010 accident.
Given the first Order, it is not necessary to decide the issue of the quantum of income replacement benefits.
Mr. Amiri is not entitled to medical benefits for Dr. Ball’s October 20, 2011 treatment plan.
Mr. Amiri is not entitled to medical benefits for Physioflex’s March 2, 2012 or August 25, 2012 treatment plans.
Mr. Amiri is not entitled to medical benefits for a treatment plan, from Dr. Saggu, dated either April 6 or 16, 2013.
Mr. Amiri is not entitled to interest.
State Farm is entitled to its expenses of the arbitration, in the amount of $4,000.00.

EVIDENCE AND ANALYSIS:

Background – Mr. Amiri’s Accidents and Injuries

Mr. Amiri was involved in motor vehicle accidents on December 21, 2010, October 15, 2011 and October 25, 2011. In the first accident, a car backed up into Mr. Amiri’s car in a parking lot. Mr. Amiri testified that he hurt his neck in this accident, and that he attempted to return to work, but left after about an hour. In the second accident, Mr. Amiri was rear-ended while stopped at a red light. Mr. Amiri testified that this accident prevents him from sleeping, and has “set [his] life backwards.” In the third accident, Mr. Amiri was again rear-ended by another car while stopped at a red light.

Mr. Amiri testified that he was also in an accident on January 12, 2011, where he was rear-ended during a snow storm. At the hearing, Mr. Amiri described this accident as “terrible.” Mr. Amiri said that he injured his back as a result of this accident, and had to drop out of the academic degree programme he was in. Mr. Amiri also testified that he was working part-time “doing accounts receivable” and had opened a paralegal office, which he had to stop due to this accident. Mr. Amiri stated that this was his “most important accident.” Mr. Amiri testified that, before this accident, he was in school full-time and had just opened up a paralegal office.

Mr. Amiri stated that this accident “caused [him] a lot of stress and anxiety” and that “everything else is in the reports”, specifically those of Drs. L. Tugg and S. MacKenzie, both psychiatrists who assessed Mr. Amiri in relation to the January 2011 accident at the request of the Insurer.

Mr. Amiri said that his back problems were episodic, and were worse mainly in the winter time and at night while trying to sleep. For reasons delivered orally at the hearing, the January 12, 2011 accident and any benefits that might flow from it were not identified as issues for this arbitration.

On January 4, 2011, Dr. A. Virani, a chiropractor who Mr. Amiri began to see at Kidron Valley Rehab on the referral of his family doctor, Dr. A. Damji, submitted a Disability Certificate, indicating that, as a result of the December 2010 accident, Mr. Amiri had suffered a WAD II injury, and a thoracic and lumbar spine strain.

On November 20, 2013, Dr. S. Blitzer, a general practitioner who assessed Mr. Amiri at the request of the Insurer, reported Mr. Amiri as saying that he only injured his thoracic spine in the October 15, 2011 accident.

On January 7, 2012, Dr. D. Ball, a chiropractor who treated Mr. Amiri at Physioflex, submitted a Disability Certificate, indicating that, as a result of the October 25, 2011 accident, Mr. Amiri suffered a WAD III injury, a sprain and strain of his thoracic spine, a subluxation complex (vertebral) of his cervical, thoracic and lumbar spine, and chronic post-traumatic headaches.

Mr. Amiri sought income replacement benefits as a result of, and from a week after, the December 2010 accident. He also sought a treatment plan for chiropractic treatment from Dr. Ball as a result of this accident. Mr. Amiri sought two treatment plans for chiropractic treatment from Physioflex as a result of the October 15, 2010 accident. And he sought a treatment plan for chiropractic treatment from Dr. Saggu as a result of the October 25, 2010 accident.

1) Mr. Amiri’s Claim for Income Replacement Benefits

Pursuant to section 5 of the Schedule, an insurer is required to pay an income replacement benefit to an insured person who sustains an “impairment as a result of an accident”, was employed at the time of the accident, and as a result of and within 104 weeks of the accident, suffers a “substantial inability to perform the essential tasks of that employment.” Pursuant to section 6 of the Schedule, an insurer is not required to pay income replacement benefits beyond the 104-week mark, unless, as a result of the accident, the insured person suffers a “complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”

Mr. Amiri submitted that his conditions were “serious, not minor” and that the “evidence speaks for itself.” Mr. Amiri stated that the January 2011 accident “caused [him] a lot of stress and anxiety” and that “everything else is in the reports” of Drs. MacKenzie and Tugg. Mr. Amiri maintains that surveillance conducted by the Insurer “proves [he is] socially disengaged.”

In Dr. Virani’s January 2011 Disability Certificate, Mr. Amiri reported that he was working part-time in accounting/finance. In the Certificate, Dr. Virani reported that Mr. Amiri was not substantially unable to perform the essential tasks of his pre-accident employment. By an Explanation of Benefits (OCF-9), dated January 18, 2011, the Insurer denied Mr. Amiri income replacement benefits on the basis of Dr. Virani’s Disability Certificate.

On April 25, 2011, Dr. Blitzer reported that, based on Mr. Amiri’s own description of his problems, Mr. Amiri’s “injuries from the [December 2010] accident have recovered” and he did “not…[suffer] a substantial inability to perform the essential tasks of his employment as a Finance Assistant because of the injuries that he sustained in the December 21, 2010 accident.” By an OCF-9, dated April 27, 2011, the Insurer confirmed its denial of income replacement benefits on the basis of Dr. Blitzer’s report.

In his January 2012 Disability Certificate, Dr. Ball reported that, as a result of the October 25, 2011 accident, Mr. Amiri was substantially unable to perform the essential tasks of his pre-accident employment.

On May 22, 2013, Dr. MacKenzie reported that Mr. Amiri suffered from “generalized anxiety disorder, major depressive disorder, chronic, as well as a possible pain disorder associated with both psychological factors and a general medical condition, chronic.” Dr. MacKenzie reported that it was “most likely that [Mr. Amiri’s] previous anxiety [which affected him ‘little if any’] rendered him psychologically vulnerable to the effects of the accident and physical injuries” and that “[i]f not the cause, the accident was likely a significant contributing factor” (emphasis in original). Dr. MacKenzie reported that Mr. Amiri did not appear to be suffering from depression prior to the January 2011 accident, and that it was “possible that the accident was the stressor significant enough to activate depression in this young man.” Dr. MacKenzie also reported that Mr. Amiri had “not achieved maximum improvement relative to the mental health sequelae sustained” as a result of the January 2011 accident.

On January 21, 2016, Dr. Tugg reported that the noted accident “likely played a significant role in exacerbating his pre-existing anxious mood”, that he “currently suffers from a Major Depressive Disorder with anxious features” and that his prognosis is “guarded at best.”

I find that Mr. Amiri is not entitled to income replacement benefits as a result of the December 21, 2010 accident. Mr. Amiri testified for only a very brief time at the hearing, providing virtually no evidence on the nature and/or essential tasks of his pre-accident employment, the extent of the injuries he suffered in the December 2010 accident, and whether any injuries he sustained in that accident rendered him either substantially unable to perform the essential tasks of his previous employment or completely unable to engage in any reasonably suitable alternative employment. Mr. Amiri only introduced the reports of Drs. MacKenzie and Tugg, and did not call any witnesses, expert or otherwise.

However, assuming, without finding, that, as Dr. Virani reported, Mr. Amiri suffered whiplash injuries as a result of the December 2010 accident, I find that the evidence does not establish, on a balance of probabilities, that as a result of those injuries, Mr. Amiri suffered an impairment that rendered him unable to perform either his previous employment or reasonably suitable alternate employment. In particular, I am unable to determine the extent of Mr. Amiri’s inability to work, as I am unable to determine the essential tasks of his pre-accident employment, the extent to which any injuries he sustained prevented him from performing those tasks, and whether there might be any other suitable employment he could perform.

Only two of the assessors whose reports were in evidence commented on Mr. Amiri’s inability to work as a result of the December 2010 accident, namely, Dr. Virani and Dr. Blitzer, and both found that Mr. Amiri had not been rendered substantially unable to perform the essential tasks of his pre-accident employment as a result of the December 2010 accident. Dr. Ball found that Mr. Amiri could not return to his previous job, but as a result of the October 25, 2011 accident. While Drs. MacKenzie and Tugg reported that Mr. Amiri suffered psycho-emotional problems, these were as a result of the January 2011 accident, and neither assessor opined on Mr. Amiri’s ability to return to either his previous job or a suitable alternative. I note that Mr. Amiri, himself, suggested that the January 2011 accident, and not the December 2010 accident, was what precluded him from returning to any type of work.

Finally, while Mr. Amiri claimed that the surveillance conducted by the Insurer proved that he was “socially disengaged”, I do not find that this supports his claim that the December 2010 accident rendered him unable to do either his previous job or another job.

Mr. Amiri’s claim for income replacement benefits is denied.

2) The Quantum of Income Replacement Benefits

Given my finding that Mr. Amiri is not entitled to income replacement benefits, I do not find it necessary to decide the issue of the quantum of any benefits to which he might be entitled.

3) Mr. Amiri’s Claim for Dr. Ball’s Treatment Plan

Pursuant to sections 14 and 15 of the Schedule, an insurer is required to pay a medical benefit for all reasonable and necessary expenses for, among other things, chiropractic services, incurred as a result of an accident-related impairment. Pursuant to section 18(1) of the Schedule, an insurer is not required to pay more than $3,500 for any one accident for an impairment that is predominantly a minor injury, in accordance with the Minor Injury Guideline. Pursuant to section 18(2), the $3,500 limit does not apply if there is compelling medical evidence that the insured person has a pre-existing condition that will preclude their achieving maximal medical recovery if the $3,500 limit or Minor Injury Guideline applies.

Mr. Amiri submitted that his injuries were serious, fell outside the Minor Injury Guideline and that he should be entitled to the requested treatment plans.

In his October 20, 2011 treatment plan, Dr. Ball reported that, as a result of the December 2010 accident, Mr. Amiri suffered a sprain and strain, as well as a subluxation complex (vertebral), of his lumbar and thoracic spine, and recommended chiropractic treatment, physiotherapy and massage therapy.

On January 27, 2012, Dr. Blitzer reported that the injuries Mr. Amiri suffered in the December 2010 accident “would fit the Minor Injury Guideline” (“MIG”), and that “[b]ased on the history I have reviewed with the claimant, he did not [as reported by Dr. Ball] sustain lumbar or thoracic spine injuries with this referenced accident.” By an OCF-9 dated February 10, 2012, the Insurer denied Dr. Ball’s treatment plan, as it fell outside and exceeded the Minor Injury Guideline.

I find that Mr. Amiri is not entitled to Dr. Ball’s October 20, 2011 treatment plan. As indicated, Mr. Amiri provided virtually no evidence on the cause, nature and extent of his injuries. He testified that he injured his neck in the first accident. However, in the January 2011 Disability Certificate, Dr. Virani indicated that, as a result of the December 2010 accident, Mr. Amiri suffered a WAD II injury, and a thoracic and lumbar spine strain. In January 2012, Dr. Blitzer reported that, based on Mr. Amiri’s own statements, he did not sustain lumbar or thoracic spine injuries in the December 2010 accident. In April 2011, Dr. Blitzer reported that, based on Mr. Amiri’s own description of his problems, Mr. Amiri’s “injuries from the [December 2010] accident have recovered.” I find that, on a balance of probabilities, Mr. Amiri has not established what injuries he suffered in the December 2010 accident, or that, as a result of that accident (or any medical condition pre-dating that accident), he suffered an impairment requiring and/or entitling him to the treatment recommended by Dr. Ball in his October 2011 treatment plan.

4) Mr. Amiri’s Claim for Physioflex’s Treatment Plans

Mr. Amiri sought medical benefits for a treatment plan from Physioflex, dated March 2, 2012, in the amount of $175.06, in respect of the October 15, 2011 accident. However, the evidence before me does not contain such a treatment plan. The materials contain a treatment plan from Physioflex, dated March 24, 2012, in the amount of $1,275.06, in respect of which the Insurer issued an OCF-9, dated August 13, 2012, stating that the treatment plan had been partially approved for $1,100, as the “minor injury guidelines have been met.” The payment of $1,100 would leave a balance of $175.06, which is the amount of the treatment plan Mr. Amiri sought at the hearing, suggesting that he actually sought benefits for the balance of the March 24, 2012 treatment plan. However, a further discrepancy is that the March 24, 2012 treatment plan related to Mr. Amiri’s October 25, 2011 accident, not the October 15, 2011 accident. Mr. Amiri also did not testify as to his need for, or benefit from, chiropractic treatment in general. I, therefore, find that Mr. Amiri has not provided evidence substantiating his need for, or entitlement to, a treatment plan, dated March 2, 2012, in the amount of $175.06, in respect of the October 15, 2011 accident.

Mr. Amiri sought a treatment plan from Physioflex, dated August 25, 2012, in the amount of $1,330.99. However, the evidence before me also does not contain such a treatment plan. The closest item contained in the materials is a follow-up assessment report by Dr. Ball, dated August 25, 2012, but this is in no way a treatment plan.

The materials do contain an OCF-9, dated October 17, 2012, by which the Insurer denied an August 25, 2012 treatment plan from Physioflex. However, the OCF-9 is in relation to the October 25, 2011 accident. The OCF-9 refers to a report from Dr. N. Alikhan, a general physician who assessed Mr. Amiri at the request of the Insurer. On October 11, 2012, Dr. Alikhan reported that Mr. Amiri “sustained predominantly minor soft tissue injuries as a result of the October 25, 2011 motor vehicle accident” and that his “current examination did not reveal any reliable evidence of a substantial functional organic-based musculoskeletal or neurological impairment resulting from the diagnosed accident related injuries.” Dr. Alikhan reported that the assessment “revealed evidence of self-limiting pain behaviour, inconsistencies between formal examination and casual observation and several non-organic findings.” Dr. Alikhan concluded that there was no evidence that Mr. Amiri’s injuries fell outside the Minor Injury Guideline or that he suffered a “pre-existing medical condition that would prevent [him] from achieving maximal medical recovery within the Minor Injury Guideline.” Both the Insurer’s OCF-9 and Dr. Alikhan’s report refer to the reasonableness of the noted treatment plan in relation to the October 25, 2011 accident.

Again, Mr. Amiri did not testify as to the general reasonableness of chiropractic treatment in his rehabilitation.

I, therefore, find that Mr. Amiri has not provided evidence substantiating his need for, or entitlement to, a treatment plan, dated August 25, 2012, in the amount of $1,330.99, in respect of the October 15, 2011 accident.

5) Mr. Amiri’s Claim for Dr. Saggu’s Treatment Plan

Mr. Amiri sought medical benefits for a treatment plan, from Dr. S. Saggu, a chiropractor, dated April 16, 2013, in the amount of $870.88, for chiropractic treatment in respect of the October 25, 2011 accident. The evidence before me only contains a treatment plan with these particulars, dated April 6, 2013. Assuming, however, that the discrepancy in the dates was an inadvertent error, I nevertheless find that Mr. Amiri is not entitled to the requested treatment plan.

On the basis of a follow-up report from Dr. Alikhan, dated April 29, 2013, the Insurer issued an OCF-9, dated May 8, 2013, confirming that Mr. Amiri’s injuries in respect of the October 25, 2011 accident did not fall outside the Minor Injury Guideline.

In his final submissions, Mr. Amiri relied heavily on the reports of Drs. MacKenzie and Tugg. However, while Drs. MacKenzie and Tugg reported that Mr. Amiri suffered psycho-emotional problems, and while Dr. MacKenzie reported that Mr. Amiri’s “injuries fall outside of the Minor Injury Guideline”, these conclusions were in relation to Mr. Amiri’s “psychological injuries” from the January 2011 accident. Further, neither Dr. MacKenzie nor Dr. Tugg addressed the reasonableness or necessity of Dr. Saggu’s recommendations for chiropractic treatment outside of the Minor Injury Guideline as a result of the October 25, 2011 accident. As noted, Mr. Amiri did not testify as to his general need for chiropractic treatment.

Finally, I note that, on November 20, 2013, Dr. Blitzer reported that, contrary to a treatment plan dated September 23, 2013 from Dr. Saggu (which indicated that Mr. Amiri had suffered a sprain and strain of the thoracic and lumbar spine, a sprain and strain of the ribs and sternum, and segmental and somatic dysfunction), Mr. Amiri only suffered a thoracic back strain as a result of the October 25, 2011 accident, since he denied any problems in the lumbar spine and ribs and sternum. By an OCF-9, dated November 27, 2013, the Insurer denied Dr. Saggu’s September 2013 treatment plan as exceeding the Minor Injury Guideline, on the basis of Dr. Blitzer’s November 2013 report.

I, therefore, find that Mr. Amiri has not, on a balance of probabilities, established that, as a result of the October 25, 2011 accident, he required, or was otherwise entitled to, a treatment plan, from Dr. Saggu, dated either August 6 or 16, 2013.

6) Interest

Given that I have denied Mr. Amiri’s claims, I find that no interest is owing.

EXPENSES:

At the hearing, the parties addressed the issue of arbitration expenses in respect of both the initial hearing before Arbitrator Murray (who dealt with a preliminary issue of productions and then adjourned both the substantive hearing and the question of expenses to be heard by another Arbitrator) and the current proceeding. The Insurer sought $7,500 for both appearances, and Mr. Amiri sought the same.

Arbitrator Murray’s decision reviewed the facts surrounding the production of surveillance, adjourned the hearing, and issued the following order: “State Farm must comply with Rule 40 of the Code.” It is unclear from Arbitrator Murray’s order whether she found the Insurer to have been in breach of its production obligations and/or whether an adjournment was required before the matter could proceed. I am, therefore, not prepared to order either party to pay the other for its costs of the initial hearing before Arbitrator Murray.

Regarding the current proceeding, and in relation to Rule 75 of the Dispute Resolution Practice Code setting out the criteria for awarding expenses, Mr. Amiri has not succeeded on any of the issues, the parties did not indicate that any formal settlement offers had been exchanged, the proceeding did not raise any novel issues, and neither party’s conduct tended to prolong, hinder or obstruct the proceeding. While no aspect of the proceeding was improper, vexatious or unnecessary, I am concerned that Mr. Amiri only testified for a very brief time, only introduced two medical reports, and did not call any witnesses. Nevertheless, the hearing was relatively straightforward as a result, and was completed in approximately two and a half days.

In all of the circumstances, I find that the Insurer is entitled to its expenses of the arbitration, but not to the extent claimed. I find that a reasonable amount for expenses is $4,000.00.

August 5, 2016

Eban Bayefsky Arbitrator

Date