Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2017 ONFSCDRS 279

FSCO A15-008364

BETWEEN:

MUHIADIN HUSSEIN

Applicant

and

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Insurer

Before:

Arbitrator Paulina Gueller

Heard:

In person at ADR Chambers on September 5, 6, October 2, 3, 4 and 6, 2017, and written closing submissions completed on October 19, 2017

Appearances:

Mr. Muhiadin Hussein Mr. Essam Elbassiouni, legal representative for the Applicant Mr. Mike Klein, on behalf of the Insurer Mr. Darrell March, legal counsel for the Insurer

Issues:

The Applicant, Mr. Muhiadin Hussein (“Mr. Hussein”), was injured in a motor vehicle accident on September 6, 2014, and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Hussein, through his representative, 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. Hussein entitled to receive medical benefits for:

$2,080.41 for services set out in an unidentified treatment plan dated March 22, 2015;
$3,785.90 for services set out in an unidentified treatment plan dated September 22, 2014;
$1,302.40 for services set out in an unidentified treatment plan dated January 21, 2015?

Is Mr. Hussein entitled to payments for the cost of examinations for two unidentified cost of examinations for psychological assessments in the following amounts:

$2,200.00;
$1,995.00?

Is Mr. Hussein entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

Mr. Hussein is not entitled to the medical benefits in dispute for this Arbitration.
Mr. Hussein is not entitled to the cost of examinations in dispute for this Arbitration.
Mr. Hussein is not entitled to interest, as no benefits are payable.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with an Arbitrator for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Motions at the commencement of the Hearing

At the outset of the Hearing, I issued an Order dated September 12, 2017, that states:

Motion to exclude the Applicant’s documents from the Hearing

The Insurer requested to exclude any documents the Applicant wanted to present as evidence at the Hearing, as they were not served at least 30 days before the Hearing.

The Applicant submitted that the Insurer knew of the documents as they were produced throughout the proceeding and some reports were served a week before the Hearing. He advised that he would file his Brief the second day of the Hearing. The Applicant also submitted that not allowing him to present evidence is against the consumer protection intention of the legislation.

After hearing the submissions from the parties, I considered that despite whether the documents

were known by the Insurer, it is fair for the opposing party to be able to properly prepare for the Hearing. In addition, the Applicant has not presented any exceptional circumstances as to why he did not comply with the law. Further, I find that the consumer protection legislation is applicable when there are understandable circumstances for an arbitrator to make an exception. However, in this particular case the Applicant cannot expect that consciously not complying with the law is an exceptional circumstance. For all those reasons, I ruled to exclude the Applicant’s documents.

BACKGROUND

The Applicant was driving his car, a 2005 Nissan Quest, into the underground garage of his residential building, when the garage door closed, hitting the windshield and roof of the car. He stopped for a moment and continued driving to his parking spot.²

The Applicant’s Testimony

The Applicant testified that his body did not touch any part of the vehicle and that he was in shock. He continued driving to his parking spot and walked to the management office, but it was closed.

The Applicant testified that before the motor vehicle accident (“MVA”) he had lower back, neck and hip pain, arthritis, and Human Leukocyte Antigen (“HLA-B27”). However, with the impact of the MVA, the pain increased and the lower back and hip pain radiated to the legs.

Prior to the MVA, the Applicant received treatment for massage, chiropractic and electric pads. However, he felt that that the treatment was not helping him. Dr. Hashi, his treating Chiropractor, recommended treatment with the decompression machine. The Applicant testified that the only treatment that made him feel better was receiving 10 sessions with the decompression machine. However, he discontinued the treatment because he could not continue paying.

In March 2014, Dr. Berih referred him to Dr. Krystyna Prutis, a Physiatrist. She requested a bone scan and an MRI and referred him to Dr. Woods, an Orthopedic Surgeon.

Dr. Woods reviewed the x-rays and MRI, increased the Applicant’s pain medication dosage and advised him there was nothing further he would be able to do for the Applicant.

The Applicant testified that after the MVA, he visited Dr. Berih, his former family physician. The doctor recommended physiotherapy and prescribed him medication for pain.

Dr. Abdullahi Berih

Dr. Abdullahi Berih was the Applicant’s family doctor from July 18, 2001 to October 5, 2015. He testified as a lay witness.

He testified that the Applicant has a history of chronic back pain, and HLA-B27. Dr. Berih’s clinical notes and records (“CNRs”) contained many documents mentioning the Applicant’s chronic condition, at least since 2009.³

After the MVA, Dr. Berih saw the Applicant on September 15, 2014 and referred him for physiotherapy. However, the first note in his CNRs regarding the MVA is on October 28, 2014.

Dr. Dahir Hashi

Dr. Hashi, a Chiropractor, treated the Applicant pre- and post-MVA.

The Insurer raised a motion submitting that Dr. Hashi should not be allowed to provide an opinion as he was as a lay witness and not an expert, and that he should only refer to the documents prepared by him.

The Applicant opposed the motion, submitting that Dr. Hashi is the Director of the HealthMax Physiotherapy Clinic (“HealthMax”), the facility where the Applicant received treatment, and therefore he was qualified to provide an opinion regarding the Applicant’s entire CNRs from HealthMax.

I decided that because he was permitted to testify as a lay witness, not as an expert, he could only provide testimony related to documents prepared by himself and from his observation when he directly treated the Applicant.

Dr. Hashi testified that prior to the MVA, he treated the Applicant from March to July 2014. The Applicant was referred by Dr. Berih for therapy for a back spasm. After some treatments, the Applicant felt better, but was discharged because he could not pay for treatment.

On September 22, 2014, Dr. Hashi prepared an OCF-23,⁴ in which under Part 6 he noted in regard to the injuries related to the MVA, that the Applicant underwent investigation and received treatment in the past, and that the investigation and treatments were included in the family doctor’s consultation, prescription medication, MRI of the neck and back and neurologist’s report.⁵

In Part 7 of the OCF-23, Dr. Hashi noted the barriers to recovery were: “Chronic pre-existing musculoskeletal/neurological conditions involving the cervical and lumbar spine. Disc pathology with associated radiculopathy. Housekeeping demands, Psychological factors as it relates to the accident. Care giving duties which aggravates his musculoskeletal injuries, chronic smoker”.⁶

Applicant’s Position

The Applicant submitted that after the MVA, he visited his family physician on September 15, 2014 regarding his low back pain, mood irritability and physical limitations.

On September 22, 2014, he attended HealthMax by recommendation of his family doctor and his initial evaluation revealed neck pain, severe low back pain with radiation to the left leg and irritable mood.

The Applicant submitted that four treatments plans related to physical rehabilitation and psychological evaluation were submitted to the Insurer. However, the Insurer denied the treatments plans stating that the Applicant’s injuries fell under the Minor Injury Guideline (“MIG”) and that the treatment plans were not reasonable and necessary. Also, it is the Applicant’s submission that the Insurer responded to the OCF-18s outside of the 10 business day limitation period as noted within Section 38 of the Schedule.

The Applicant submitted that Director’s Delegate Evans stated in Scarlett and Belair Insurance⁷ that “the legal onus always remains on an insured as the claimant always has the burden of proving that he or she fits within the scope of coverage”.

The Applicant submits that according to his family doctors, treatment facility, and all his treating physicians, Dr. Prutis and his chronic pain physician at the Rothbart Centre for Pain Care were consistent that his injuries were not treatable under the MIG and that he is therefore entitled to treatment beyond the limits of the MIG.

Insurer’s Position

The Insurer submitted that the Applicant entered his parking garage following another car when the garage door had opened. The Applicant did not use his own remote fob and as a result, the garage door came down onto his windshield and roof, but the airbags did not deploy.

The Applicant visited his family doctor on September 9, 15, 23, 29 and October 14, 2014 without mentioning the MVA. The Applicant mentioned the MVA on October 28, 2014.

The Insurer also stated that the Applicant submitted an application for Accidents Benefits (OCF-1) on October 6, 2014. Therefore, the treatment plan prepared on September 23, 2014 was prepared before the Applicant submitted an OCF-1 to the Insurer.

The Insurer submitted that the pre-accident records from different physicians note:

a) Dr. Berih noted that the Applicant complained of difficulty with sleeping, fatigue, difficulty holding a cup, pain in the neck, shoulders and back;

b) Dr. Putris, in a report dated April 4, 2014, noted that the Applicant was suffering from chronic discogenic neck pain, and low back pain;

c) The Magnetic Resonance Imaging (MRI) Report of the Cervical Spine dated April 27, 2014 was normal;

d) The MRI Report of the spine dated May 8, 2014 noted degenerative disc disease at the L5-S1 level with a small left paracentral disc protrusion;

e) The Emergency Triage Record from William Osler Hospital, dated August 31, 2014 noted hip pain radiating down to right leg for three weeks;

f) An MRI report of the Left Hip dated September 2, 2014 noted mild degenerative changes with the left hip.

Dr. Yong Kyong Ko, Physiatrist, prepared an Insurer’s Examination Report dated March 28, 2015, concluding that “Today’s examination did not reveal any evidence of an ongoing pathology that could explain the pain in the lower back and I will note that there was no objective evidence of an ongoing impairment that is directly attributable to the subject motor vehicle accident”.⁸

The Psychiatrist Examination Report of Dr. Velan Sivasubramaniana, dated May 13, 2015 stated: “From a psychiatric perspective, Mr. Hussein is not suffering from a disorder or impairment directly attributable to the index motor vehicle accident.”⁹

The Insurer submitted that the Applicant’s impairments are prior to the MVA. Further, a pre-existing condition does not automatically exclude the Applicant from the MIG. It may only apply in exceptional circumstances where there is compelling evidence that the Applicant will be unable to achieve maximal recovery under the MIG. However, the Applicant failed to deliver an Arbitration Brief and has presented no evidence from an expert supporting that the treatment plans in dispute are reasonable or necessary, or that his alleged accident-related impairment falls outside the MIG.

Law

Section 3 (1) of the Schedule states:

“accident” means an incident in which the use or operation of an automobile directly causes an impairment …;

… “impairment” means a loss or abnormality of a psychological, physiological or anatomical structure or function;

… “minor injury” means 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;

… “sprain” means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear;

“strain” means an injury to one or more muscles, including a partial but not a complete tear;

“subluxation” means a partial but not a complete dislocation of a joint;

“whiplash associated disorder” means a whiplash injury that,

(a) does not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and

(b) does not exhibit a fracture in or dislocation of the spine;

“whiplash injury” means an injury that occurs to a person’s neck following a sudden acceleration-deceleration force.

Section 14 of the Schedule states:

Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:

Medical and rehabilitation benefits under sections 15 to 17.

Section 38 of the Schedule states:

(1) This section applies to,

(a) medical and rehabilitation benefits other than benefits payable in accordance with the Minor Injury Guideline; and

(b) all applications for approval of assessments or examinations.

… (3) A treatment and assessment plan must,

…(i) if the treatment and assessment plan is in respect of an accident that occurred on or after September 1, 2010,

(A) that the insured person’s impairment is not predominantly a minor injury, or

(B) that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline, or

(A) that the expenses contemplated by the treatment and assessment plan are reasonable and necessary for the insured person’s treatment or rehabilitation, and

(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

(9) If the insurer believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) must so advise the insured person.

(10) If the insurer has not agreed to pay for all goods, services, assessments and examinations described in the treatment and assessment plan or believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) may notify the insured person that the insurer requires the insured person to undergo an examination under section 44.

(11) If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

EVIDENCE AND ANALYSIS:

Medical Benefits

The Insurer raised the issue of causation, stating that the Applicant’s alleged impairments and/or injuries are prior to the MVA.

Therefore, I will first analyze whether the Applicant’s alleged impairments and/or injuries are directly related to the MVA.

The intake form from HealthMax, dated September 22, 2014, indicates that the Applicant’s body did not strike anything in the vehicle at the time of the impact and he was able to get out of the car unaided. He went home after the MVA, there was no bleeding, nor cuts and bruises sustained by the Applicant. He experienced shock and complained of pain in his neck, low back and radiculopathy.¹⁰

Dr. Hashi’s testimony was that on September 22, 2014, he prepared an OCF-23 stating that the Applicant sustained multiple musculoskeletal injuries which were accident-related.

Dr. Hashi also provided the following reasons as to why the Applicant should be out of the MIG:

Mr. Hussein has sustained multiple musculoskeletal injuries that will require significant amount of physical rehabilitation … the patient sustained accident related musculoskeletal impairments including limited range of motions, joint dysfunctions, neurological signs and symptoms at radiculopathy at C5-C6 and L5-S1 nerve root regions on the left, as well as psychological symptoms … In addition to the above impairments this patient has significant and extensive history of lumbar lumbar/cervical spine degenerative disc/joint disease ….¹¹ [sic]

I give little weight to Dr. Hashi’s evidence. He treated the Applicant for the same symptoms two months before the MVA and he discharged the Applicant because he could not afford payment. I find that his conclusions are based on the investigation and treatments from his family doctor’s consultation, prescription medication, MRI of the neck and back, and neurological findings, conducted prior to the MVA.

In addition, I find that Dr. Hashi, who is a Chiropractor, has no training or expertise to opine or assess about psychological matters.

Prior to the MVA, in March 2014, the Applicant visited Dr. Putris, Physiatrist. By letter dated April 4, 2014, Dr. Prutis stated that the Applicant walked with the help of a single point cane. Dr. Prutis stated the Applicant reported low back pain, which started in the lumbosacral area and radiated to the lower extremities. The pain was aggravated with prolonged sitting, standing, bending forward and ambulation. He reported numbness in the right lower extremity. He also reported that the neck pain radiated to the upper extremities and he had periodical numbness in the upper extremities. Dr. Putris requested an MRI and an Electromyography.¹²

Dr. Berih’s CNRs indicate the following notes:

a) “February 24, 2014: … 46 yr old Pt is having trouble sleeping and wakes up with pain ans fitness which gets better with use. Pt wants referral for Rheumatologist Ha myalgia, fatigue, difficulty even holding a cup, He was seen by Rheumatologist but is not happy with him and would like to go see Dr. Prutis a physiatrist.”¹³[sic]

b) March 25, 2014: “Back pain, aggravated by bending, lifting, carrying, pulling, pushing, unable to bend”;¹⁴

c) On August 8, 2014, the Applicant was seen by Dr. Lavaniya Sreetharan, medical doctor, who noted: “seeing pt in Dr Berih’s absence pain in left lower back, radiating to leg trouble getting out of bed once he walks around, pain is better this happens on and off for him, worst over past week … sometimes takes Tylenol and Naprosyn … had tried physiotherapy for a while; not doing any exercises at home” [sic];¹⁵

d) September 15, 2014: “5-S1 radiculopathy unable to bend sit, unable to sit stand Back pain with LHe is irritable … PLAN: Symptomatic treatment, physiotherapy and traction;¹⁶

e) September 22, 2014: “back pain, no relief, aggravated by bending, lifting, carrying, has back pain radiating to legs … Assessment: Sciatica”.¹⁷

On August 29, 2014, Dr. Berih wrote a letter to Kathy Carless, a support social worker, regarding a request to support the Applicant’s application to ODSP (Ontario Disability Support Program). He confirmed that the following conditions existed at least one year or more before August 26, 2014: Insomnia because of emotional and psychological problems, Polyarthralgia Pain in the joint, including the neck and shoulders.¹⁸

One week prior to the MVA, on August 30, 2014, the Applicant had an MRI because he was presenting “sudden onset of left hip pain”.¹⁹

Moreover, there are no references of the MVA in Dr. Berih’s CNRs dated September 15, 2015, nor in his referral for “Physiotherapy, traction treatment and home exercise” of the same date.

On October 22, 2014, Dr. Fernando Gonzalez, medical doctor from Rothbart Centre for Pain Care Ltd., prepared a consultation report stating that the Applicant complained of low back pain that radiates to his left lower limb and “The pain began three months ago after lifting his small child”.²⁰ However, there is no mention of the MVA in the report.

Dr. Wood, Orthopedic Surgeon, reported on January 15, 2015 that the Applicant had an x-ray, requested by Dr. Michael Wood, Orthopedic surgeon. The x-ray report notes: “FINDINGS: No significant abnormality identified”.²¹

Conclusion

On October 2, 2017, the Applicant testified he was under the effect of medical marihuana and recreational drugs. Therefore, I have decided that I will not take into consideration that portion of the testimony.

I accept the Applicant’s submissions that his chronic pain is prior to the MVA. However, a pre-existing condition is not compelling evidence by itself to prove that a person’s impairments shall be treated outside the MIG.

The impairment or injuries, whether they are minor or a pre-existing condition, must have a direct connection with the MVA and must be proven.

The Applicant went for physiotherapy and started a treatment with the decompression machine for the same complaints in April 2014 and stopped in July 2014, because he could not pay.

The Applicant’s complaints regarding the neck, shoulders and radiculopathy are verified by the CNRs of his treating doctors prior to the MVA.

Additionally, the Applicant did not file the alleged treatment plans (“OCF-18s”) at the Hearing. Therefore, there is insufficient information and evidence to support an Order regarding these medical benefits.

I find that there is no compelling evidence that the Applicant suffered any specific impairment or injury, as defined by section 3 of the Schedule, directly related to the MVA, or that his pre-existing condition was aggravated by the MVA.

The wording contained within section 14 of the Schedule sets out that the insurer is liable to pay medical and rehabilitation benefits on behalf of the insured person who sustains an impairment as a result of an accident (my emphasis).

I find that the Applicant failed to prove that he has suffered an impairment or injury directly related to the MVA, or that his pre-existing condition was exacerbated by the MVA.

On a balance of probabilities, I am persuaded that the Applicant’s alleged impairments are not related to the MVA. Therefore, he has no entitlement for the requested medical treatments under the Schedule.

Cost of Examinations

The issues at the Hearing included two costs of examinations. However, the Applicant did not file the alleged OCF-18s.

I find that there is insufficient information and evidence to support an Order for the two psychological assessments. Therefore, I find that the Applicant is not entitled to the two costs of the examinations in the amount of $2,200.00 and $1,995.00.

Interest

There is no entitlement to interest.

EXPENSES:

The Hearing was strongly contested by both legal representatives. They repetitively spoke over one another, interrupting one another during examination and cross-examination. They made preambles or statements rather than questions, more like submissions than examinations. It was difficult for the court reporter, the interpreter, the parties, the witnesses and myself.

The Hearing was also delayed because there were some difficulties finding a reliable Somali interpreter.

I will not be making a determination on expenses. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with an Arbitrator for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

October 27, 2017

Paulina Gueller Arbitrator