Adil Ahmed v. Unifund Assurance Company, 2017 ONFSCDRS 297

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

Neutral Citation: 2017 ONFSCDRS 297

FSCO A15-007869

BETWEEN:

ADIL AHMED

Applicant

and

UNIFUND ASSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Arbitrator Kimberly Parish

Heard:

In person at ADR Chambers on August 22 and 23, 2017

Appearances:

Mr. Adil Ahmed participated Mr. Vikram Bhandari for the Applicant Ms. Eleonora Persichilli for the Insurer

Issues:

The Applicant, Mr. Adil Ahmed (“Mr. Ahmed”), was injured in a motor vehicle accident (“MVA”) on December 13, 2014 and sought accident benefits from Unifund Assurance Company (“Unifund”), payable under the Schedule.¹ The parties were unable to resolve their disputes through mediation, and Mr. Ahmed, 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. Ahmed entitled to the cost of an examination in the amount of $2152.00 for a Worksite Assessment, dated February 23, 2015, by Assess Medical?
Are Mr. Ahmed’s injuries considered to be within the Minor Injury Guideline?
Is Mr. Ahmed entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?

Result:

Mr. Ahmed is not entitled to the cost of an examination in the amount of $2152.00 for a Worksite Assessment, dated February 23, 2015, by Assess Medical.
Mr. Ahmed’s injuries are within the Minor Injury Guideline.
Mr. Ahmed 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 within 30 days of the date of the Order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

Preliminary Motions Raised at Beginning of Hearing:

There were two preliminary motions dealt with on the first day along with the Applicant’s testimony. The first motion was raised by the Applicant’s counsel, Mr. Bhandari that the cost of the examination in dispute should be for a Functional Abilities Evaluation and not a Worksite Assessment. Mr. Bhandari requested that a letter dated August 21, 2017, authored by Dr. Justin Guy, be admitted at the Hearing. The letter noted that the cost of the examination in dispute should be for a Functional Abilities Evaluation and not a Worksite Assessment. The Insurer’s counsel, Ms. Persichilli, objected to the letter being admitted as the Insurer was never previously advised that the cost of the examination was not for a Worksite Assessment which was denied by Unifund. I made a ruling that the August 21, 2017 letter from Dr. Justin Guy would not be admitted at the Hearing as Rule 39.1 of the Dispute Resolution Practice Code (“DRPC”) had not been complied with. That Rule requires that all documents, reports and assessments to be introduced at a Hearing be served on the other party at least 30 days before the first day of the Hearing. Further, I made a ruling that the cost of the examination in dispute was for a Worksite Assessment and was mediated as such.

Ms. Persichilli, then raised a second motion that the clinical notes and records (“CNRs”) from Warden Wood Health Centre (“Warden Wood”) from August 21, 2015 to July 22, 2017 not be admitted into the Hearing as they were served upon the Insurer 29 days prior to the Hearing and this does not comply with Rule 39.1 of the DRPC. Mr. Bhandari requested these CNRs be admitted into the Hearing as per Rule 39.2 of the DRPC as there were extraordinary circumstances for the delay. Mr. Bhandari stated the CNRs were requested from Warden Wood on June 5, 2017 and a cheque in the amount of $50.00 was provided as payment. On June 8, 2017, Warden Wood advised Mr. Bhandari through Impact Law that outstanding payment for other Impact Law clients was required prior to the release of Mr. Ahmed’s CNRs. Warden Wood cashed the $50.00 cheque for Mr. Ahmed’s CNRs on July 16, 2017 and the Applicant himself requested his CNRs directly from Warden Wood. On July 24, 2017, upon receipt of the records from Warden Wood, Mr. Ahmed e-mailed the CNRs to Mr. Bhandari that afternoon. On July 25, 2017 the CNRs were faxed to the Insurer’s counsel. The date of July 24, 2017 represented the 30-day mark prior to the Hearing.

I allowed the CNRs of Warden Wood to be admitted. Warden Wood accepted payment for Mr. Ahmed’s records by cashing the cheque but then did not release his records to his legal counsel. Instead, the clinic demanded that payment be received for other Impact Law clients first. I find that this constituted extraordinary circumstances which led to a delay in the Applicant filing these records pursuant to Rule 39.1 of the DRPC. The prejudice to the Applicant by not allowing these records to be admitted would outweigh any prejudice to the Insurer as these CNRs spanned from August 21, 2015 to July 22, 2017. I relied on Rules 39.2 and 81.1 of the DRPC. I further ruled that the Applicant could only rely on the documents which were admitted at the Hearing and not any other medical documentation which was not contained within the CNRs served upon the Insurer on July 25, 2017.

EVIDENCE AND ANALYSIS:

Background

On December 13, 2014 Mr. Ahmed was involved in a MVA while driving in Markham, ON. Mr. Ahmed was the driver of the vehicle and his elderly mother was in the front passenger seat. He made a left turn into the parking lot of a plaza and was driving straight when another vehicle T-boned his vehicle between the passenger front and rear door.

It is Mr. Ahmed’s position that the impact this T-bone collision has had on his life has not been minor. As a result of the MVA, Mr. Ahmed sustained impairments to his right knee, neck, lower back, and the trapezius muscles between his shoulders. Due to the right knee pain, Mr. Ahmed has over-compensated with his left knee and has developed a meniscal tear and Hoffa’s disease in his left knee for which he now requires surgery. Mr. Ahmed’s position is that he now suffers from chronic pain in both of his knees, his neck, and trapezius area. Mr. Ahmed stated the MVA has had a psychological impact on him as he has experienced anxiety when driving in a vehicle, fatigue, headaches, weight-gain, a strained relationship with his spouse, and a reduced ability to be active with his children.

Unifund stated that Mr. Ahmed suffered soft tissue injuries and a contusion to his right knee as a result of this MVA. This was diagnosed by Dr. Nancy Abram, a General Practitioner, as part of an Insurer’s examination (“IE”) done on August 21, 2015² to assess if Mr. Ahmed’s injuries fell within the Minor Injury Guideline (“MIG”). It is Unifund’s position that Mr. Ahmed lacks the medical evidence to support that his injuries take him out of the MIG. Unifund stated there has been no causal link that the problems Mr. Ahmed has developed in his left knee are related to the injuries he sustained with his right knee in the MVA.

Unifund stated the cost of the examination for a Worksite Assessment has not been incurred and Mr. Ahmed only missed one day of work due to the MVA. There has never been a claim for income replacement benefits and therefore the cost of the examination is not reasonable and necessary.

Testimony of Mr. Ahmed

Mr. Ahmed stated at the time of the accident, his mother was recovering from recent surgery. An ambulance was called to the scene and his mother was placed on a backboard and transported to hospital by ambulance. Mr. Ahmed stated his right knee hit the console. He accompanied his mother to the hospital but was not seen for any injuries on that day. A day or so following the MVA, he stated he was sore and took a day off work to see his family doctor. The CNR dated December 15, 2014 from Mr. Ahmed’s family doctor, Dr. Feng,³ noted Mr. Ahmed reported he was in an MVA and reported low back pain, right shoulder pain, and right knee pain. Dr. Feng referred Mr. Ahmed to physiotherapy on January 2, 2015.⁴ Mr. Ahmed testified he attended Markham Health Network for physiotherapy from January 16, 2015 to July 24, 2015. Mr. Ahmed stated he stopped attending treatment as he found it difficult to accommodate with his schedule; which included the birth of his second child at the end of June 2015 and his commute to work in downtown Toronto. In October 2016 Mr. Ahmed changed jobs and started working for an employer in Newmarket as it was closer to his home and he did not have to spend as much time commuting.

Mr. Ahmed stated he had difficulty bearing weight on his right knee following the MVA which was exacerbated by standing on the subway during his commute to and from work. As Mr. Ahmed was required to stand at a work station, his employer at that time made accommodations for him by providing anti-fatigue mats and set-up a work station designed for standing. Mr. Ahmed had an x-ray and an ultrasound of his right knee done on April 11, 2015⁵ to address ongoing pain in his right knee. There were no significant abnormalities identified on either sets of imaging.

On March 3, 2016, Mr. Ahmed saw Dr. Feng and the CNR of that date⁶ noted left knee pain for three months and no recent trauma or injury. Mr. Ahmed stated there were no subsequent MVAs or trauma between the subject MVA and March 3, 2016. The entry from Dr. Feng’s records dated March 19, 2016⁷ noted left knee pain and that Mr. Ahmed walked with a limp due to his knee pain. On March 28, 2016, Mr. Ahmed saw Dr. Khan for his left knee pain and Dr. Khan prescribed an anti-inflammatory.⁸ It was further noted within Dr. Feng’s records dated April 11, 2016⁹ that an MRI done on April 4, 2016 on Mr. Ahmed’s left knee showed a small meniscal tear and Hoffa’s disease. A referral was made by Dr. Feng for Mr. Ahmed to see an Orthopedic Surgeon, Dr. Gallimore. It was also noted that Mr. Ahmed received a cortisone injection in his left knee from a Rheumatologist, Dr. Wan, on March 30, 2016. An entry dated January 30, 2017 in Dr. Feng’s records¹⁰ noted Mr. Ahmed reported pain in his right knee on and off for two years but nothing abnormal was noted on physical examination. Mr. Ahmed declined pain medication and requested imaging for his right knee. Mr. Ahmed was referred for another x-ray on his right knee. No results from this x-ray were produced for the Hearing.

Mr. Ahmed underwent a psychological pre-screen consultation on June 22, 2016 with Ida Radan which was supervised by Mehdi Lotfalizadeh, Clinical Psychologist. A Psychological Consultation Report following the pre-screen was issued June 29, 2016.¹¹ It was noted that Mr. Ahmed self-reported that since the MVA he has experienced irritability, frustration, low motivation, difficulty focusing, and frequent worry. It was further noted this impacted his sleep quality and he experienced anxiety when traveling in a motor vehicle. The report also noted Mr. Ahmed had gained 60-70 pounds since the accident due to inactivity. The last page of the report noted: “this patient should NOT fall under the minor injury guidelines (MIG) category.”¹² [Emphasis Ida Radan & Mehdi Lotfalizadeh.]

The CNR of Dr. Feng dated August 17, 2016¹³ noted that Dr. Gallimore recommended surgery for the left knee in May 2016 but Mr. Ahmed did not want to proceed with the surgery as he wanted to try conservative measures first. This CNR noted that Mr. Ahmed was taking prescription anti-inflammatory medication. Mr. Ahmed testified that he wanted to try weight-loss first prior to surgery. Mr. Ahmed stated the medications he has been taking to manage his pain are no longer working and he needs to be functional to assist with caring for his three children. Mr. Ahmed stated he has surgery scheduled for September 8, 2017 to repair the meniscal tear in his left knee.

Mr. Ahmed testified that since the MVA he has not been able to help his wife with duties around the household and with activities involving their children due to pain in his bilateral knees, trapezius area, and his back. He stated a care provider was hired to assist with their three children. Mr. Ahmed has also stated that he has not been able to assist his elderly parents as he did prior to the MVA.

On cross-examination, Ms. Persichilli put to Mr. Ahmed that he had missed one day of work since the MVA and that he had not been placed on any modified duties. Mr. Ahmed agreed with this. Ms. Persichilli asked Mr. Ahmed if he had received an income replacement benefit or a non-earner benefit since the MVA. Mr. Ahmed stated he had not. Ms. Persichilli put to Mr. Ahmed that when he started working for his now current employer in October 2016, no ergonomic accommodations were provided for him and he worked the same number of hours in a week as at his prior job. Mr. Ahmed agreed with both statements. Ms. Persichilli put to Mr. Ahmed that he did not see Dr. Feng between April 2015 and March 2016 for any complaints relating to pain. Mr. Ahmed agreed with this statement. Mr. Ahmed stated after he stopped attending physiotherapy treatment in July 2015, he continued taking over-the-counter Tylenol for pain management and has taken prescription anti-inflammatories. Ms. Persichilli put to Mr. Ahmed that there were no references within Dr. Feng’s CNRs referencing any pain due to walking prior to the entry dated March 19, 2016. Mr. Ahmed stated that he would not always take the time to visit his family doctor if it meant he had to take time away from his children. Ms. Persichilli put to Mr. Ahmed that since March 2016 his primary complaint when he visited Dr. Feng was with his left knee. Mr. Ahmed agreed. Ms. Persichilli put to Mr. Ahmed that he underwent a Functional Abilities Evaluation with Dr. Justin Guy on May 20, 2015 and a report dated May 24, 2015 was issued. Dr. Guy recommended that Mr. Ahmed see a chronic pain specialist to evaluate the extent of his soft tissue and musculoskeletal injuries to provide a prognosis and facilitate recovery.¹⁴ Ms. Persichilli asked Mr. Ahmed if he had seen a chronic pain specialist since the MVA. Mr. Ahmed stated he had not. Ms. Persichilli further put to Mr. Ahmed that there were three occasions in the year following the MVA that Mr. Ahmed mentioned right knee pain to Dr. Feng and then 15 months later, left knee pain was reported to Dr. Feng. Mr. Ahmed confirmed this to be correct. Ms. Persichilli asked Mr. Ahmed why he stopped taking the prescription anti-inflammatories. Mr. Ahmed stated he stopped taking them due to the side effects and the long-term effect these drugs have on the liver. Mr. Ahmed also stated he did not want to be on medication when interacting with his children. Ms. Persichilli put to Mr. Ahmed that he did not report any sleep related issues from the accident to Dr. Feng and Dr. Feng’s CNRs noted information relating to sleep apnea in May 2017.¹⁵ Mr. Ahmed stated in response that both sleep issues and issues with ongoing pain were reported to Dr. Feng.

Testimony of Dr. Nancy Abram for the Insurer

Prior to Dr. Nancy Abram (“Dr. Abram”) testifying, Mr. Bhandari raised a motion to have her excluded from testifying as an expert witness. Mr. Bhandari stated Dr. Abram was not a practicing physician at the time she conducted the assessment on Mr. Ahmed. Therefore she should not be allowed to provide testimony as an expert witness in family medicine. No case law on this was provided by Mr. Bhandari.

Ms. Persichilli opposed the motion and stated that Dr. Abram should be qualified as an expert witness in family medicine and provided a copy of her Curriculum Vitae.¹⁶ Ms. Persichilli stated Dr. Abram was providing a medical opinion and did not need to be a practicing physician to provide a medical opinion. The parties agreed to have Dr. Abram speak to her qualifications and credentials and I would determine whether she qualified to testify as an expert witness. Dr. Abram stated she obtained her Doctor of Chiropractic in 1980 and had been a Medical Doctor since 1990. She had performed over 1500 medical assessments to date. She stated she was an expert on musculoskeletal impairments. Dr. Abram stated she last treated patients as a family physician in October 2011 but is still currently licensed with the College of Physicians and Surgeons of Ontario. She further stated that since 2011, she spends 50% of her time conducting insurer’s examinations (“IEs”) and 50% of her time working as a General Practitioner Psychotherapist.

I determined that Dr. Abram qualified as an expert witness in family medicine and could testify as such.

Dr. Abram testified that she performed a General Practitioner assessment through Evolve Assessments and Diagnostics (“Evolve”) on behalf of Unifund on August 21, 2015 to assess if Mr. Ahmed’s injuries fell within the MIG and an assessment report dated September 4, 2015 was issued.¹⁷ Dr. Abram stated she reviewed all of the documentation sent to her prior to conducting the assessment and spent approximately 50 minutes assessing Mr. Ahmed. Dr. Abram stated she did not have any reports available prior to the assessment regarding Mr. Ahmed’s knees. Dr. Abram conducted a physical examination of Mr. Ahmed and diagnosed him with having a right knee contusion with evidence of patellofemoral syndrome, bilateral trapezius strain, and lumbar strain.¹⁸

On cross-examination, Mr. Bhandari asked Dr. Abram if she was currently registered as a Doctor of Chiropractic Medicine (D.C.) and she stated she was not. Mr. Bhandari asked Dr. Abram how long it had been since she had done plaintiff assessments. Dr. Abram stated since 2011, she had only done assessments for insurers. Dr. Abram stated she performs assessments upon request from companies such as Evolve, and does not take requests directly from insurers. Mr. Bhandari asked Dr. Abram if she had ever appeared before the Financial Services Commission of Ontario as an expert and she stated she had not. Mr. Bhandari asked Dr. Abram if she requested additional medical information from Evolve or Unifund for Mr. Ahmed. Dr. Abram stated she did not and that she reviewed the documentation listed under the document review section of her assessment report. Mr. Bhandari asked Dr. Abram if she only assessed the areas Mr. Ahmed complained about. Dr. Abram stated yes. Dr. Abram stated she did not perform an examination on Mr. Ahmed’s left knee as that was not an area of complaint by Mr. Ahmed. Further, she did not assess him again after August 2015. Mr. Bhandari asked Dr. Abram if she ever reassesses claimants and issues an addendum. Dr. Abram stated she does this on a case by case basis and that she would be willing to change her medical opinion if she received new medical information warranting her to change her medical opinion.

In a final re-direct, Ms. Persichilli asked Dr. Abram if at the time she assessed Mr. Ahmed, his injuries fell within the MIG. Dr. Abram stated yes. Ms. Persichilli asked Dr. Abram if the questions contained within her assessment report were provided to her by Evolve and she stated yes.

Closing Submissions of Mr. Ahmed

Mr. Ahmed testified that he has ongoing bilateral knee pain, trapezius pain, and low back pain. It is Mr. Ahmed’s position that as a result of the increased weight-bearing on his left knee, this has led to overcompensation with his right knee. This in effect has caused the meniscal tear and Hoffa’s disease in his left knee. Mr. Ahmed experiences anxiety and frustration with not being able to assist his wife at home as he did prior to the MVA and experiences difficulty with sleep.

The CNRs of Markham Health Network noted consistent reporting of right knee and back pain. The Functional Abilities Evaluation by Dr. Justin Guy noted Mr. Ahmed had functional impairments and provided objective testing. The Psychological Consultation Report of Ida Radan noted Mr. Ahmed suffered driver-related anxiety and sleep problems, which was consistent with Mr. Ahmed’s testimony. The Insurer relies on Dr. Abram’s report and Dr. Abram never examined Mr. Ahmed’s left knee. Mr. Ahmed has developed chronic pain since the MVA and there is evidence of both physical and psychological factors that should remove him from the MIG.

Mr. Ahmed relied on several cases in support of his claim that his injuries did not fall within the MIG as outlined below:

Jayeshkumar Patel and TD General Insurance Company¹⁹ in which Mr. Patel submitted that compelling medical evidence supporting chronic low back pain and anxiety had developed four years following the accident which warranted his removal from the MIG.

Jessica Silva Arruda and Western Assurance²⁰ concluded that Ms. Arruda’s injuries had not resolved in 20 months since the accident, and Ms. Arruda was diagnosed with chronic pain, and this led to the Arbitrator removing her from the MIG.

Ruqia Rahim Ali and Bakidar Ferozuddin and Certas Direct Insurance Company²¹ noted that chronic pain cannot be addressed within the MIG and a diagnosis of chronic pain is not clinically associated sequelae to the MIG.

Maverick Sleep and Aviva Canada Inc.²² wherein the Arbitrator found that Mr. Sleep’s testimony was straight-forward and credible and was consistent with the objective medical evidence provided. The Arbitrator concluded that Mr. Sleep’s ongoing sharp back pain did not constitute a minor injury.

Sonia Pinhasov and Guarantee Company of North America²³ was referenced as a case on point. Arbitrator Seife addressed that the applicant was a credible witness who suffered a disability which was supported by ample medical evidence. The Arbitrator found that as a result of Ms. Pinhasov’s impairments following the accident, she was unable to perform many of the household duties and incurred expenses to have someone else perform them. The ample medical evidence provided led to her receiving entitlement to an income replacement benefit.

Mr. Bhandari submitted that the treatment plan for a Worksite Assessment was incurred under the title of a Functional Abilities Evaluation and it is deemed incurred under s. 3.8 of the Schedule. Unifund has improperly denied and withheld this benefit. Mr. Bhandari submitted that the Worksite Assessment contained physical, functional, and ergonomic assessment components which were necessary to facilitate a safe return to work for Mr. Ahmed and therefore the cost of examination was reasonable and necessary.

Closing Submissions of Unifund

Ms. Persichilli stated that there is a lack of objective medical evidence presented by Mr. Ahmed to support removing him from the MIG and that the cost of the examination in dispute for a Worksite Assessment was not reasonable and necessary. Ms. Persichilli stated the Worksite Assessment was denied on the basis of the Application for Accident Benefits (OCF-1) and Mr. Ahmed’s injuries did not prevent him from returning to work. In addition, Mr. Ahmed did not apply for an income replacement benefit. Ms. Persichilli further stated that Dr. Justin Guy was not asked to testify why the OCF-18 listed a Worksite Assessment and not a Functional Abilities Evaluation and Ms. Persichilli asked me to disregard that a Functional Abilities Evaluation is the same as a Worksite Assessment.

Ms. Persichilli stated Mr. Ahmed has relied on his own evidence and testimony to support that his injuries fall outside of the MIG. Ms. Persichilli relied on Julia Lo-Pappa and Certas Direct Insurance Company²⁴ where the Arbitrator stated that the burden of proof rests on the applicant to satisfy that the injuries sustained were not predominantly a minor injury. Ms. Persichilli submitted Mr. Ahmed has provided no medical evidence that he has suffered an accident-related injury not contemplated by the MIG. The x-ray of Mr. Ahmed’s right knee in April 2015 yielded normal results. Ms. Persichilli stated that Mr. Ahmed suffered only contusions and sprains as a result of the MVA.

Ms. Persichilli stated that little weight should be given to the Psychological Consultation Report dated June 29, 2016. The report does not note if it was done in person, or by telephone. The report does not note how long it took to complete, or whether a questionnaire was filled out. There is no reference made within the report of any testing that was done and there was no diagnosis provided within the report. The report did recommend further testing and a full psychological assessment. Ms. Persichilli lastly stated that this report noted that information was obtained through Mr. Ahmed’s self-reporting.

Ms. Persichilli stated the opinions contained within Dr. Abram’s September 4, 2015 assessment report were consistent with the medical documentation she had reviewed prior to assessing Mr. Ahmed’s injuries and whether his injuries fell outside of the MIG. Further, Dr. Feng’s CNRs, which were provided to Dr. Abram, did not contain any information different from what Mr. Ahmed conveyed at the time of this assessment.

It was stated by Ms. Persichilli that Mr. Ahmed developed pain in his left knee one year following the MVA with an unknown cause regarding its onset. The pain complaints in Dr. Feng’s CNRs referenced a meniscal tear. There has been no causal connection established through the CNRs which link the MVA to the left knee pain. Ms. Persichilli relied on the Licence Appeal Tribunal decision of 16-002397 K.L. and Aviva Insurance Company of Canada²⁵ in which the Adjudicator found that the applicant had not met the onus of proof to establish a causal connection that the compression fracture sustained two years following the accident was related to the accident. The case of Basson and Royal & SunAlliance Insurance Company of Canada²⁶ was also referred to by Ms. Persichilli. This case found that chronic pain did not take the applicant out of the MIG as the applicant’s credibility was poor and he did not meet the burden of proof that his ongoing pain was caused by the accident.

Ms. Persichilli stated that Mr. Ahmed has made the inference that he suffers from chronic pain but no chronic pain diagnosis has ever been made. There have been no MRI results or x-ray results produced to enable the Insurer to re-assess Mr. Ahmed being held within the MIG. Ms. Persichilli stated that Dr. Feng was to testify as a witness but the Insurer was advised the day before that he would not be attending. Ms. Persichilli stated that the Orthopedic Surgeon, Dr. Gallimore, who recommended Mr. Ahmed undergo left knee surgery had not been produced as a witness, nor have his CNRs been produced for this Hearing. There has been nothing noted in any of the CNRs provided which indicate that the overcompensation of Mr. Ahmed’s right knee has caused the current impairments with his left knee. Ms. Persichilli requested I draw an adverse inference regarding Dr. Feng and Dr. Gallimore’s non-attendance as witnesses. Ms. Persichilli referenced McKoy and Unica²⁷ in which the Arbitrator described an adverse inference may be drawn when a witness that could potentially provide evidence which would assist a party is not produced at the Hearing.

Ms. Persichilli lastly submitted that Mr. Ahmed has failed to meet the evidentiary burden of proof for all claims in dispute. The lack of medical evidence makes it impossible for the Insurer to re-visit the determination which it has already made. The Insurer cannot rely on the Applicant’s testimony provided to change that determination.

ANALYSIS:

Is Mr. Ahmed entitled to the cost of an examination in the amount of $2152.00 for a worksite assessment, dated February 23, 2015, by Assess Medical?

I find Mr. Ahmed is not entitled to the cost of the examination for a Worksite Assessment in the amount of $2152.00, dated February 23, 2015, by Assess Medical. Mr. Ahmed testified that he missed one day of work following the MVA to visit his family doctor to address the injuries he sustained as a result of the MVA. Mr. Ahmed testified that following the MVA his right knee pain was exacerbated from standing on the subway on his downtown commute to work. He further testified that his employer had provided accommodations by providing an anti-fatigue mat and modifying his workstation. There has been no claim made by Mr. Ahmed for either an income replacement benefit, or a non-earner benefit. There has been no evidence which suggested that Mr. Ahmed’s injuries have impacted his ability to perform his duties at work. I do not find this treatment plan is reasonable and necessary. The onus is on Mr. Ahmed to prove that this treatment plan was reasonable and necessary and I find he has failed to do so. I further find that this treatment plan was properly denied by Unifund by way of an Explanation of Benefits (OCF-9) dated March 27, 2015.²⁸

Are Mr. Ahmed’s injuries considered to be within the Minor Injury Guideline?

Mr. Ahmed sustained soft tissue injuries to his right knee, neck, back, and the trapezius muscles between his shoulders immediately following the MVA. He attended physiotherapy for treatment from January 2015 to July 2015. The March 3, 2016 CNR of Dr. Feng noted left knee pain for three months and that there had been no recent trauma/injury.²⁹ This note was made 15 months following the MVA. Dr. Feng’s CNR of April 11, 2016 noted that an MRI done on April 4, 2016 showed a small meniscal tear in the left knee and Hoffa’s disease. Mr. Ahmed testified that the pain in both of his knees, the trapezius area, and his lower back have become chronic since the MVA, and there have been no subsequent MVAs or trauma which occurred between the MVA and March 2016.

I note that Dr. Feng’s CNRs contain no entries which reference any musculoskeletal pain complaints for the period from August 2015 to March 2016, when pain in the left knee was first noted. There has been no diagnosis made by any medical practitioner that Mr. Ahmed suffers from chronic pain.

Mr. Ahmed provided testimony in a straight-forward manner and I found him to be credible. Since the MRI on the left knee was done, Mr. Ahmed has received a cortisone injection in his left knee from Dr. Wan, a Rheumatologist. Mr. Ahmed has been referred to and has seen Dr. Gallimore, and Dr. Mansuk (clinical note of Dr. Feng does not note what type of doctor).³⁰ Other than the CNRs of Dr. Feng, there have been no CNRs produced from any of the specialists seen by Mr. Ahmed who have been referenced through Dr. Feng’s CNRs. In addition to this, none of these doctors have been produced as witnesses to testify regarding Mr. Ahmed’s ongoing symptoms of pain and specifically to provide an opinion regarding the cause of Mr. Ahmed’s left knee impairment.

I afford little weight to the Functional Abilities Evaluation report by Dr. Justin Guy, Chiropractor, dated May 24, 2015.³¹ At the time of the issuance of this report, Mr. Ahmed had not seen any specialists relating to his impairments from the MVA, and there were no complaints reported by Mr. Ahmed regarding his left knee. The Client Initial Intake form noted within Dr. Guy’s Functional Abilities Evaluation report³² notes pain in the following areas: neck, shoulder, lower back, right knee. It also notes chronic pain, fatigue, fear of driving, anxiety, sleep problems, and psychological ailments. Dr. Guy recommended consultation with a chronic pain specialist as Mr. Ahmed continued to report symptoms “well beyond the expected natural history of most post-accident soft-tissue injuries.”³³ He also recommended Mr. Ahmed consult with an Orthopedic Surgeon and also a psychological specialist for an assessment and treatment for his reported psychological issues. Dr. Guy’s assessment was done five months following the accident; Mr. Ahmed was still receiving physiotherapy at that time. Any issues regarding fatigue or issues with sleep in Dr. Feng’s records do not note any correlation with the MVA. There are also no notes of any anxiety being reported by Mr. Ahmed in Dr. Feng’s CNRs provided.

I do not afford any weight to the psychological consultation report dated June 29, 2016 issued by Ida Radan, and supervised by Mehdi Lotfalizadeh, Clinical Psychologist, following the Psychological Pre-Screen done with Mr. Ahmed on June 22, 2016. This was not a full psychological assessment and the information obtained from this pre-screen relied on self-reporting from Mr. Ahmed. There was no diagnostic testing, or a diagnosis yielded.

The testimony provided by Dr. Abram was consistent with what had been noted in her General Practitioner Assessment Report, dated September 4, 2015. I am persuaded by the conclusion reached within her report which finds that the impairments Mr. Ahmed sustained as a result of the MVA are within the MIG. Her conclusion was supported by the physical examination she performed on Mr. Ahmed in conjunction with the documentation she reviewed for the assessment.

Mr. Ahmed relied on the decisions of Patel and Arruda in which a diagnosis of chronic pain by a medical practitioner was sufficient to remove the applicants in those cases from the MIG. Mr. Ahmed further relied on the Sleep decision which noted that Mr. Sleep’s combined credible testimony with a chronic pain diagnosis warranted removing Mr. Sleep from the MIG. The case of Pinhasov was also relied on by Mr. Ahmed. The Arbitrator in that case found Ms. Pinhasov to be credible and noted “ample medical evidence” had been provided to warrant entitlement to an income replacement benefit.³⁴ In all of the above noted cases, there was objective medical evidence and a diagnosis of chronic pain. In the case before me, there has been no medical professional who has diagnosed Mr. Ahmed with chronic pain. I agree with the findings in the decision of Lo-Pappa that “the onus of proof is on the Applicant to establish that the injury falls outside of the Minor Injury Guideline (and therefore not subject to the Minor Injury Guideline Cap of $3,500).”³⁵ In Mr. Ahmed’s case, his evidence largely relied upon his own testimony and lacks objective medical evidence. Mr. Ahmed has provided testimony which supports that his left knee impairments are a predominant source of his current pain. Mr. Ahmed has not provided any objective medical evidence which causally links what is occurring with his left knee to the injuries he sustained with his right knee from the MVA, or to the MVA itself. Mr. Ahmed has provided a theory that the meniscal tear in his left knee and Hoffa’s disease have been caused by overcompensation from his right knee. He has not led with any medical evidence which supports this. As noted within K.L., there was no medical opinion to state that the compression fracture the applicant sustained two years following the accident was related to the accident. Further, the clinical notes and records for K.L.’s family doctor did not establish the accident contributed to the fracture.³⁶ I find this decision to be on point with Mr. Ahmed’s case as there has been no direct causal link established between Mr. Ahmed’s left knee and the injuries he sustained from the MVA.

Sections 18(1) and (2) of the Schedule state:

(1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline. O. Reg. 34/10, s. 18 (1).

(2) Despite subsection (1), the $3,500 limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that 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. O. Reg. 34/10, s. 18 (2); O. Reg. 347/13, s. 1.

I find Mr. Ahmed sustained predominantly soft tissue injuries as a result of the MVA of December 13, 2014. I find Mr. Ahmed has not sufficiently met the burden of proof to discharge him from the MIG and is subject to the $3,500.00 limit under the MIG.

Is Mr. Ahmed entitled to interest for the overdue payment of benefits?

Mr. Ahmed is not entitled to interest as no benefits are payable.

EXPENSES:

The parties made no submissions regarding 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 within 30 days of the date of the Order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.

November 13, 2017

Kimberly Parish Arbitrator

Date