Tribunal File Number: 16-001592/AABS
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
M. N. K. A.
Applicant
and
State Farm Mutual Automobile Insurance
Respondent
DECISION
ADJUDICATOR: J.H. Bass
APPEARANCES:
For the Applicant: Ahmadreza Bazyar, Paralegal
For the Respondent: Rosalind Eastmond, Counsel
HEARD: Written Hearing: December 19, 2016
REASONS FOR DECISION AND ORDER
This is an Application by the Applicant to the Licence Appeal Tribunal (the “Tribunal”) with respect to the resolution of disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.
OVERVIEW
The Applicant was injured in an automobile accident on August 7, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).
The Applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
The parties participated in settlement discussions at a case conference but were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
Is the Applicant entitled to receive a non-earner benefit (“NEB”) in the amount of $185.00 per week for the period of February 7, 2015 and to date?
Is the Applicant entitled to receive a medical benefit in the amount of $1,998.80 for chiropractic services, recommended by Diamond Rehab and Wellness Centre denied by the Respondent on December 23, 2015?
Is the Applicant entitled to payments for the cost of examination in the amount of $1,850.00 for chronic pain assessment by Dr. Steve Blitzer in a treatment plan dated February 24, 2016, denied by the Respondent on March 30, 2016?
Is the Applicant entitled to interest on any overdue payment of benefits?
DECISION
- For the reasons set out below, I do not find on the balance of probabilities that the applicant is entitled to non-earner benefits, and I do not find the two treatment and assessment plans reasonable or necessary. Accordingly, I have not considered the issue of interest.
BACKGROUND
The Applicant was born in 1958 and immigrated to Canada in 2004. He was involved in a motor vehicle accident on August 7, 2014: he was driving out of a shopping centre parking area when he struck another vehicle. The airbags did not deploy and the applicant hit his chest on the steering wheel. Emergency services did not attend and a tow truck service arranged for a rental vehicle which he drove home.
He visited his family doctor, as a result X-rays were taken and pain killers prescribed. He then started to attend the Diamond Clinic for chiropractic, massage and exercises.
The applicant had a history of previous health problems, with acute back pain starting in 2006. Then, on June 27, 2011, he was injured in a work place accident, lifting a weight. He received disability benefits from the Workplace Safety & Insurance Board for about 11 months after the injury. At the time of the motor vehicle accident, and continuing to the present, the applicant has been receiving benefits under the Ontario Disability Support Program.
In addition, the applicant is on methadone treatment for a prior opioid addiction.
ISSUE NUMBER 1: NON EARNER BENEFITS
Regarding NEBs, the parties both made extensive submissions on a preliminary issue having to do with whether a particular fax was or was not sent to the respondent. In light of my decision on the merits I find it unnecessary to decide this issue.
The relevant provisions governing entitlement to a non-earner benefit are set out in section 12 of the Statutory Accident Benefits Schedule, as follows:
(1) The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if . . . :
The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.
Applicant’s Case
The applicant argues that he suffers a “complete inability to carry on a normal life” due to the motor vehicle accident, which caused increased pain in his lower back and legs and serious depression, requiring an increase to his methadone dosage.
To establish that the applicant “suffers a complete inability to carry on a normal life” as a result of the accident, the applicant relies on the following reports:
a. The OCF-3 of Dr Chan dated August 19, 2014: Dr Chan described the applicant as suffering from radiculopathy, sprain and strain of lumbar spine and intervertebral disc disorders. Dr Chan checked ‘Yes’ next to the box asking “Does the applicant suffer a complete inability to carry on a normal life?” However, he noted the anticipated duration of the disability as 9 to 12 weeks.
b. The Affidavit of Dr Steve Blitzer, dated November 10, 2016, and the attached report: Dr Blitzer states “his current problems are related to both pre-accident factors and the injuries he sustained in the subject loss. His prior injuries were exacerbated by the subject loss. . .” and “It is my opinion, on a balance of probabilities, that [the applicant] suffers from a complete inability to carry on a normal life”. Dr Blitzer’s view was that before the accident, the applicant might have been able to do some light work but that this is no longer possible, and his interaction with the community and quality of life have been affected.
- The respondent relies on the following medical reports:
a. In November 2011, Dr Farmad Pirouzmand reported that the applicant had acute low back pain and was using a cane to walk.
b. The report of Dr Kasra Pazuki dated January 10, 2012 - she describes seeing him for acute back pain many times from 2006 to 2012, and reported that the applicant had an MRI showing degenerative disc disease, that he used a cane and moved slowly. He was uncomfortable trying to sit and walk. She also reported his having been diagnosed with a major depressive episode.
c. The report of Dr Alireza Kachooie dated April 10, 2013, which describes the applicant as frequently bedridden with back pain, with functional limitations including walking, climbing stairs, lifting and bending.
d. In July 2014, a month before the motor vehicle accident, his family doctor Dr Majid Fanipour noted the applicant was requesting a disabled parking permit.
e. The Insurer’s Examination report of February 4, 2016 by Dr Sherali Esmail: Dr Esmail’s conclusions, based on examination of the applicant and review of the previous reports was “the claimant’s condition is primarily degenerative and complicated by a work-related accident in 2011 ... the insured’s condition was not caused by the [motor vehicle] accident ... and was pre-existing.”
The fact that the applicant had extensive pre-accident medical problems does not in itself disentitle him to NEBs – the test is whether he suffers “a complete inability to carry on a normal life” as a result of the motor vehicle accident.
Considering all the medical reports, I do not find convincing evidence that the applicant suffers an “inability to carry on a normal life” caused by the motor vehicle accident. There is extensive evidence of his severe back problems going back many years. In 2013 Dr Kachooie described him as frequently bedridden with back pain, with difficulty walking, climbing stairs, lifting and bending.
Dr Blitzer states in paragraph 9 of his affidavit that the applicant’s condition prior to the accident of August 7 2014 “may have allowed him to consider part-time and/or light work”, but there is conflicting and in fact confusing evidence as to the applicant’s work status. The applicant submits that he has been completely unable to work since the workplace accident of 2011, was in fact on ODSP at the time of the motor vehicle accident, and continues to receive these benefits.
However, there is contradictory evidence in the clinical notes and records provided by Dr Kourosh Zadhoush, whose clinic the applicant attended almost every week from August 2011 to June 2016, in connection with the methadone treatment he was receiving. Dr Zadhoush’s notes indicate that the applicant was employed from April 2012 to May 2014, mainly as a painter, and from January to May 2015. On March 13, 2015 Dr Zadhoush notes “He is a truck driver, new job requires him to go to US.”
The applicant submits that Dr Zadoush’s statements as to the applicant’s employment are in error and should be given no weight. To support his submission that he has not been employed since his workplace accident of 2011, the applicant submits
a. his affidavit, in which he states that the appointments with Dr Zadhoush last for only two or three minutes, with little or no conversation and are mainly for the purpose of providing a urine sample, and adds, “I have never worked as a truck driver or a construction worker; I cannot explain why Dr Zadhoush’s notes would suggest otherwise”.
b. Canada Revenue Agency Form T5007, a statement of benefits for 2015 showing that he was in receipt of ODSP benefits in 2015 - these are not in themselves proof that the applicant was not working, and
c. the clinical notes and records of the family doctor, Dr Pazuki, who notes in January 2012 “At this time he is not able to work” and discusses his back pain and depression.
I do not find this to be a convincing explanation as to why Dr Zadhoush’s notes indicate that the applicant was working after the motor vehicle accident. Dr Zadhoush notes this week after week in the reports on the applicant’s appointments in 2015, e.g. May 7, 14 and 28 and June 4 and 11. This casts doubt on not only whether the applicant was working but also on the applicant’s general credibility.
In his 2016 report Dr Blitzer comments that the applicant “had a good social life before the accident. After the accident, his social life has been reduced. ” I find this questionable given the evidence of Dr Kachooie that he was frequently bedridden with pain prior to the accident. Two doctors report that the applicant walked with a cane in 2011 and 2012, but Dr Blitzer comments in 2016 “he came into the clinic without a cane, though stated it was in his car.” Dr Blitzer concedes that the applicant’s “pre-accident back problems were significant.”
I prefer the evidence of Dr Esmail that “the claimant’s condition is primarily degenerative and complicated by a work-related accident in 2011 . . . the insured’s condition was not caused by the [motor vehicle] accident . . . and was pre-existing.”
Accordingly, I find that the applicant has not shown on the balance of probabilities that he suffers “a complete inability to carry on a normal life” as a result of the motor vehicle accident and is therefore not entitled to non-earner benefits.
Proposed Treatment & Assessment Plans
- The Applicant is seeking payment for two treatment and assessment plans:
a. The medical benefit in the amount of $1,998.80 for chiropractic services, recommended by Dr Chan of Diamond Rehab and Wellness Centre, denied by the Respondent on December 23, 2015, and
b. The cost of examination in the amount of $1,850.00 for chronic pain assessment by Dr. Steve Blitzer in a treatment plan dated February 24, 2016, denied by the Respondent on March 30, 2016.
The Chiropractic Services
With regard to chiropractic services, after the accident, the applicant received massage therapy, chiropractic and exercise, stretching, and heat therapy to a total of $11,054.08, until the respondent ceased funding the treatments in December 2014.
From the evidence, the applicant has had problems with back pain since at least 2006. However, to receive the benefits he has applied for the applicant needs to establish that his condition is caused or exacerbated by the motor vehicle accident. Dr Zadhoush’s clinical notes and records for August 7, 2014 state: “had car accident today, no pain or discomfort, no head injury. If has pain will go to ER” (at page 88). This evidence in not contradicted by the applicant’s submissions.
The respondent asked the applicant’s condition to be reviewed by Dr Michael Devlin, a physiatrist. In his report of February 4, 2016 Dr Devlin concluded that the applicants’ condition was not caused by the motor vehicle accident, and the proposed treatment would “not have any impact with respect to the healing of any soft tissue injuries that might have occurred as result of the August 7, 2014 motor vehicle collision”.
I do not find on the balance of probabilities that the chiropractic treatment is reasonable or necessary.
The Chronic Pain Assessment
The applicant has been diagnosed with chronic back pain for many years. However, there is a lack of medical evidence that his chronic pain is due to the motor vehicle accident. The applicant had been recommended to undergo treatment for chronic pain prior to the motor vehicle accident e.g. report of Dr Kasra Pazuki of January 10, 2012, report of Dr A. Kachooie of April 19, 2013,
I do not find on the balance of probabilities that the chronic pain assessment is reasonable or necessary.
The Other Issue in Dispute
- Given the above, I find it unnecessary to consider the issue of interest.
Released: January 24, 2017
J.H. Bass
Adjudicator