Citation: Salih v. Aviva General Insurance Company, 2022 ONLAT 20-005383/AABS

Licence Appeal Tribunal File Number: 20-005383/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Mohammed Salih

Applicant

and

Aviva General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Yalda Aslamzada, Counsel

For the Respondent:

Jessica Bacopulos, Counsel

HEARD:

By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on January 20, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016)¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are to be determined by the Tribunal:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from May 18, 2018, to January 20, 2020?

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

PRELIMINARY ISSUE – APPLICABILITY OF THE MINOR INJURY GUIDELINE

3In his written submissions, the applicant addressed the issue of the applicability of the Minor Injury Guideline (“MIG”).

4The respondent objected to this issue being considered as the Case Conference Report and Order² did not list this as an issue in dispute.

5The respondent argued that the issue of the applicability of the MIG was addressed at the Case Conference and withdrawn by the applicant, and as a result, was not listed as an issue in dispute.

6The applicant failed to address these arguments in his submissions and provided no reasoning for unilaterally adding this issue in dispute.

7After considering the submissions of the parties, and reviewing the Case Conference Report and Order, I agree with the respondent’s arguments. The MIG issue was not identified as an issue in dispute in the Case Conference Report and Order. Afterwards, it was open to the applicant to bring a motion to add the MIG issue prior to this hearing at which time the respondent could make submissions and the Tribunal could decide whether to add it or not. As the issue of the applicability of the MIG is not properly before the Tribunal, it would be improper to address it in this hearing, and I will not consider it.

LAW

8Section 3(7) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

9Section 12(1)1 of the Schedule states that the insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of, and within one hundred and four weeks after the accident and does not qualify for an income replacement benefit (an ‘IRB’).

10Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

11In Heath v. Economical Mutual Insurance Company³, the Court of Appeal determined the test for a non-earner benefit was if an applicant has, within 104 weeks of the accident, sustained an impairment which results in a “complete inability to engage in substantially all of his pre-accident activities.” This determination is made by comparing the applicant’s pre-accident activities to his post-accident activities, with the applicant bearing the onus of showing that these changes caused the applicant to be continuously prevented from engaging in substantially all his pre-accident activities. With regard to “continuously prevents”, the applicant must show that as a result of the accident, he “suffers from a disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”

NON-Earner benefit of $185.00 per week from may 18, 2018, to january 20, 2020

12The applicant argued that as a result the injuries suffered during his accident, he is entitled to a non-earner benefit (“NEB”).

13The applicant relied on the disability certificate⁴ (“OCF-3”) of Dr. Melissa Boodhram, chiropractor, where Dr. Boodhram noted that the applicant suffered a complete inability to carry on a normal life. Dr. Boodhram noted that the applicant suffered from pain while completing his activities of daily living (“ADL”s) his sleep, when bending, twisting and sitting for longer periods of time.

14Dr. Boodhram opined that the applicant suffered from an injury of his muscle and tendon in his neck, thorax, abdomen, lower back, pelvis and with headaches as a result of the accident. Dr. Boodhram also estimated that the applicant’s disability would last 9-12 weeks.

15The applicant also relied on an OCF-3⁵, this time completed by Dr. Gail Wright, chiropractor, which noted that the applicant suffered a substantial inability to perform his housekeeping and home maintenance tasks. Dr. Wright opines that the applicant suffers from chronic pain, cervical and lumbar radiculopathy, concussion, mixed anxiety and depressive disorder, contusion of the wrist and hand, thoracic spine pain and sleep disorder.

16Dr. Wright estimated that that the applicant’s disability would last more than 12 weeks because of chronic pain and cervical and lumbar radiculopathy.

17Dr. Wright recommended that the applicant obtain magnetic resonance imaging (an “MRI”) of his cervical and lumbar spine. I was not presented with evidence to show that said MRI of the applicant has been taken.

18The applicant also relied on the clinical notes and records of his family doctor, Dr. Rawieh El-Sayegh. The applicant visited Dr. El-Sayegh complaining of neck pain and sleep issues approximately two years after his accident⁶; Dr. El-Sayegh provided the applicant with prescriptions for Naproxen and Baclofen, and recommended that the applicant obtain an X-ray of his cervical spine⁷; this x-ray was not submitted into evidence

19The applicant received another prescription for more Naproxen approximately a week later⁸.

20The applicant then received another prescription, this time for Diclofenac and Baclofen for the applicant’s pain management.

21The applicant also submitted that Dr. Ikram Ghani, internist, provided the applicant with a prescription for more Diclofenac and Baclofen medications for his pain management⁹.

22The applicant submitted that at his next visit with Dr. El-Sayegh¹⁰, the applicant reported still dealing with neck and lower back pain and stated the Naproxen was not helping with his pain. Based on this, the applicant submitted that Dr. El-Sayegh provided the applicant with a prescription for Toradol and recommended he obtain an x-ray of his lumbar spine; this x-ray was not provided to the Tribunal.

23The applicant then was prescribed Ketorolac and more Baclofen for his severe pain¹¹.

24The applicant also relied on the Psychological Assessment Report¹² of Dr. Maneet Bhatia, psychologist. In the report, Dr. Bhatia diagnosed the applicant with the following psychological diagnoses: adjustment disorder with mixed anxiety and depressed mood, specific phobia – situational type – automobile anxiety, and somatic symptom disorder – moderate – persist with predominant pain.

25The applicant reported to Dr. Bhatia feeling depressed and lacking in motivation and was unable to perform his ADLs such as housekeeping, helping with the groceries, driving his siblings and mother, cooking, swimming, walking, playing soccer, going to work, going to mosque and volunteering with friends. The applicant also stated that before his accident, his life was very active and social.

26Based on his findings, Dr. Bhatia recommended that the applicant attend 16 sessions of cognitive behavioral therapy (“CBT”) with the goal of reducing the applicant’s depression and anxiety symptoms, improve his sleep, work on pain management techniques and restore the applicant to a pre-accident level of psychological function. The applicant did not provide any evidence that he followed Dr. Bhatia’s recommendation to attend CBT.

27The applicant submitted that based on the totality of the evidence he presented, he has shown that he suffers a complete inability pursuant to section 12(1) of the Schedule.

28The respondent disagreed that the applicant has met his evidentiary onus of showing that he suffers a complete inability as a result of the accident.

29The respondent also argued that the applicant had not provided sufficient evidence that any injuries or impairments he suffered were caused by the subject accident (meaning the January 20, 2018 accident currently before the Tribunal), and not a subsequent accident on March 20, 2019.

30The respondent submitted that the OCF-3¹³ of Dr. Wright was completed in relation to the subsequent accident and not the subject accident. The respondent also argued that Dr. Wright’s OCF-3 noted that the applicant was working in framing at the time of his subsequent accident and found that the applicant did not suffer a complete inability to carry on a normal life.

31With regard to the applicant’s prescription evidence¹⁴, the respondent argued that it should be given little weight, as these medications were prescribed in 2020 as a result of the applicant’s subsequent accident. Based on this, the respondent argued that the applicant had not shown that his pain complaints and prescriptions were related to the subject accident.

32The respondent also argued that little weight should be placed on the applicant’s Psychological Assessment Report¹⁵ for several reasons. First, the respondent argued that this Report was not provided in advance of the written hearing, and was exchanged with the applicant’s submissions¹⁶, contrary to the Case Conference Report and Order’s deadlines¹⁷. Second, the respondent submitted that this Report was authored with respect to the applicant’s subsequent accident, and more than 104 weeks after the applicant’s subject accident, i.e., outside the eligibility period for the NEB requested in the subject matter. Lastly, the respondent also argued that the Psychological Assessment Report failed to comment on the NEB’s test or address if the applicant’s psychological impairments resulted in a complete inability as a result of the subject accident.

33The respondent also argued that the applicant did not provide evidence of having psychological complaints to his assessors after the subject accident and before the subsequent accident.

34The respondent also relied on its Multidisciplinary Assessment Report IE¹⁸, which comprised of a General Practitioner Assessment¹⁹ completed by Dr. L. Todd Walters, general practitioner, and an Occupational Therapy – In-Home Assessment completed by Robert Campos²⁰, occupational therapist.

35Mr. Campos noted that the applicant reported being independent with his ADLs including housekeeping, self-care, driving, and socializing, though he did acknowledge some of the applicant’s social and pleasure activities were less frequent than before the applicant’s accident. The applicant did report difficulty with self-care due to back and neck pain and a lack of motivation. The applicant also reported receiving assistance from his mother, sister and brother with housekeeping due to headaches, neck and back pain and a lack of motivation.

36Mr. Campos also observed that the applicant had sufficient mobility, range of motion and strength as well as cognitive and psychosocial function to resume his ADLs while using techniques for energy concentration, task modification and safe body mechanics.

37Dr. Walters also assessed the applicant and diagnosed him with a whiplash associated disorder 2 (“WAD-II”) strain and lumbosacral strain. Based on his assessment, Dr. Walters opined that the applicant did not suffer a complete inability to carry on a normal life as a direct result of the subject accident. Dr. Walters acknowledged that the applicant had a minor, residual impairment as a result of his spine pain but said pain did not interfere with the applicant’s ADLs with any restrictions.

38The respondent submitted that the applicant’s evidence and arguments fail to meet the test in Heath. First, that the applicant had failed to show that he suffered in an impairment within 104 weeks of the subject accident that resulted in a complete inability to engage in substantially all of his pre-accident ADLs based.

39In particular, the respondent submitted that the applicant has provided little to no evidence regarding his pre-accident activities and how the applicant’s disability or incapacity has continuously prevented the applicant from engaging in his ADLs and that said disability or incapacity’s nature, extent or degree and is uninterrupted.

40The respondent also argued that the applicant had not provided sufficient evidence that any injuries or impairments he suffered were caused by the subject accident and not the subsequent accident.

41After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the applicant has not met his evidentiary onus of showing that he is entitled to an NEB.

42I agreed with the respondent’s concerns about the applicant’s OCF-3, namely that Dr. Wright’s was in relation to the applicant’s subsequent accident. As the applicant did not address this in his written submissions, I was more persuaded by the respondent’s position. The applicant also failed to address the fact that Dr. Wright noted that the applicant was working in framing at the time of his subsequent accident and found that the applicant did not suffer a complete inability to carry on a normal life.

43Moreover, I was not presented with any evidence to explain why Dr. Boodhram’s OCF-3 estimated that the applicant’s disability would last 9-12 weeks and not beyond 12 weeks, as submitted by the applicant.

44With regards to the evidence of Dr. El-Sayegh, though this evidence did show that the applicant had complaints of neck pain and sleep issues, this evidence did not create a nexus between the applicant’s pain complaints two years-post accident and his subject accident. Instead, I was more convinced that this pain was related to the applicant’s subsequent accident. Moreover, Dr. El-Sayegh’s evidence did not comment on the applicant’s pre and post accident ADLs or his complete inability.

45I echo these comments with relation to the applicant’s prescription evidence.

46Further, although Dr. Bhatia’s Psychological Assessment Report was authored after the applicant’s subsequent accident, Dr. Bhatia did not comment on if the applicant’s psychological injuries were caused by the subject or the subsequent accident. I found this silence to be an important basis to put less weight on this evidence.

47I also found Dr. Bhatia’s Report less than persuasive in showing that the applicant suffered a complete inability as a result of the subject accident, as Dr. Bhatia’s evidence did not provide evidence comparing the applicant’s pre and post accident activities.

48I also agreed with the respondent’s argument that Dr. Bhatia’s Report was authored more than 104 weeks after the applicant’s subject accident, meaning outside the eligibility period for the NEB requested in the subject matter, and as a result, put less weight on Dr. Bhatia’s Report.

49Instead, I preferred the evidence of Dr. Walters and Mr. Campos, which was obtained within 104 weeks of the applicant’s accident and was produced prior to the applicant’s subsequent accident.

50I agreed that the applicant failed to provide the Tribunal with a comparison of the applicant’s activities before and after the accident, examined over a reasonable amount of time, pursuant to Heath²¹ and section 3(7) of the Schedule. This is required to compare the applicant’s pre-accident life activities to those post-accident.

51Therefore, the reasons stated above, the applicant is not entitled to the NEB.

Interest

52As I have determined that no benefits are outstanding, no interest shall be awarded.

conclusion and ORDER

53The applicant is not entitled to the non-earner benefit.

54The applicant is not entitled to interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Dated November 11, 2020.
3. 3Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.
4. 4OCF-3 of Dr. Boodhram dated January 23, 2018.
5. 5OCF-3 of Dr. Wright dated October 12, 2019.
6. 6Based on the clinical notes and records of Dr. El-Sayegh of February 8, 2020.
7. 7Ibid.
8. 8Based on the applicant’s Prescription receipt dated February 14, 2020.
9. 9Based on a photo of the applicant’s prescription receipt for Diclofenac sodium with misoprostol, dated February 26, 2020.
10. 10Based on the clinical notes and records of Dr. El-Sayegh of April 11, 2020.
11. 11Based on a letter from Mohamed Elsabakhawi Drug Ltd. #0076, dated April 12, 2020, explaining how to use Ketorlac and receipts for purchases of both Mar-Ketorlac and Apo-Baclofen, from the same pharmacy, also dated April 12, 2020.
12. 12Psychological Assessment Report of Dr. Bhatia dated April 30, 2021.
13. 13OCF-3 of Dr. Wright dated October 12, 2019.
14. 14Meaning the Naproxen and Diclofenac and Misoprostol prescriptions.
15. 15Psychological Assessment Report of Dr. Bhatia dated April 30, 2021.
16. 16On May 17,2021.
17. 17Which set the production exchange deadline of December 31, 2020.
18. 18Issued on May 11, 2018.
19. 19Who assessed the applicant on May 3, 2018.
20. 20Who assessed the applicant on April 26, 2018.
21. 21Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.