Citation: Ahmadi v. Certas Home and Auto Insurance Company, 2022 ONLAT 20-009445/AABS

Licence Appeal Tribunal File Number: 20-009445/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:

Arezo Ahmadi

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kimberly Parish

APPEARANCES:

For the Applicant:

Kenway Yu, Counsel

For the Respondent:

Nikhita Bhasin, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Arezo Ahmadi (“Ms. Ahmadi”) was involved in an automobile accident on July 16, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')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 issues to be decided in this hearing are as follows:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to a cost of examination expense in the amount of $2,825.00 for an accounting report completed by S&T Accounting submitted on July 31, 2020?

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

RESULT

3I find Ms. Ahmadi sustained predominately minor injuries as a result of the accident and that she is also not removed from the Minor Injury Guideline (“MIG”) as a result of chronic pain, any pre-existing psychological injuries, or post-accident psychological impairments. I find Ms. Ahmadi is not entitled to the cost of the accounting report in the amount of $2.825.00 as it is not reasonable and necessary.

ANALYSIS

Did Ms. Ahmad sustain a predominately minor injury?

The Minor Injury Guideline (“MIG”)

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

5Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

6It is Ms. Ahmadi’s onus to show that her injuries fall outside of the MIG.²

Soft tissue injuries

7Following the accident, Ms. Ahmadi first saw her family doctor, Dr. R. Lall on August 1, 2014 and reported pain in her neck and lower back. Dr. Lall noted aches/strains and her back is diffusely tender with no boney tenderness. Dr. Lall also notes her range of motion (ROM) is almost full.³

8I find this evidence supports that Ms. Ahmadi sustained soft tissue injuries, which on its own would mean that the injury she sustained is a “minor injury” as defined within s. 3 of the Schedule. It is Ms. Ahmadi’s position that she should be removed from the MIG because she suffers from chronic pain and has a pre-existing psychological condition which has been exacerbated by the accident. I find that Ms. Ahmadi has failed to prove on a balance of probabilities that she should be removed from the MIG because of chronic pain and/or any pre-existing condition.

Chronic pain

9I do not find on a balance of probabilities that Ms. Ahmadi suffers from chronic pain. Therefore, she is not removed from the MIG on this basis.

10Ms. Ahmadi submits she repeatedly consulted with Dr. Lall regarding her chronic pain. Ms. Ahmadi relies on the clinical note and record (“CNR”) of Dr. Lall dated January 23, 2015⁴ which notes her back pain has worsened and she suffers from insomnia. Dr. Lall prescribed medication for her insomnia. Ms. Ahmadi relies on a disability certificate (“OCF-3”) dated January 15, 2021⁵ and submits that her injuries, particularly her back pain impact her quality of life, and hinder her ability to perform childcare activities, household activities, personal grooming, and social activities. Ms. Ahmadi submits that she reported left side upper back pain to Dr. Lall on January 24, 2017.⁶

11The respondent argues that Ms. Ahmadi has not provided a diagnosis of chronic pain or evidence of any non-minor injuries causally connected to the accident. The respondent submits that her psychological injuries are unrelated to the accident. An x-ray of Ms. Ahmadi’s right elbow was completed on August 2, 2014 and revealed there is a joint effusion and no definite fracture or dislocation was found.⁷ Ms. Ahmadi has not produced any CNRs from her family doctor beyond January 24, 2017. The respondent further submits that there is a gap in treatment between 2015 and 2021. The respondent produced a treatment plan (“OCF-18”) dated January 23, 2015 from Progressive Rehab Clinic for multidisciplinary physical rehabilitation and an OCF-18 dated January 15, 2021 from Mackenzie Medical Rehabilitation Centre for massage therapy, acupuncture, and exercises.⁸ The respondent further submits that since August 23, 2015, Ms. Ahmadi continued working as a beauty advisor at a major department store but the OCF-3 dated January 15, 2021 notes that she stopped working there December 24, 2020 due to the lockdown during the Covid-19 pandemic.⁹

12I find Ms. Ahmadi has not established that she suffers from chronic pain. Upon review of Dr. Lall’s CNRs there are only three entries relating to accident related complaints of back pain.¹⁰ Ms. Ahmadi has not produced any CNRs from her family doctor since January 2017. The x-ray of her right elbow does not reveal a fracture or dislocation. Ms. Ahmadi has not produced evidence to support that she was referred for any further diagnostic imaging. Dr. Lall’s CNR dated January 23, 2015 notes no radiation/weakness, non-boney tenderness, full range of motion in her back, and that there was no medical indication for an x-ray. Other than muscle relaxant samples being provided by Dr. Lall August 1, 2014, there have not been medications prescribed for pain, nor any referrals to a chronic pain specialist.

13I am not persuaded that the OCF-3 dated January 15, 2021 supports that Ms. Ahmadi suffers from chronic pain. The OCF-3 was completed by Dr. C. Jakeer, chiropractor and notes strains/sprains to the cervical/thoracic/lumbar spine, sacroiliac joint, and pelvis. Dr. Jakeer further notes psychological impairments. I afford no weight to this OCF-3 in supporting that Ms. Ahmadi suffers from chronic pain for the following reasons. The OCF-3 was issued approximately 6.5 years following the accident. The physical impairments noted by Dr. Jakeer are strains/sprains which are soft tissue injuries. While Dr. Jakeer notes Ms. Ahmadi suffers from psychological impairments, I find providing a psychological perspective is outside of Dr. Jakeer’s scope as a chiropractor. Further the OCF-3 notes that Ms. Ahmadi stopped working December 24, 2020 due to the Covid-19 pandemic which I find is unrelated to the accident. I also find that as a result of Ms. Ahmadi continuing to work following the accident, this generally supports that she is not suffering from any functional impairments. Based on the above information, I do not find the applicant has established that the physical injuries noted on the OCF-3 are non-minor and that they are causally connected to the accident.

14For all of the reasons I have noted above, I find that Ms. Ahmadi has failed to prove on a balance of probabilities that she suffers from chronic pain and she is not removed from MIG on this basis.

Pre-existing psychological condition and post-accident psychological impairments

15I find Ms. Ahmadi has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of any pre-existing conditions. The applicant submits she has pre-existing psychological impairments which have been exacerbated by the accident. Ms. Ahmadi was prescribed anti-depressant medication on June 20, 2013.¹¹ In November 2014, Ms. Ahmadi was admitted to Rouge Valley Hospital for a Tylenol overdose and diagnosed with AXIS I: Depressive Disorder, not otherwise specified, and AXIS II: Query Obsessive traits. She was prescribed anti-depressant medication.¹² Ms. Ahmadi referenced the CNR entries of Dr. Lall in October 2016¹³ which note depressed mood, decreased sleep/energy and reduced appetite. Ms. Ahmadi relies on the Tribunal decision 17-002734 v. Tradition Mutual Insurance Company (“17-002734”)¹⁴ in which the adjudicator determined that an applicant’s family physician is qualified to make a diagnosis of a psychological injury, based on the Joint Statement on Access to Mental Health Care from the Canadian Medical Association and Canadian Psychiatric Association.

16The respondent argues that Ms. Ahmadi has not produced compelling evidence that she has a documented pre-existing condition preventing her from achieving maximal medical recovery within the MIG and none of her healthcare practitioners have made this determination. The respondent concedes that Ms. Ahmadi has a history of depression and an obsessive disorder but that her post-accident psychological complaints are not accident-related. The respondent relies on page 1 of the Rouge Valley Hospital report which notes Ms. Ahmadi is experiencing stress with her three children and is having difficulty coping. The report further notes she reported the death of a family member and a family friend who both died on the same date. The respondent submits that while Dr. Lall’s CNRs from 2014 - 2016 note complaints of decreased mood and stress, issues unrelated to the accident are noted and there is no mention of the accident in the entries relating to psychological complaints/impairment. Lastly, the respondent submits Ms. Ahmadi has $591.86 remaining available to her for treatment under the MIG.

17Pursuant to s. 18(2) of the Schedule, for the removal of an insured person from the MIG on the basis of a pre-existing condition, the pre-existing condition must be documented by a health professional prior to the accident and the pre-existing condition must preclude the insured person from achieving maximal medical recovery within the $3,500.00 MIG limit. Ms. Ahmadi argues that her pre-existing psychological diagnosis of depression in 2013 and the diagnosis in November 2014 of Depressive Disorder and Query Obsessive traits support that her psychological condition has been exacerbated by the accident and therefore she should be removed from the MIG. However, this is not the test which warrants removal from the MIG. I am not persuaded by Ms. Ahmadi’s reliance on 17-002734. I do not find it on point and provides little assistance in determining whether Ms. Ahmadi should be removed from the MIG based on her pre-existing psychological impairments. I do not find further psychological impairments diagnosed post-accident persuasive because Dr. Lall’s CNRs do not link her psychological impairments to the accident.

18I agree with the respondent that while Dr. Lall’s CNRs document depression prior to the accident, the post-accident CNRs which go up until January 2017 do not reference the accident in connection with the psychological impairments and other factors/stressors related to her home/family life are noted.¹⁵

19Further, I find Ms. Ahmadi has not produced evidence which supports that her pre-existing condition precludes her from achieving maximal medical recovery within the MIG. Ms. Ahmadi has not refuted that she has $591.86 available to her within the MIG or provided an explanation why she has not consumed the limits available to her within the MIG since the accident occurred more than 7 years ago. Therefore, I find that Ms. Ahmadi is not removed from the MIG based on a pre-existing condition or psychological impairments diagnosed post-accident.

Is Ms. Ahmad entitled to $2,825.00 for an accounting report?

20Ms. Ahmadi argues the accounting report was reasonable and necessary to calculate her entitlement to income replacement benefits (“IRBs”) in accordance with s. 7(4) of the Schedule. Ms. Ahmadi submits the accounting report further calculated her employment insurance (“EI”) at the time of the accident.

21The respondent submits the disputed accounting report is dated July 27, 2016¹⁶ which was received by the respondent July 31, 2020 as confirmed by a letter by the respondent dated August 4, 2020.¹⁷ The respondent notes in this letter that the accounting report is not necessary to calculate the IRB and requested further documentation be produced by the applicant to reconsider entitlement to income replacement benefits. The respondent submits the applicant failed to produce the requested documents. The respondent relies on P.M. v. Aviva Insurance Canada (“P.M.”)¹⁸ in which the adjudicator determined as the applicant was an employee, calculation of the applicant’s weekly IRB would not have been difficult. The adjudicator further determined that the lack of information and incorrect information produced by the applicant led to a delay and an incorrect IRB calculation. As a result, the adjudicator found the accounting report was not reasonable and necessary.

22The respondent further argues that the accounting report is not reasonable and necessary as the EI amounts form a straight deduction from her gross employment earnings, which was a sole source of employment income from one employer. The respondent submits the handling claims adjuster was able to perform this calculation. The respondent relies on the Tribunal decision, A.G-B. v. Unica Insurance Inc.(“A.G-B”)¹⁹ in which the adjudicator relied on three prior Tribunal decisions which held where a calculation is straightforward, a report under s.7(4) of the Schedule is unnecessary. The adjudicator determined the accounting report was not reasonable and necessary because the income calculation was straightforward as the applicant had one source of employment income and her post-accident maternity benefits required a simple deduction.

23I find the accounting report in the amount of $2,825.00 is not reasonable and necessary. I agree with the respondent’s submission that Ms. Ahmadi was an employee and that EI amounts form a straight-forward deduction from her gross employment earnings. I find the Tribunal decision, A.G-B which relied on three prior Tribunal decisions is directly on point. Ms. Ahmadi did not challenge the respondent’s submission regarding her failure to produce the requested documentation outlined in the respondent’s letter dated August 4, 2020. I find the facts of this case are analogous to the P.M. case. I accept on a balance of probabilities, that all the requested documents were not produced which would have assisted the respondent in reconsidering her entitlement to IRBs and that the accounting report was not reasonable and necessary.

Interest

24As Ms. Ahmadi is not entitled to any of the claimed benefits, no interest is owing.

CONCLUSION

25For the reasons I have addressed above, I find the following:

i. Ms. Ahmadi sustained predominately minor injures as a result of the accident and is not removed from the MIG as a result of chronic pain, or any pre-existing psychological injuries, or post-accident psychological impairments.

ii. Ms. Ahmadi is not entitled to the cost of the accounting report in the amount of $2.825.00 as it is not reasonable and necessary.

iii. As no benefits are payable, no interest is owing.

26The applicant’s claim is dismissed.

Footnotes

1. 1Ontario Regulation 34/10, as amended.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 (Divisional Court), at para. 24.
3. 3Tab 1 of applicant’s document brief, clinical notes and records (“CNRs”) of Dr. R. Lall dated August 1, 2014, at page 64 of 299.
4. 4Ibid, CNR of Dr. Lall dated January 23, 2015, at page 66 of 299.
5. 5Tab 2 of applicant’s document brief, OCF-3 submitted by Mackenzie Medical Rehabilitation Centre dated January 15, 2021 at pages 97-102 of 299.
6. 6Supra, note 3, CNR of Dr. Lai, dated January 24, 2017, at page 72 of 299.
7. 7Ibid, Radiology report of right elbow dated August 2, 2014, at page 24.
8. 8Respondent’s evidence, OCF-18 dated January 23, 2015 at pages 61-67 and OCF-18 dated January 15, 2021 at pages 73-81.
9. 9Supra, note 5, page 1 of OCF-3 dated January 15, 2021, at page 97.
10. 10Supra, note 3, CNRs of Dr. Lall referencing back pain dated August 1, 2014, January 23, 2015, and January 24, 2017 at pages 64, 66, 72.
11. 11Supra, note 3, CNR of Dr. Lall dated June 20, 2013, at page 57.
12. 12Ibid, CNR of Dr. Lall dated November 10, 2014 and Report from Rouge Valley Hospital dated November 10, 2014, at pages 66, 77-78.
13. 13Ibid, CNR entries of Dr. Lall dated October 4, 2016 and October 7, 2016, at pages 71-72.
14. 1417-002734 v. Tradition Mutual Insurance Company, 2018 CanLII 2299 (ONLAT), at para 27.
15. 15Supra, note 3, CNRs of Dr. Lall dated October 28, 2014, October 4, 2016, October 7, 2016, and January 24, 2017, at pages 64-65, 71-72.
16. 16Tab 3 of applicant’s submissions, S & T Accounting report dated July 26, 2016 and fax cover page addressed to adjuster dated July 31, 2020, at pages 104, 106.
17. 17Tab 7 of respondent’s submissions, letter from respondent to applicant dated August 4, 2020 which requested complete pay stubs, an OCF-2, the employment file, and updated CNRs supporting the inability to work as a result of the accident, at page 95.
18. 18P.M. v. Aviva Insurance Canada, 2019 CanLII 110129 (ON LAT) at paras. 17, 18.
19. 19A.G-B. v. Unica Insurance Inc., 2021 CanLII 45643 (ON LAT) at paras 12-14.