Heidar Sarchami v. Jevco Insurance, 2021 CanLII 127465

Citation: SARCHAMI v. Jevco Insurance, 2021 ONLAT 19-008404/AABS

Licence Appeal Tribunal File Number: 19-008404/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:

HEIDAR SARCHAMI

Applicant

and

Jevco Insurance

Respondent

DECISION AND ORDER

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Heidar Sarchami, Applicant Jeffrey Gray, Counsel

For the Respondent: Kevin Shapcott, Representative Andrew Franklin, Counsel

Court Reporter: Alison Minors Elizabeth Mercure

HEARD: by Videoconference: October 19, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was involved in an automobile accident on November 26, 2016 (“the 2016 accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).¹

2The applicant claims that based on his accident-related injuries he should be entitled to a non-earner benefit (NEB), reimbursement for medication and treatment beyond the $3,500.00 Minor Injury Guideline (MIG)² limits. Based on the initial application, medical reports and assessments, the respondent determined the applicant’s injuries fell within the MIG. The applicant applied for these benefits and was denied.

3The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”)³ for dispute resolution.

ISSUES

4The issues in dispute for this hearing are:

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

b. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period of December 26, 2016 to date and ongoing?

c. Is the applicant entitled to a medical benefit in the amount of $3,800.00 (partially approved for $2,200.00) for chiropractic treatment recommended by Dr. Komeilinejad in a treatment plan submitted on July 18, 2017, and denied by the respondent on August 10, 2017?

d. Is the applicant entitled to a medical benefit in the amount of $1,649.84 for prescription medications?

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

f. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

5The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit.

6The applicant is not entitled to a non-earner benefit.

7The applicant is entitled to treatment up to $3,500.00. The treatment plan in the amount of $3,800.00, which was already partially approved, is approved for the remainder of the MIG limits.

8The applicant is not entitled to reimbursement of expenses relating to his prescription medications.

9The applicant is entitled to interest. The applicant is not entitled to an award.

THE MINOR INJURY GUIDELINE AND THE DISPUTED TREATMENT PLAN

10The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

11To request treatment above the $3,500.00 funding limit, the applicant must prove, on the balance of probabilities, that his injuries do not fall within the definition of minor injury in section 3 of the Schedule. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

12The applicant argues that he should not be subject to the MIG because he has pre-existing conditions and injuries from a 2015 accident that prevents maximal recovery within the MIG funding limits. He argues that he should be removed from the MIG and the full amount of the treatment plan be approved.

13The respondent argues that the evidence demonstrates that the injuries from the 2016 accident were nothing more than soft tissue injuries. They submit there is no evidence that supports an exacerbation of the injuries from the 2015 accident and whether it impacts recovery within the MIG. The respondent relies on Scarlett and Belair⁴ for the principle that the onus is on the applicant to prove he is out of the MIG and requires credible evidence to support his claim.

14For an applicant to be removed from the MIG, there must be:

Compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any prepared by a health practitioner.

The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing conditions will not do so.

Only in extremely limited instances, where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition that was documented by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline.⁵

15The treating chiropractor, Dr. Komeilinejad, recommended the treatment plan in dispute. She testified that the applicant could not be treated under the MIG because of his pre-existing psychological symptoms and his lumbar spine disc injury. She testified that, at the time she had filled out the treatment plan, she was in possession of two MRIs, one prior to the 2016 accident and another approximately six months after, which confirmed a disc bulge resulting from the 2016 accident. She also testified that because she is chiropractor, she cannot diagnose psychological impairments, but that he was symptomatic and further investigation needed to be conducted.⁶

16The medical evidence from the hearing confirmed that prior to the 2016 accident the applicant had a multi-level disc bulge and SI joint strain.⁷ Neither party had access to the post-accident MRI.

17The applicant’s General Practitioner (GP), Dr. Salimpour, referred him to a physiatrist, Dr. Amani. Dr. Salimpour’s clinical notes contain four reports by Dr. Amani: two reports prior to the 2016 accident and two reports after. The diagnosis and recommendations did not change after the 2016 accident.⁸

18Regarding the applicant’s psychological issues, Dr. Salimpour referred him to a psychiatrist, Dr. Cardan. Dr. Cardan wrote a report dated March 12, 2016 stating that the applicant has been diagnosed with Klein-Levin syndrome and that the 2015 accident is a factor in his psychological impairment.⁹ No post-accident clinical notes were produced to determine if the 2016 accident had any bearing on his mental status.

19As noted in the MIG and s. 18(2) of the Schedule, the mere presence of a pre-existing condition does not automatically exclude a person from the MIG, and it is expected that the vast majority will not do so. The health practitioner must show that the documented pre-existing condition will prevent the person from achieving maximal recovery from the minor injury if subjected to the MIG funding limits.

20The language used in the MIG and in s. 18(2) of the Schedule, such as, “will not automatically”, “the vast majority will not”, and “extremely limited instances” indicates the intent of the legislation was that treatment outside of the MIG, because of a pre-existing injury, ought to be approved in rare occurrences.

21The applicant has documented pre-existing physical and psychological impairments, but there is limited post-accident records to determine how the 2016 accident had any effect on them. The applicant has not discharged his onus in demonstrating that he has an impairment outside of the MIG or that he cannot achieve maximal recovery from the minor injury within the MIG.

22The reports from Dr. Amani show no difference in diagnosis or treatment recommendations for the 2016 accident. There is no opinion or compelling documentation from Dr. Cardan on his psychological condition and whether it has been affected by the 2016 accident. Also, there is no diagnosis or treatment recommendations from Dr. Salimpour regarding the 2016 accident.

23To support the respondent’s position, both Insurer’s Examinations under s. 44 of the Schedule diagnose the applicant with nothing more than soft tissue injuries as a result of the 2016 accident, and the assessors opine that injuries can be treated successfully within the MIG.¹⁰

24Based on the reasons listed above, I find that the applicant’s injuries fall within the MIG and subject to $3,500.00 of treatment.

25The parties agreed that if I found the applicant subject to the MIG and the treatment plan was reasonable and necessary, that there was nothing in the legislation preventing me from awarding up to the MIG limits. The respondent relies on J.R. and Certas Home and Auto Insurance Company¹¹ and Applicant and Aviva Insurance¹² that an adjudicator cannot rely on bald assertions to entitle an applicant to benefits, it needs to be rooted in evidence.

26I find that there is sufficient evidence and the treatment plan is reasonable and necessary. The applicant was diagnosed with minor injuries, and Dr. Komeilinejad found that chiropractic treatment would benefit the applicant. The IE assessor, Dr. Moolla, physician, found that the applicant had reached maximal medical recovery, in other words, would not permanently improve with treatment. Despite this finding, he does not comment on whether pain reduction would be a legitimate goal to render the treatment plan reasonable and necessary. Since the applicant still has remaining MIG limits, I find that reducing his pain through chiropractic treatment is a legitimate reason for finding a treatment plan to be reasonable and necessary. This was a documented goal in the proposed treatment plan. I find the treatment plan reasonable and necessary and is approved up to the MIG limits.

NON-EARNER BENEFIT

27The applicant claims he is entitled to a NEB because he did not feel better after the 2016 accident. He testified that he could not complete his activities of daily living (ADLs) and his treating chiropractor recommended that the applicant should rest.

28The respondent submits that there is no entitlement to NEB because they had not received a Disability Certificate (OCF-3) until after the entitlement period and because he does not meet the NEB test. While the applicant may have had a small disruption in his ADLs, it is not enough to meet the test for NEB. The respondent relies on Smith v. Intact¹³ for when a disability certificate should be considered received by an insurance company. The respondent also relies on J.Q. v Co-operators¹⁴ and the Court of Appeal’s decision in Heath v. Economical¹⁵ that a proper NEB analysis means that the adjudicator cannot rely on a snapshot in time but needs to look at a longer period of the applicant’s pre- and post-accident life.

29There is much debate between the parties on when the Disability Certificate (OCF-3) was received by the respondent. The applicant claims the OCF-3 was sent to the respondent by Dr. Komeilinejad July of 2017 and the respondent claims it never received it until the applicant’s lawyer sent a copy in December of 2019. Dr. Komeilinejad testified that she completed the OCF-3 on July 18, 2017, kept a copy for her file and her secretary mailed the document to the respondent within a few days of filling it out. She testified that she also faxed a copy to the applicant’s lawyer by the end of that very month.¹⁶ The respondent claims it never received it and that has been recorded in the numerous letters sent to the applicant and the applicant’s lawyer.¹⁷ In the last few letters to the applicant, the respondent requested the OCF-3 via a s.33 request.¹⁸ Section 33(6) of the Schedule states that failure to reply to a s.33 request puts the applicant in a period of suspension until he has complied with the request. The applicant was officially placed in a period of suspension effective April 28, 2017.¹⁹ The applicant or his counsel never follow up on the missing OCF-3 with the respondent until December 10, 2019.²⁰

30I find Dr. Komeilinejad to be truthful. She was clear and concise in her testimony on her normal procedures, the timeline of events, and how they line up with the dates on the OCF-3 and the fax receipt to the applicant’s lawyer. The respondent never received the OCF-3. I find the respondent discharged its duty in s. 32 in advising the applicant the potential benefits he may be entitled to and what forms they still required. Neither the applicant nor the lawyer followed up with the respondent. After four letters requesting the OCF-3, the respondent warned the applicant that a failure to comply with the request would result in a period of suspension of the benefit. The final letter to the applicant requesting the OCF-3 came in a letter dated May 3, 2017 and since he had not responded to the request within the allotted timeframe, the benefit was suspended effective April 28, 2017. It was not until approximately 2.5 years later that the applicant’s lawyer inquired whether the respondent received the OCF-3. By that time, the applicant’s ability to apply for the benefit had elapsed since the benefit is only payable within the first two years of the claim.

31Even if the OCF-3 was received within the timelines prescribed within the Schedule and the applicant was not placed in a period of a s. 33 suspension, the applicant is not entitled to the benefit.

32In order to be entitled to a NEB, the applicant must prove that he “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 impairments that continuously prevent the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”²¹

33This is a high bar to meet. This test is set out in the Court of Appeal’s decision of Heath v. Economical.²² It involves looking at the injuries the applicant sustained as a result of the accident and whether they continuously prevented him from engaging in a large part of his pre-accident activities. To summarize paragraph 50 of the decision, the following are factors to consider when analyzing the test for NEB:

a. A comparison between the applicant’s activities and life circumstances before and after the accident.

b. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.

c. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.

d. In proving “continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.

e. In proving “engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.

f. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities?

34What is considered a “normal life” is different for everyone. The applicant describes his normal life as attending to his personal care and completing his university courses.

35However, I find the applicant was not continuously prevented from carrying on a normal life.

36In his testimony, the applicant described how he had personal care limitations before the 2016 accident, that included showering, cooking, shopping, and laundry. He would complete those tasks but with pain limitations. The applicant testified that prior to the accident, he could not take a shower, that he would do it but with a lot of pain.

37After the 2016 accident, the applicant described how many of his personal care tasks ceased for a few weeks, but then resumed with greater pain symptoms. Even though the applicant completed his personal tasks but with greater pain complaints, there was no evidence to suggest he could not practically do it. The applicant had limitations in his personal care tasks prior to the accident and based on his testimony not much changed afterwards. There was no evidence to suggest that he was restricted in completing his personal care tasks or that pain prevented him from doing so.

38The applicant testified he was not responsible for any housekeeping tasks or engaged in any social recreation before or after the 2016 accident.

39Lastly, regarding his university courses, the applicant testified that before the accident he would complete anywhere from one to three courses per year. After the accident, he could not attend school for two months following the accident, but later resumed them. Since the accident, in the last five years, he has completed nineteen courses, an average of four per year.

40Based on the applicant’s testimony, the 2016 accident may have prevented him from engaging in some of his pre-accident activities for a short period of time (less than a few months), but then they resumed. He resumed his personal care tasks, although with greater pain, and resumed his schooling, completing more courses per year than he had prior to the 2016 accident. This brief interruption in the applicant’s daily living activities does not meet the high threshold of continuously preventing the applicant in engaging in his normal life activities.

41Therefore, the applicant is not entitled to a non-earner benefit.

REIMBURSEMENT FOR PRESCRIPTION MEDICATION

42The applicant requests reimbursement for his prescription medication.

43The Schedule states in s. 15 (1)(c) that medication is payable if it is reasonable and necessary and because of the accident.

44The applicant submitted to the respondent numerous prescription medication receipts on December 5, 2019. The respondent replied in a letter dated December 6, 2019²³ requesting further information to determine eligibility for reimbursement. The respondent required an Expense Form (OCF-6) to be filled out, a pre-MVA prescription record and General Practitioner records recommending these prescriptions because of the accident.

45The applicant submits the prescription medication receipts are due to the accident and therefore reasonable and necessary. The respondent submits that no further details were provided after their letter was sent on December 6, 2019 and that they are still not able to determine whether the requirements under section 15 have been met to entitle the applicant to reimbursement.

46I agree with the respondent. Since that letter on December 6, 2019 and even during the hearing, the applicant has not provided sufficient information to determine whether the medications prescribed were as a result of the accident and reasonable and necessary. The applicant has not supplied a copy of the medication receipts for me to view. At the end of the hearing, I pointed out that I do not have any information regarding what the medication was and the cost for each one. Counsel for the applicant stated that the applicant testified that he has paid for the medication and that should be sufficient.

47Unfortunately, the evidence provided is not enough to determine eligibility for reimbursed. The clinical records do not indicate whether as a result of this accident, the applicant’s medication changed or whether new ones were prescribed. Many of medications were antibiotics relating to infections. According to the records, those infections appear to be unrelated to the accident.

48The applicant has not met his onus to prove that the medication receipts are reasonable and necessary and a result of the accident and therefore he is not entitled to reimbursement.

INTEREST AND AWARD

49The applicant claims entitlement to interest on any overdue payments pursuant to section 51 of the Schedule.

50The disputed treatment plan was found to be reasonable and necessary (up to MIG limits) and interest is payable on any overdue payments.

51The applicant has not given me any submissions regarding the award. After a review of the evidence, I have not found any evidence to support a claim for an award. The respondent has not unreasonably withheld or delayed payments.

ORDER

52The applicant’s injuries are predominantly minor, and treatment is subject to the MIG. I order that the treatment and assessment plan in the amount of $3,800.00 be approved for the remainder of the MIG limits with interest on any overdue payments.

53The remainder of the application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
2. 2Superintendent’s Guideline No. 01/14 Minor Injury Guideline
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
4. 4Scarlett v. Belair Insurance Co., 2015 ONSC 3635 (Div. Ct.).
5. 5Superintendent’s Guideline No. 01/14 Minor Injury Guideline Section 4
6. 6Applicant’s Brief, Tab 1, Page 7, Disability Certificate dated July 18, 2017; Tab 2, Page 13, Treatment and Assessment Plan dated August 10, 2017; and Dr Komeilinejad testimony
7. 7Applicant’s Brief, Tab 3, MRI dated January 7, 2017, MRI dated October 14, 2016; and Respondent’s Medical Brief, Dr. Amani prescription pad recommending back brace
8. 8Respondent’s Medical Brief – Report from Dr Amani dated June 22, 2016; September 20, 2016; January 12, 2017; and March 2, 2017.
9. 9Respondent’s Medical Brief Page 30 – Dr. Cardan Report to Dr. Salimpour dated March 12, 2016
10. 10Respondent’s Medical Brief, Tab 8, Page 1, Dr. Moolla, physician, and page 119, Dr. Zielinsky, psychiatrist.
11. 11J.R. and Certas Home and Auto Insurance Company, 2017 CanLII 59503 (ON LAT)
12. 12Applicant and Aviva Insurance, 2017 CanLII 76916 (ON LAT)
13. 13Smith v. Intact Insurance Company, 2021 CanLii 28712 (ON LAT)
14. 14J.Q. v. Co-operators General Insurance Company 2021 CanLII 97041 (ON LAT)
15. 15Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
16. 16Respondent’s Brief, Tab 5 – Disability Certificate
17. 17Respondent’s Brief, Tab 6 B, – letter from Jevco dated January 30, 2017; March 28, 2017; April 12, 2017; and May 3, 2017
18. 18Respondent’s Brief, Tab 6 B, Letter from Jevco dated March 28, 2017; April 12, 2017; and May 3, 2017
19. 19Respondent’s Brief, Tab 6 B, Letter from Jevco dated May 3, 2017
20. 20Respondent’s Brief, Tab 6 B, Letter from Mr. Gray dated December 10, 2019.
21. 21The Schedule, ss. 3(7) (a) and 12
22. 22Heath v. Economical Mutual Insurance Company, 2009 ONCA 391
23. 23Respondent’s Brief Tab 7