Amadiegwu v. Aviva General Insurance Company
Licence Appeal Tribunal File Number: 19-005824/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:
Clement Amadiegwu
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Clement Amadiegwu, Applicant
Sam Elbassiouni, Paralegal
For the Respondent:
Mohamed R. Hashim, Counsel
HEARD by Videoconference:
July 26, 27, 28, 29, September 27, 29, October 4, 7, 22, and 25, 2022.
OVERVIEW
1The applicant was injured in an accident on September 11, 2017 and sought income replacement benefits (IRBs) from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101(''Schedule''). The respondent however denied the IRBs on the basis the applicant was not entitled to same, and the applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
a. Is the applicant entitled to IRBs in the amount of $340.85 per week for the period of January 29, 2018 to date and ongoing?
b. Is the applicant entitled to interest on any overdue payment of benefits?
c. Is the respondent liable to pay an award under O. Reg 664 because it unreasonably withheld or delayed payments to the applicant?
3As per the parties the weekly quantum of the IRBs is not in dispute.
RESULT
4The applicant is not entitled to IRBs, interest, or an award under O.Reg 664. The applicant has not met his burden in demonstrating that his physical injuries are as a result of the accident and his psychological injuries preclude the applicant from returning to work or working thus the applicant is not entitled to IRBs.
ANALYSIS
5The applicant and respondent agree that pre-accident the applicant was self-employed and owned a company that would salvage car parts and sell those parts. The applicant provided evidence that the essential tasks of his pre-accident employment included driving to car auctions (province wide), purchasing cars, dismantling the vehicle, and harvesting the parts and carrying parts to shipping containers. The container once full would be shipped and then the applicant would fly overseas to meet the shipment and proceed to sell the parts. The respondent did not present or point to any issues with the description provided by the applicant, therefore I do not.
6With respect to the weekly quantum of the IRBs the applicant and respondent agree that it is not an issue. However, the issue of whether the applicant did in fact have post-accident income is an issue in dispute if I find that the applicant is entitled to IRBs.
7To begin the analysis however I must first determine if the applicant is entitled to IRBs within 104 week of the accident and if the applicant is entitled to IRBs post 104 weeks of the accident.
8Pursuant to section 5 and 6 of the Schedule, for the applicant to succeed with his claim for IRBs within the 104 weeks following the accident and specifically from January 29, 2018 to September 11, 2019 he has to establish on a balance of probabilities that he suffers a substantial inability to perform the essential tasks of his employment due to impairments sustained as a result of the accident. For the applicant to succeed in his claim for IRBs 104 weeks post- accident or commencing September 12, 2019 and ongoing, the applicant must establish on a balance of probabilities that as a result of the accident he suffers a substantial inability to engage in any employment or self-employment for which he suited by education, training or experience. The applicant must show that his inability to perform his own job and/or any job is related to injuries and subsequent impairments sustained as a result of the accident.
9The applicant submits that he sustained both physical and psychological injuries in the accident. He submits that the physical injuries are an exacerbation of pre-existing chronic low back pain and that the physical injuries sustained in the accident have worsened his pre-existing conditions resulting in an inability to work at his own job or at any job for which he is reasonably suited. The applicant as well submits that as a result of the accident he sustained psychological injuries that are impairing and thus causing an inability to work.
10The respondent submits that the applicant did not sustain any longstanding physical injuries and the physical complaints and injuries that the applicant had post-accident were the same as the ones he had pre-accident. The respondent submits that it is because of the pre-existing issues that the applicant suffers a substantial inability to work at his pre-accident self-employment job. The respondent however does concede that the applicant does have psychological injuries as a result of the accident, however the respondent submits the applicant has not shown that the psychological injuries are causing the applicant a substantial inability to perform the essential tasks of his pre-accident job or an inability to perform any job for which he is reasonably suited.
Are the Physical Injuries as a result of the Accident?
11For the reasons noted below I find that the applicant has not sustained any significant and/or limiting physical injuries as a result of the accident. The evidence shows that the physical injuries that the applicant submits are accident related are actually long-standing chronic pain in his lower back. This chronic pain also had features of radiculopathy that were being investigated both pre-and post-accident. There was no change in the treatment protocol following the accident nor did any of the treating doctors seem overly concerned that the applicant met with the subject accident in 2017 and thus nothing further by way of treatment or diagnosis was done.
12The evidence shows that in 2004 the applicant was involved in a rollover motor vehicle accident. Although the applicant denied this when questioned at the hearing, the clinical notes and records of February 12, 2004 of Weston Road Medical Center (Medical Centre) show that the applicant told his doctor about the accident. On March 3, 2004 the applicant again told his doctor about this accident and provided details and reported that the was having lower back pain. In the March 3, 2004 note the treating doctor notes that the applicant has a history of lower back pain.2
13In 2013 the applicant was involved in another accident. The applicant acknowledges this accident and acknowledges that as a result of the injuries sustained in this accident, he stopped working at his company from 2013 onwards and only returned to work in May or June of 2017. In other words, as a result of the injuries sustained in the 2013 accident the applicant had a substantial inability to work for over 4 years. This is persuasive in showing that the applicant had pre-existing injuries and impairments that limited his functions. The applicant only resumed working 2-3 months prior to the accident.
14As discussed in detail below from 2016 to the date of the accident the medical evidence again shows that the applicant's chronic back pain was worsening culminating into nerve block injections and a discussion of surgery as a last resort. These discussions about surgery and the nerve block injections took place prior to the accident. The specifics of the applicant's pre-accident medical conditions are found in the medical records highlighted below.
15On March 10, 2016 the applicant attended at the emergency department (ER) at Humber River Hospital (the Hospital) and reported throbbing right hip pain that was ongoing for two years. He rated the pain as 7/10 when at rest and that he was unable to sleep at night. He also reported that his pain medication of Advil and Naproxen was not working. The Hospital gave him morphine and Toradol via an IV and discharged him home with a diagnosis of back strain.
16Four days later, March 14, 2016, the applicant again attends the ER at the Hospital due to the pain in his hip that is shooting into his leg with numbness and on and off for about four years. The applicant is in wheelchair and reports that he is not able to walk and hops to get around at home. At the ER the applicant is unable to stand to allow the ER triage to do an assessment. The ER doctor orders a CT scan. The applicant is eventually discharged and although there was no diagnosis, there is a notation that the ER doctor is trying to rule out leg nerve impingement. The applicant is given Toradol via an IV and Percocet orally.
17The CT scan of March 14, 2016 confirmed that the applicant has disc bulges at L1-2, L2-3, L3-4, and L4-5.
18On March 16, 2016 the applicant's family doctor, Dr. Otto sent a request for consultation to Dr. Seligman, orthopaedic surgeon. In the request for consultation Dr. Otto stated the following:
"This 39-year-old man with a history of injury is complaining of increasingly severe back pain radiating down his right leg. He was recently seen in the emergency department for back pain."
19Dr. Otto as well on April 18, 2016 confirms that the applicant has complaints of back pain. He diagnoses the applicant with lumbar spine strain and prescribes physical therapy and to continue medications.
20The applicant is seen by Dr. Seligman who becomes the applicant's treating orthopaedic surgeon. In Dr. Seligman's notes of April 20, 2016, he confirms that the applicant has lower back pain and right leg pain. He reviews the CT and notes the CT shows pressure at the L3-4 and in his physical examination he notes that the applicant has normal straight leg raises but has weak quadriceps on the right. He concludes that this is probably nerve root pressure and recommends nerve block injection. He also states that surgical intervention may be required if things do not improve.
21Despite the recommendation of a nerve root injection the applicant missed his appointment of August 16, 2016.3 Dr. Seligman does see the applicant on September 16, 2016 and notes that the applicant's pain is persisting.
22On September 19, 2016 the applicant attends the Medical Center and reports back sprain and pain with no neurological symptoms. The applicant is prescribed naproxen.
23The applicant does receive his nerve block injection on January 19, 2017 and then has a consultation with Dr. Seligman on January 25, 2017. In this consultation Dr. Seligman notes that the injection reduced the leg pain, but the back pain persists.
24On February 14, 2017 it is noted by the applicant's family doctor, Dr. Otto, that the applicant attends for back pain and was injured in a motor vehicle accident, referring to the previous accident(s) and not the subject accident as this pre-dates the accident. He diagnoses lumbar spine strain and orders physical therapy and to continue medication.
25On April 19, 2017, five months prior to the accident, the applicant returns to the Medical Centre and reports shooting pain in the left side of his back. In this note the doctor notes that applicant's work is "ship parts", "lift heavy" and it appears there is a diagnosis of muscle spasm and/or strain (the remainder of the handwritten note is illegible).
26Two days later on April 21, 2017 the applicant again attends the ER at the Hospital with paraspinal muscle pain for the last three days. The ER notes that the applicant has chronic back pain. The applicant reports at the Hospital that he has a three-day history of flank pain, was moving and pulling heavy items and the pain followed. He rated his pain as 10/10 and took naproxen, Tylenol 3, and cyclobenzaprine with no improvement. He further reported that his symptoms are aggravated by movement, sitting, standing, and walking. The ER doctor noted that the applicant has chronic lower back issues, and the applicant is given Toradol via injection (intramuscular) and Percocet orally. The applicant is discharged with a diagnosis of myalgia i.e., muscle pain or pulled muscle.
27That same day, April 21, 2017, the applicant unfortunately had to return to the hospital as he was feeling dizzy, unwell, and weak. He was driving at the time he felt the aforementioned symptoms and thus pulled over and called the paramedics who transported him the Hospital. Again, it was noted that the applicant has a history of chronic back pain related to a motor vehicle collision, again referring to the previous accident and not the subject accident as this pre-dates the subject accident.
28On May 12, 2017 the applicant returned to the Medical Centre wherein it was noted : "2013 MVA – back pain which causes headaches when back pain is severe." On this date the applicant is diagnosed with tension headaches brought on by back pain.
29The applicant submits that despite the above he sustained further or worsening physical injuries as a result of the subject accident. However, the evidence does not show that the applicant's complaints, limitations, and pains differ in any way from those pre-accident.
30Following the accident, which is the subject of this application, the applicant was taken to the Hospital via ambulance. Both the ambulance call report and the Hospital notes show that the accident was a low speed accident with minimal damage to the vehicle. The report noted that the applicant complained of right neck pain, shortness of breath and was very anxious however there are no reports of back pain and that in examination there is no back pain. There is however right knee pain but no sign of trauma to the right knee.
31Prior to the accident, as noted above, when the applicant attended at the Hospital, he received medications intravenously and/or intramuscularly and also received narcotics. On the day of the accident at the hospital there was no medication administered but rather he was provided with a prescription of Norvasc and told to follow up with his family doctor.
32Three days later on September 14, 2017 the applicant sees Dr. Otto who notes that the applicant was injured in a motor vehicle accident on September 11, 2017 but that he "HAD previous back problems". The diagnosis however remains the same as it was pre-accident – lumbar spine strain. The recommendations are the same as pre-accident - physical therapy and to continue with his medications.
33The applicant sees Dr. Seligman on November 27, 2017. This visit takes place after the applicant missed two re-assessment appointments. At this November 27, 2017 visit Dr. Seligman notes that the applicant was involved in the September 11, 2017 accident wherein he hit his knee and developed pain from his lower back down into his right leg again. Dr. Seligman states that the applicant has "acute on chronic back problems". He then arranges for a new MRI.
34In the consultation note of January 8, 2022 of Dr. Seligman notes that the applicant has pain in his lower back. He also confirms that the MRI showed degenerative disc disease at multiple levels. Dr. Seligman then arranges for a nerve conduction study.
35On January 22, 2018 Dr. Seligman notes the result of the nerve conduction study show that there are no neurological or nerve issues. Dr. Seligman again recommends an L4 block injection.
36The applicant submits that he has radiculopathy and other injuries as a result of the accident. To this end the applicant relies on the report and testimony of Dr. Getahun, orthopaedic surgeon. I place minimal weight on the opinion of Dr. Getahun with respect to his diagnosis of the applicant's accident-related injuries for the reasons that follow.
37Dr. Getahun in the chronic pain assessment report of September 11, 2019 notes that the applicant lost consciousness in the accident and that the applicant reported that he was having back pain to the paramedics and at the Hospital. The is factually incorrect and as noted above there was no loss of consciousness and certainly no complaints of back pain at the scene or at the Hospital.
38Dr. Getahun notes a past history of a 2013 motor vehicle accident however makes no mention of the nerve block injections prior to the subject accident, the numerous hospital visits, the fact the applicant was unable to work for four years following the 2013 accident and the medications of morphine and recommendations of physiotherapy prior to the subject accident. I am not clear if the Dr. Getahun only chose to highlight the medical information following the accident or did not have and thus did not review the pre-accident medical information. In any event Dr. Getahun opines, in the absence of the pre-accident history, that as a direct result of the accident the applicant has chronic myofascial strain of the cervical spine and chronic myofascial strain of the lumbosacral spine and evidence of radiculopathy on the right.
39I place minimal weight on Dr. Getahun's diagnosis that the chronic strain of the back and suspected radiculopathy is as a result of the accident because it is clear based on the evidence above that the prior to the accident that applicant was already diagnosed with chronic back pain and suspected radiculopathy. With respect to the diagnosis of myofascial strain of the cervical spine, the applicant testified that his neck pain had resolved.
40Dr. Getahun provided a further report on April 15, 2021 as part of a multidisciplinary assessment for "Post 104 IRB Determination". This time Dr. Getahun acknowledges that the applicant had a pre-accident history of back pain. However, again Dr. Getahun makes no mention of the treatments and the increasing severity of the back pain and nerve root irritations prior to the subject accident. Again Dr. Getahun does not mention that the applicant stopped working from 2013 to 2017 due to his back injury from a previous accident. Dr. Getahun notes current limitations of sitting, standing, lifting, bending and carrying, but makes no mention of the limitations that the applicant had prior to the accident that are specifically noted in the Hospital record of April 21, 2017 (described in detail above) that including standing and walking.
41Dr. Getahun also provided oral testimony at the hearing however the oral evidence did not assist in supporting his conclusion and did not provide explanations that overcame the above noted deficiencies in his opinion. Thus, I am not persuaded by this report or his evidence.
42While the above is not an exhaustive review of all the evidence tendered, the fact remains that applicant had serious physical injuries and impairments prior to the accident. A distillation of the evidence, specifically the evidence of the insurer examination (IE) doctor, would only serve to buttress the above fact and my finding that the applicant was impaired prior to the accident.
43In terms of the worsening or exacerbation of the pre-existing injuries and impairments, the applicant does not point to objective evidence or other medical evidence that shows on a balance of probabilities that the applicant had physical injuries post-accident that were more than merely an acute flare up of pre-existing impairments. The MRI did not show any accident-related injuries and the applicant's treating doctors as well have not shown or opined that the September 11, 2017 accident had any effect on the applicant.
44The applicant self-reports that there was a worsening or exacerbation of his symptoms, however as noted in the report of Dr. Getahun the applicant reports a loss consciousness and back pain at the scene of the accident, which was incorrect. The medical records of Dr. Seligman show that when the applicant attends for his nerve conduction study he does not inform the doctor doing the nerve conduction study that the issues with his leg have been long standing but rather he tells the doctor that they relate only to the accident of September 11, 2017. Thus, the applicant cannot be entirely relied upon to report his symptoms accurately and I cannot rely on simply the testimony of the applicant without corroborating evidence.
45Based on the evidence and findings above, the applicant has not met his onus to show that he has physical injuries as a result of the accident. Rather the evidence shows the applicant had ongoing physical injuries and impairments that pre-date the accident and these issues continued after the accident without any exacerbation, worsening or change that is related to the accident.
Did the psychological injuries cause a substantial inability?
46The applicant has not met his onus with respect to whether he sustained psychological injuries as a result of the accident that cause a substantial inability to perform the essential task of his pre-accident employment or any employment for which he is reasonable suited for the reasons noted below.
47The applicant submits that he sustained psychological injuries that are disabling and thus causing an inability to work. The applicant testified that prior to the subject accident and following the 2013 accident he received professional psychological treatment and found it helpful.
48The IE assessment by Dr. Mor, psychologist on November 12, 2002 opined that as a result of the accident the applicant "meets the DSM criteria for Somatic Symptom Disorder with predominant pain, persistent which preceded the subject accident and likely exacerbated by its occurrence."
49The above is similar to the diagnosis made by Dr. Harris, psychologist, in his assessment of June 13, 2018. The difference between Dr. Harris' diagnosis and Dr. Mor's is that Dr. Harris does not report or mention that the applicant had pre-existing psychological conditions or treatment and as well Dr. Harris makes no mention of the physical injuries and impairments of the applicant prior to the subject accident.
50Nonetheless based on the consensus I accept that the applicant had psychological injuries as a result of the accident. As noted below the applicant however has not shown on a balance of probabilities that the psychological injuries from the accident cause a substantial inability to perform the essential tasks of his pre-accident employment.
51The applicant relies on the report and evidence of Dr. Shahmalak, psychiatrist, who concluded that the applicant has major depressive disorder and somatic symptom disorder predominant pain as a result of the accident. Dr. Shahmalak then concluded that the applicant is precluded from working at any occupation.
52For the reasons noted below I am not persuaded by the opinion of Dr. Shahmalak.
53Dr. Shahmalak provided oral evidence that based on the information provided by the applicant that there was nothing physically or psychologically pre-accident that was impeding the applicant in performing his employment duties.4 Dr. Shahmalak was asked about his understanding of the applicant's condition prior to the accident, and he responded that during his assessment the applicant denied any history of psychotherapeutic treatment and hospitalizations including a CT.
54Dr. Shahmalak in his report confirms there are no apparent anxiety or amotivation limiting the applicant's vocational activities. He does however conclude that he assessed the applicant's psychological ability to cope with work-like demands such as capacity to sustain attention/concentration and attention, work activity pace stamina, interpersonal functions etc. Dr. Shahmalak then concluded that due to the applicant's psychological impairments the applicant would struggle in those areas (i.e., work like demands).
55Dr. Shahmalak, despite providing testimony at the hearing, does not point to where in his assessment he specifically assessed the applicant's psychological ability to cope with work like demands. Dr. Shahmalak confirms in his testimony that he does not specifically assess the applicant's ability to cope with work like demands but rather as the applicant self-reported that he has limitations in other areas of his life and is experiencing psychological distress. Dr. Shahmalak stated he then extrapolates the information that the applicant provides and applies it to work like demands and from this extrapolation he comes to the conclusion that the applicant is not able to work due to the psychological impairments.
56I am not persuaded by Dr. Shahmalak's findings as described above for a variety of reasons. First, Dr. Shahmalak starts with the premise that the applicant had no physical or psychological issues pre-accident that were limiting his functionality and states this in his testimony. However, as distilled in detail above, the applicant did have pre-existing issues that resulted in limitations in function.
57The second major issue with Dr. Shahmalak's opinion is that the applicant self-reports his limitations post-accident in other areas of his life such as housework and socialization yet again there is no corroborating evidence to support this. The clinical notes and records of his treating doctors do not show the applicant mentioning limiting behavior as a result of depressive symptoms or "feeling down" and there were no witnesses called to provide evidence of any functional changes of the applicant pre- and post-accident. As noted above there are concerns regarding the accuracy of the applicants self-reporting of accident-related issues.
58Lastly with respect to Dr. Shahmalak's opinion that the applicant is unable to work, this is based on Dr. Shahmalak merely extrapolating, without actually testing, that the applicant would likely have issues with concentration, stamina and pace and dealing with work like stressors and thus is unable to work. When asked in his direct examination at the hearing about how Dr. Shahmalak reaches the conclusion that the applicant could not work at any job, Dr. Shahmalak states:
"I made a general conclusion based on what I saw. And how I concluded that it would -- I suspect that most jobs for him would fall into the same category of him not being able to perform them consistently, productively and completely."
59While an extrapolation to form a conclusion in and of itself is not generally problematic, it is in this case because the information that Dr. Shahmalak used to make the conclusion (specifically the information that the applicant had no pre-existing functional limitations and post-accident the applicant self-reports various functional limitation) is based on extrapolated information that is factually incorrect and uncorroborated.
60As the applicant points to nothing further to substantiate his inability to work due to psychological issues and the applicant himself did not testify that it was for psychological issues that he is not able to work, I find that that the applicant has not met his onus to show that as a result of the accident he sustained psychological injuries that prevent his from performing the essential tasks of his own job or any job for which he is reasonably suited for.
Is the Applicant entitled to IRBs, Interest, or an Award?
61Given my findings above I find that the applicant is not entitled to IRBs from January 28, 2022 to date and ongoing. The applicant has not met his onus to show on a balance of probabilities that he sustained physical injuries as a result of the subject accident and the applicant has not shown that the psychological injuries that he did sustain caused a substantial inability for the applicant to perform the essential tasks of his pre-accident employment or any employment for which he is reasonably suited for. Thus, the applicant is not entitled to IRBs.
62As no benefits are due, no interest is payable under section 51 of the Schedule. Further, as no benefits were withheld, it cannot be said that the respondent unreasonably withheld the benefits, thus there is also no award under O.Reg.664.
CONCLUSION
63The applicant's appeal is dismissed in its entirety.
Released: January 14, 2021
___________________________
Monica Chakravarti, Adjudicator
Footnotes
- O.Reg. 34/10 as amended.
- Applicant's Brief page 524 (of 990).
- Applicant's Brief page 305
- Page 30, Transcript of the evidence of Dr Shahmalak