Released Date: 04/22/2021
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:
Imran Satar
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Marc Golding, Paralegal
For the Respondent:
Doha Tambal, Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION
OVERVIEW
1The applicant, Imran Satar, was involved in an automobile accident on May 27, 2017, and sought benefits from the respondent, Aviva Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule").
2The respondent took the position that the applicant's accident-related impairment was predominantly a minor injury as defined in s. 3 of the Schedule and denied him benefits outside the Minor Injury Guideline. The applicant applied to the Licence Appeal Tribunal ("Tribunal") for resolution of the dispute.
ISSUES
3The issues to be decided are as follows:
a. 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?
b. Is the applicant entitled to the following medical benefits recommended by Prime Healthcare Inc., as follows:
i. $1,790.98 for physiotherapy, in a treatment plan (OCF-18) dated February 16, 2018;
ii. $1,361.96 for physiotherapy, in an OCF-18 dated April 6, 2018; and
iii. $1,168.30 for physiotherapy, in an OCF-18 dated May 29, 2018.
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has failed to discharge his onus of establishing entitlement to the medical benefits he seeks. The funds available to the applicant under the Minor Injury Guideline have been exhausted. It is not necessary to consider whether the disputed treatment plans are reasonable and necessary as a result of the accident. Since no benefits are owing, no interest is payable. The application is dismissed.
ANALYSIS
5The applicant bears the onus of establishing, on a balance of probabilities, entitlement to medical benefits in excess of $3,500.00. To do so, he must show that his accident-related impairment is not predominantly a minor injury. "Minor injury" is defined in s. 3 of the Schedule as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."
6The applicant submits that his accident-related injuries exceed the minor injury definition because he developed a chronic pain disorder and a psychological impairment as a result of the accident. In addition, he submits that the Minor Injury Guideline does not apply to him by operation of s. 18(2) of the Schedule: he submits he suffered from pre-existing medical conditions that will prevent him from achieving maximal recovery if he is subject to the Minor Injury Guideline.
7I have reviewed the evidence tendered by the applicant. For the following reasons, I conclude that he sustained minor, soft tissue injuries in the accident and is therefore subject to the Minor Injury Guideline. The evidence does not establish chronic pain or psychological impairments capable of removing the applicant from the Minor Injury Guideline. The applicant has failed to present compelling evidence of a pre-existing condition that will prevent his recovery within the Minor Injury Guideline.
Chronic pain
8The applicant relies on the clinical notes and records of his family physician, Dr. N. Hanna, and the Chronic Pain Assessment Report of Dr. M. Abounaja dated September 29, 2020 as evidence that he suffers from chronic pain warranting removal from the Minor Injury Guideline. He also directs me to his prescription history as evidence that his pain has caused heavy reliance on medication not taken before the accident.
9In his Chronic Pain Assessment Report, Dr. Abounaja lists the applicant's accident-related injuries as sprain and strain injuries, chronic pain disorder, chronic post-traumatic headaches, chronic whiplash, depression, anxiety, post-traumatic fatigue and post-traumatic insomnia. Dr. Abounaja's diagnosis of a chronic pain disorder is unsupported by meaningful analysis. It rests on vague, conclusory and sometimes contradictory statements that are of little evidentiary weight. Dr. Abounaja's report does not reveal what diagnostic criteria, if any, he used to assess the applicant. Moreover, the report does not establish chronic pain of the severity or functionally disabling nature required for removal from the Minor Injury Guideline. Chronicity of pain complaints alone does not warrant removal from the Minor Injury Guideline.
10Dr. Abounaja states that the applicant suffers from "a serious and permanent impairment of an important physical and psychological function" and that this impairment "is serious as it interferes with their daily activities" including housekeeping, home maintenance, social and recreational activities. While asserting the permanence of the applicant's impairment, Dr. Abounaja also opines that the applicant has not yet reached maximum medical recovery. These findings appear to conflict. He again vaguely refers to "many limitations, impairments, and physical disabilities" but does not specifically identify these disabilities or persuasively link them to the accident. The severity of functional limitation asserted by Dr. Abounaja is neither specifically supported in his report nor corroborated elsewhere in the record.
11The applicant's complaints of pain to his family physician, Dr. Hanna, show that the applicant has a history of back and neck pain from a prior accident in which he suffered whiplash. After the subject accident, on June 6, 2017, the applicant visited Dr. Hanna complaining of neck, shoulder and back pain, but reporting that he was still working. Dr. Hanna diagnosed the applicant with whiplash and counselled him to seek physiotherapy. Whiplash is a soft tissue injury that falls within the definition of a minor injury under the Schedule.
12After the June 6, 2017 visit and until October 2017, the applicant visited Dr. Hanna on six occasions to deal with other medical concerns. There is no mention in the clinical notes from those visits of the accident or related symptoms. On October 12, 2017, the applicant complained of low back pain related to the accident. Dr. Hanna prescribed baclofen and naproxen. Based on Dr. Hanna's clinical notes, the applicant only began treatment for his accident-related pain shortly before visiting Dr. Hanna in mid-December 2017.
13From December 2017 to September 2020, the applicant frequently complained to Dr. Hanna of pain in his neck, back and shoulders. On one occasion, Dr. Hanna recommended that the applicant consider a pain clinic, but it does not appear that he ever formally referred the applicant to a specialist for assessment or care. Nor are there records to show that the applicant followed through with the recommendation. Dr. Hanna routinely cites the applicant's diagnoses of whiplash injury as well as calcific tendinosis and degenerative disc disease in relation to the pain symptoms.
14Diagnostic imaging of the applicant's left shoulder (ultrasounds dated September 3, 2018 and August 17, 2020) showed no evidence of torn tendons but did show subscapularis calcific tendinosis. This is a degenerative condition and the applicant has presented no evidence to suggest that it is accident-related. A cervical spine x-ray conducted on March 18, 2019 also confirmed degenerative changes in the applicant's lower cervical spine.
15While the clinical notes and records of Dr. Hanna show a pattern of persistent pain complaints, they do not objectively establish that the applicant's pain is accident-related, other than by noting the applicant's subjective attribution of pain to the accident. The nearly five-month gap in the applicant's reporting of pain symptoms after the accident despite routine visits to Dr. Hanna raises doubt as to the continuity and causation of his pain.
16The applicant has not made submissions or presented evidence to persuasively link the accident to his persistent pain, or to attempt to explain why his symptoms presented nearly half a year after the accident when his initial diagnosis was one of whiplash, a minor soft tissue injury. He has also not explained why it took him several months after Dr. Hanna recommended physiotherapy for him to commence rehabilitation, or to have a health practitioner complete a Disability Certificate identifying his accident-related injuries (this form was not completed until November 16, 2017). The applicant's failure to address the apparent lapse in his pain symptoms undermines his submission that he suffers from persistent pain that is accident related.
17Finally, the applicant submits that his use of "a substantial list of medications for pain" after the accident establishes that he suffers from a chronic pain disorder. I find this argument unpersuasive. Of the 10 medications on the "substantial list of medications for pain" the applicant asks me to consider, only three are for the treatment of pain, two of which are muscle relaxants commonly available over the counter without a prescription. The remaining seven medications are for the treatment of medical conditions unrelated to the accident. The applicant has failed to establish the degree of dependency on pain medication typically associated with chronic pain disorders.
18For these reasons, the applicant has failed to establish that he suffers from chronic pain that warrants his removal from the Minor Injury Guideline.
Psychological impairment
19The applicant submits he suffers from a psychological impairment as a result of the accident, and that this warrants his removal from the Minor Injury Guideline. He relies on the Psychological Report of Dr. Andrew Shaul, a clinical psychologist, and Ms. Helen Ilios, a psychotherapist, to establish psychological impairment.
20For reasons I will explain, the report of Dr. Shaul and Ms. Ilios is of little evidentiary value. Although the report states that Ms. Ilios was supervised by Dr. Shaul, the report does not disclose the nature of the supervisory relationship. This is important because only Dr. Shaul, a psychologist, is qualified to make a psychological diagnosis. The section of the report addressing Ms. Ilios's qualifications states that she has been "conducting psychological assessments" for individuals involved in motor vehicle accidents since 2004. Again, psychotherapists are not licenced to assess and diagnose psychological conditions in Ontario. The lack of clarity about the authors' respective roles in assessing the applicant extends to the section of the report discussing diagnoses. The wording of the section alternates between "my opinion" and "our opinion", making it impossible to determine whether or the extent to which Dr. Shaul was exercising his clinical judgment in diagnosing the applicant with adjustment disorder and specific phobia.
21In addition to the intrinsic frailty of the psychological report, its findings are not corroborated in the clinical notes and records of Dr. Hanna. There is little to no mention of psychological concerns arising from the accident that would exceed the clinically associated sequelae of the applicant's minor injuries. Dr. Abounaja includes depression and anxiety in his list of the accident-related conditions but offers no analysis or discussion to support these conclusions. It is also unclear what experience or expertise Dr. Abounaja has in the assessment or treatment of psychological disorders.
22For these reasons, the applicant has not established a psychological impairment capable of removing him from the Minor Injury Guideline.
Pre-existing conditions
23Section 18(2) of the Schedule provides that the Minor Injury Guideline shall not apply if an insured person presents compelling evidence of a pre-existing medical condition, documented by a health practitioner before the accident, that will prevent him from achieving maximal recovery from his minor injuries if he is subject to the $3,500.00 policy limit.
24The applicant submits that his pre-existing conditions satisfy this requirement. I disagree. The applicant was involved in two accidents before the subject accident. His history of musculoskeletal pain is documented in the pre-accident medical records of Dr. Hanna, but these records do not constitute compelling evidence that the applicant's pre-existing pain will prevent him from achieving maximal recovery within the Minor Injury Guideline. Nor is there evidence that any of the applicant's other medical conditions will prevent his recovery within the Minor Injury Guideline.
25Section 18(2) of the Schedule sets a high bar. Compelling evidence is required. The applicant has fallen short of the standard required for removal from the Minor Injury Guideline under this provision.
CONCLUSION
26The applicant has not met his onus in establishing entitlement to treatment outside the Minor Injury Guideline. It is not necessary to consider whether the treatment plans in dispute are reasonable and necessary as a result of the accident. Since no benefits are owing, no interest is payable.
27The application is dismissed.
Released: April 22, 2021
Theresa McGee
Vice-Chair