Release date: 06/09/2021
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:
Sawsan Polis
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Tavlin Kaur
APPEARANCES:
For the Applicant:
Sawsan Polis, Applicant
Ben Fotia, Counsel
For the Respondent:
Filomena Gazeas, Adjuster
Ramandeep Pandher, Counsel
Interpreter
Wardia Ochana, Assyrian (February 17, 2021)
Shmoony Jalou, Assyrian (February 16 and 17, 2021)
Court Reporter:
Jovana Velimirovic
HEARD by Videoconference:
February 16 and 17, 2021
OVERVIEW
1The applicant was involved in a motor vehicle accident on March 8, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2I have been asked to decide the following issues:
i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $252.00 per week from March 15, 2018 to date and ongoing?
ii. Is the applicant entitled to attendant care benefits (“ACB”) of $193.21 per month from August 30, 2018 to date and ongoing?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an IRB, ACB or interest.
PRELIMINARY ISSUE
Notice of Motion
4On February 11, 2021, the applicant filed a notice of motion in relation to the production of the adjuster’s log notes. It was submitted that the adjuster’s log notes were relevant to matters at issue in the LAT application.
5The motion was addressed at the hearing on February 16, 2021. Upon further reflection and discussion, the applicant withdrew the motion.
Issue i: Income Replacement Benefit
6Entitlement to IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)(1)(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(2) provides that the benefit is only payable after the first 104 weeks from the date of the accident if the person suffers a complete inability to engage in any employment or self-employment for which he/she is reasonably suited by education, training or experience.
7The applicant submitted that she is entitled to the IRB because she suffers from a substantial inability to complete the essential tasks of her pre-accident employment. Furthermore, it was submitted that she meets the post-104-week test for the IRB. The applicant maintains that she sustained a psychological impairment as a result of the accident as well as back pain. She relies on the clinical notes and records (“CNRs”) of her family physicians Dr. El-Sayegh, Dr. Dortaj, Dr. Taheri-Shalmani, as well as the assessment reports from Dr. Syed, Neuropsychologist, Dr. Aghamohseni, Psychologist, and Dr. DiCarlo, Psychologist.
8The respondent argued that the applicant has not proven that the accident caused the applicant’s impairments. In addition, there is no evidence to support that the applicant’s injuries worsened as a result of the accident. It relies on the reports of the insurer examination (“IE”) assessors Dr. Auguste and Dr. Syed.
9The applicant bears the onus of establishing on a balance of probabilities that she is entitled to the IRB as claimed.
Test for causation
10The leading case on causation is set out in the Divisional Court’s decision in Sabadash v. State Farm (“Sabadash”).1 This decision establishes that the test for determining causation in accident benefit cases is the “but for” test. The applicant must prove that “but for” the accident, she would not suffer the impairments which cause the complaints she puts forward as the basis for her claim for an IRB and ACB.
11Sabadash supports that an accident need not be the sole cause but rather a “necessary cause” of an individual’s impairment. For the following reasons, I find that the accident exacerbated the applicant’s psychological impairment.
12The respondent argued that causation was an issue in this case and that the “but for” test was not met. While I agree with the respondent that the accident did not cause the applicant’s back pain, I find that the applicant’s psychological impairments were exacerbated by the accident. The respondent’s own IE assessor, Dr. Syed, found that the accident significantly aggravated the applicant’s pre-existing psychological impairments. Dr. Syed opined that the subject accident contributed to the applicant’s current clinical presentation.
13Therefore, I find that causation has been established in this case. Consequently, I will now address whether the applicant suffers a substantial inability to complete the essential tasks of her employment as a result of any accident related impairment.
Background and analysis
14The following analysis will address the back pain and depression separately.
Back pain
15The applicant testified that she worked at a restaurant for 24 years. The essential tasks of her employment consisted of cutting vegetables, cleaning toilets, arranging the tables, and carrying items such as meat and shipments. She testified that ‘I did everything at the restaurant’.
16In June 2017, she sustained a workplace injury. She was carrying a heavy object and started to experience lower back pain. As a result, she stopped going to work. On July 25, 2017, the applicant reported to Dr. El-Sayegh that she was experiencing acute back pain for one month with numbness and tingling on her anterior thigh left lower limb. The applicant reported back pain to Dr. El-Sayegh during her subsequent visits on October 23, 2017, December 5, 2017, and December 21, 2017. During her December 21, 2017 visit, the applicant informed Dr. El-Sayegh that she was unable to work and requested a sick note.
17Dr. El-Sayegh provided the applicant with a letter dated January 5, 2018, which states the following:
Due to her pain and in addition to the new diagnosis with depression and anxiety disorder, she is not able to go back to her job as it is required [sic] a lot of physical activities. This is to confirm that the patient is unable to do any kind of job requires [sic] physical activities and standing for long hours until her medical condition shows a significant improvement.
18Dr. El-Sayegh’s note dated January 9, 2018 states that she reviewed the applicant’s MRI results and informed her that she has multilevel mild central spinal stenosis. The applicant informed the doctor that her back pain was improving but worsens with any activity. Dr. El-Sayegh referred the applicant to a chronic pain clinic for an assessment at the CPM Centre for Pain Management. This was the applicant’s last visit with Dr. El-Sayegh.
19The accident occurred on March 8, 2018. A day after the accident, the applicant met with Dr. Dortaj. She testified that she had changed her family doctor because she had moved. The CNRs from Dr. Dortaj states that “c/o: had a rear- ended [sic] car accident yesterday, in passenger seat and had no problem after accident. No LOC, pain or bleeding, no brain injury. Since this morning, has been feeling pain in front and back chest, shoulders and neck. Pain not severe but irritating.” Dr. Dortaj referred her for chiropractic treatment and massage therapy. She was given an over the counter pain medication prescription.
20The applicant reported back pain to Dr. Dortaj when she met with him on July 20, 2018, September 7, 2018 and October 3, 2018. He advised her to start physiotherapy and prescribed her Diclofenac-Misoprostol and Cyclobenzaprine. He also referred her for an MRI.
21The MRI dated November 4, 2018 found that there was L5-S1 central disc herniation (protrusion) without evidence of nerve root impingement as well as additional degenerative changes in the lumbar spine. On December 17, 2018, Dr. Dortaj discussed MRI results with the applicant. She informed him that she “has had years of low back pain.” Under the impression section, he noted “lumbar disc disease?” He referred her to see Dr. D.F. Wilson, who is a spinal surgeon. It is unclear as to whether she met with Dr. Wilson as there is no report on the record. It appears that this was the last visit with Dr. Dortaj as there are no records from December 18, 2018 and onwards.
22Approximately nine months later, she changed family doctors and started seeing Dr. Taheri-Shalmani as of September 13, 2019. Dr. Taheri-Shalmani referred the applicant to see Dr. Alex Jahangirvand, Neurologist. On November 28, 2019, the applicant met with Dr. Jahangirvand and reported that she recalled lifting a heavy object at work approximately three years ago, which aggravated her lower back. The motor vehicle accident is not mentioned in this report. Dr. Jahangirvand opined that:
There is electrophysiologic evidence for mild chronic L5 radiculopathy, without ongoing (active) or denervating features. There is no evidence for lumbosacral plexopathy or lower limb mononeuropathy. On examination, motor and sensory function appears to be within normal limits. Muscle stretch reflexes are normal without myelopathy. There is tenderness to palpitation of the lumbal paraspinal muscles. Provocative testing for bilateral hip osteoarthritis is positive. Sawsan has predominantly musculoskeletal low back pain related to degenerative spine changes, injury to local spinal structures, which include the vertebral column (facet joints), ligaments, and surrounding muscles and soft tissues. In patients with musculoskeletal low back pain, repetitive motions or overuse of the paraspinal muscles, especially those that are deconditioned or inactive at baseline, may cause pain and spasms. Some of the discomfort appears to be also related to possible bilateral hip osteoarthritis.
23The applicant testified that prior to the accident, her back pain was improving, and she planned to return to work. Further, the day before the accident, she was doing everything by herself with little pain. However, after the accident, she could no longer do anything and required assistance from her family members in doing her nails, cooking and using the bathroom because her pain was more severe.
24In support of its case, the respondent relied on the findings of the “IE assessor, Dr. Auguste, Orthopaedic Surgeon. Dr. Auguste assessed the applicant on September 13, 2018.
25Dr. Auguste testified that “on physical examination, there were no substantive impairments neurological or osteo. She demonstrated full functional strength. There were no additional impairments of an osteo/neurological nature. I couldn’t find anything that would be linked to the accident or that would interfere with her adls.”
26The doctor also reviewed the diagnostic imaging before and after the accident and stated that “there were no acute changes as a result of the accident. There was no inflammation, effusion, disc bulging that was any different from the pre-accident imaging.”
27Dr. Auguste testified that:
The acute inflammatory response is important because when someone has acute pain due to trauma, they have swelling, warmth over skin, mass or edema in underlying tissue. Shape is not the same. The patient has more pain. This suggests an underlying inflammatory response. There is something that has caused inflammation in the area. In an exacerbation of a pre-existing condition, there would be an acute and chronic finding. There might be a postural problem, or slightly hunched, difficulty walking. And then we see acute response like tension, swelling, exaggerated response.
28When asked if acute trauma would have shown up, she stated “Yes we would have seen that. These can last 9 to 12 months like edema, effusion, fracture, narrowing, disc bulging.” She testified that there was no acute inflammatory response present two months after the accident.
29Dr. Auguste found that the applicant did not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a direct result of the accident. She did not find any impairments that she could causally link to the subject accident.
30Based on the evidence, I find that the applicant has not met her onus for entitlement to the IRB on the basis of her back pain.
31Firstly, I did not find the applicant’s testimony to be credible. Less than three months prior to the accident, Dr. El-Sayegh opined that the applicant could not work and that she would require significant improvement before she was able to return to work. The applicant’s testimony suggests that there was significant improvement for her to be doing everything with ‘little pain’. However, the applicant has not provided any evidence that shows that her lower back pain had resolved, and that she was capable of returning to work prior to the accident.
32A disability certificate (OCF-3) dated March 22, 2018 notes that the applicant was not working at the time of the accident and “patient is on STD for her back pain.” Furthermore, part 8 of the OCF-3 noted that the applicant had a pre-existing condition that affected her ability to carry out her activities of daily living.
33Based on the evidence, it appears that the back pain was still an issue at the time of the accident. If the applicant’s pain had resolved prior to the accident, it begs the question why did she not return to work? Moreover, why was she still on short-term disability at the time of the accident as noted in the OCF-3? For these reasons, I am not persuaded by the applicant’s testimony.
34Secondly, the diagnostic imaging that was submitted into evidence does not support that the accident exacerbated her pre-existing condition. The x-ray results from June 19, 2017 identified some changes, but no acute abnormality. The MRI conducted on December 20, 2017 shows that the applicant has multilevel mild central spinal stenosis.
35After the accident, an x-ray of the lumbar spine was conducted on May 26, 2018. The MRI concluded that there were degenerative changes within the lumbar spine and lumbar facets.
36I note that the results of the MRI dated November 4, 2018 found that there was L5-S1 central disc herniation (protrusion) without evidence of nerve root impingement. However, the applicant did not submit any expert report or opinion which supported that the disc herniation was caused by the accident. Furthermore, the applicant did not submit any evidence to support that the disc herniation resulted in a substantial inability for her to complete the essential tasks of her employment. Therefore, I have assigned this evidence little weight.
37Thirdly, I find Dr. Auguste’s report and testimony persuasive because she conducted a series of tests, which showed that there was no active inflammatory response and no signs of exacerbation of the applicant’s pre-existing condition. The applicant demonstrated full functional strength. From a medical perspective, Dr. Auguste could not find anything that could be causally linked to the accident. The applicant did not submit any medical evidence or expert opinion to refute Dr. Auguste’s findings.
38Fourthly, there is a gap in her visits between Dr. Dortaj and Dr. Taheri-Shalmani. From December 18, 2018 to September 12, 2019, the applicant did not see Dr. Dortaj. She testified that Dr. Dortaj would not see her right away and that she needed to schedule an appointment. However, if her pain was an ongoing issue and she required treatment or further investigation, it begs the question why she did not schedule an appointment to see Dr. Dortaj during this time period? I would have expected that she would have done so if she was having issues due to her conditions. I am not persuaded by her explanation.
39Lastly, the medical report from Dr. Jahangirvand does not mention the accident. Dr. Jahangirvand’s findings suggest that her lower back pain is related to degenerative spine changes, which is consistent with the diagnostic imaging. There is nothing in this report that addresses how the accident contributed to her ongoing back impairment.
40For the reasons stated above, I find that the applicant has not satisfied her onus to establish that she suffered a substantial inability to perform the essential tasks of her employment for the period of March 15, 2018 to date and ongoing.
Depression
41The applicant submitted that she was recovering from her pre-existing depression and that the impairments sustained in the accident prevented her from working.
42The respondent submitted that the applicant’s psychological condition did not change following the accident and improved as her family doctor noted that her depression was stable, and that her mood was better, post-accident.
43I find that the applicant did not suffer a substantial inability to perform the essential tasks of her employment as a result of any accident-related psychological impairment.
44The applicant relied on a psychological assessment conducted by Dr. Aghamohseni and Dr. DiCarlo on September 7, 2018. The report stated that “prior to the accident, there is no evidence to suggest that Ms. Polis suffered any ongoing pain issues, psychological, or medical problems that interfered with her ability to engage in a normal life. Her symptomatology presented following the subject accident.”
45The assessors diagnosed the applicant with Major Depressive Disorder (Single episode in the severe range with anxious distress), Somatic Symptom Disorder (With predominant pain in the persistent range at severe levels) and Specific Phobia (Situational type-vehicular). The assessors found that the applicant was in need of psychotherapeutic intervention, which would improve her psychological functioning. They recommended twelve weekly and/or bi-weekly psychotherapy sessions.
46The respondent is relying on a psychological assessment report completed by Dr. Syed dated November 21, 2018. Dr. Syed diagnosed the applicant with Adjustment Disorder with Anxiety and Pre-Existing history of Pain and Depression as per medical records. In her report, Dr. Syed stated the following:
Overall, Ms. Polis was psychologically compromised and fragile at the time of the accident and the additional stressors of this accident taxed her already depleted psychological resources and limited coping mechanisms, significantly aggravating her pre-existing psychological impairments. As such, her ability to recover from the psychological impairments sustained in this accident is deemed to be guarded. Lastly the etiology of her current condition cannot be delineated given the complexity of the situation, however, it is with a high degree of psychological certainty that the subject accident has contributed to her current clinical presentation.
47Although Dr. Syed found that the accident aggravated the applicant’s pre-existing psychological impairments, she found that “from a psychological perspective she is able to resume employment and is not considered to be suffering from a substantial inability to resume employment as a result of the subject accident.”
48I prefer Dr. Syed’s report over Dr. Aghamohseni and Dr. DiCarlo’s report. Dr. Syed reviewed the applicant’s medical history pre- and post-accident. Dr. Aghamohseni and Dr. DiCarlo did not review the applicant’s medical records. Rather, they relied on the applicant’s subjective statements. I do not find their findings to be consistent with the evidentiary record. As such, I am assigning less weight to their assessment.
49I find Dr. Syed’s findings to be more consistent with the CNRs. Prior to the accident, the applicant had a history of depression and anxiety. On November 6, 2017, Dr. El-Sayegh noted that the applicant appeared to look depressed and prescribed her Cipralex 10mg. During her appointment on December 5, 2017, the applicant reported that she felt a slight improvement in her depression and was advised to continue taking Cipralex. She was also advised that if there was no improvement, then she would be referred to see a psychiatrist.
50She attended the doctor’s office for a follow up appointment on December 21, 2017 and reported that she feels depressed. A few weeks later, on January 10, 2018, she reported that her depression was better with Cipralex. She was advised to continue with the Cipralex and was given a repeat for Cipralex 10mg.
51The applicant started seeing Dr. Dortaj. There is a note from July 20, 2018, which states “she is on depression and anxiety [sic] and asks for [sic] renew them”. After July 20, 2018, the applicant met with Dr. Dortaj on July 25, 2018, September 7, 2018, October 3, 2018 and December 17, 2018. There are no further notes regarding her psychological condition documented during these visits.
52On September 13, 2019, the applicant met with Dr. Taheri-Shalmani. The applicant informed the doctor that she was on anti-depressant medication. On October 18, 2019, there is a note that states “no depressed mood”. Dr. Taheri-Shalmani noted “depression (stable)”.
53There is nothing in the CNRs after the accident documenting ongoing psychological complaints relating to the accident. There is also no evidence in the CNRs that document a deterioration of her depression and anxiety after the accident. Rather, her condition improved based on Dr. Taheri-Shalmani’s notes.
54If the applicant was experiencing psychological symptoms as a result of the accident which prevented her from working, why was this not raised during her appointments with Dr. Dortaj and Dr. Taheri-Shalmani? If this was an ongoing issue, I would have expected the applicant to have reported this to her doctors.
55Moreover, the applicant has not undergone any psychological/psychiatric treatment post-accident. Dr. Syed noted that the applicant did not appear to be motivated to undergo psychological treatment. At the hearing, the applicant testified that she was not a “crazy woman” and that she was taking her medication, so she did not go to see a psychologist. If her psychological impairments were severe to the degree that they interfered with her ability to return to work, it begs the question why she did not seek treatment?
56I acknowledge that the accident may have aggravated her pre-existing psychological impairments. However, I find that she did not suffer from a substantial inability to resume her pre-accident employment as a result of any accident-related psychological impairment.
57For all of the above-noted reasons, I find that the applicant has not met her onus in establishing on a balance of probabilities that she is entitled to the IRB as a result of any accident-related physical or psychological impairment.
Post-104 weeks IRB
58The test for entitlement to post-104 weeks IRB is set out in section 6(2)(b) of the Schedule, which states: “The insurer is not required to pay an income replacement benefit after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.” This is referred to as the “complete inability” test.
59The “complete inability” test for a post-104 IRB is a higher bar than the “substantial inability test” for a pre-104 IRB. Since the post-104 IRB test is more stringent than the pre-104 IRB test, it logically follows if the Applicant is not entitled to a pre-104 IRB, she cannot be entitled to a post-104 IRB unless there was a significant deterioration in her condition. The onus is on the Applicant to prove she is entitled to a post-104 IRB.
60In relation to her back pain, the applicant has submitted a report dated March 18, 2020 from Dr. Richard Tse, Rheumatologist. In his report, he noted that the applicant has been complaining of lower back pain since the early 2000s. During the examination, he found that she was ambulating with a smooth gait. He noted that there was tenderness in the paralumbar musculature bilaterally. He diagnosed her with chronic back pain and opined that “the back pain by history has features of both mechanical and inflammatory back pain.” There is no mention made of the accident and how that contributed to her ongoing pain.
61Moreover, Dr. Taheri-Shalmani noted that the patient’s back pain was improving with chiropractic treatment.
62As for her psychological impairments, the applicant’s depression was stable as per the CNRs of Dr. Taheri-Shalmani. There was no deterioration in her psychological health post-104 weeks.
63As such, I find that the applicant has not provided evidence which supports that she meets the post-104 weeks test. Therefore, she is not entitled to post-104 weeks IRB.
Issue ii: Attendant Care Benefit
64As per section 19 of the Schedule, the applicant would be entitled to an ACB up to a maximum of $3,000.00 per month for the first 104 weeks after the accident if she can establish that the attendant care services are reasonable and necessary, as a result of the accident. The applicant submits that she is entitled to an ACB in the amount of $193.21 per month. The applicant bears the onus of establishing on a balance of probabilities that she is entitled to an ACB. Based on the evidence before me, I find that the applicant has not met her onus.
65The applicant is relying on the Assessment of Attendant Care Needs (Form 1) completed by Ms. Yana Granovsky, who is a registered nurse at Health-Pro Wellness. She recommended the following:
Feeding: provide assistance, either in whole or in part, in preparing, serving, and feeding meals for 20 mins, 7 days a week = 140 mins per week.
Grooming: toenails (clean and trim for 10 mins) once a week = 10 minutes per week.
Hygiene: bathroom (clean tub/shower/sink/toilet after the applicant’s use) 20 mins twice a week = 40 mins per week.
Bedroom: change applicant’s bedding, make bed, clean bedroom, including Hoyer lifts, overhead bars, bedside table 30 mins, once a week = 30 mins per week.
66Although the Form 1 outlines the applicant’s attendant care needs, Ms. Granovsky has not provided an explanation as to why she has recommended this level of care. There is nothing in the records to support how she made this determination. In my view, the Form 1 on its own is not persuasive evidence in support of an ACB.
67The applicant testified that her family members assisted her with cleaning, serving/feeding and grooming after the accident. This was also reported to the assessors. However, the applicant has not directed me to evidence that supports functional limitations that would warrant the need for an ACB. The medical records from her family physicians do not document that the applicant required assistance with cleaning, serving/feeding or grooming after the subject accident. Aside from the Form 1 itself, there is no other evidence that supports that she needs the ACB.
68The respondent relies on its IE assessment of Dr. Auguste in support of its position. Dr. Auguste opined that the applicant’s current symptoms were likely related to her pre-existing condition. Due to the lack of compelling clinical evidence of any objective measure of impairment or clinical testing, she could not recommend any need for attendant care related to the subject accident.
69Dr. Auguste testified that she did not find anything that supported any substantive impairment that would prevent the applicant from performing foot care, meal preparation or housekeeping. She stated that “even though she was on some sort of STD before the MVA, I couldn’t find any impairments of a physical nature from an orthopaedic perspective which I could have validated. The applicant could bend forward, had range of motion, squat, normal gait, heel toe walk. There was nothing to suggest that she could not clean or do her bed.”
70Robert Campos, Occupational Therapist, conducted an occupational therapy in-home assessment on September 17, 2018. He found that based on objective measures, informal and formal observation of functional abilities, mobility, range of motion, strength as well as cognitive and psychosocial functioning, and documentation provided for review, the applicant is able to perform her self-care activities independently, while using principles of energy conservation techniques, proper body mechanics, and task simplification. It was his opinion that the applicant did not require an aide or assistant to complete her personal care duties.
71I prefer Dr. Auguste’s and Mr. Campos’ findings over the applicant’s evidence because the objective findings of the assessors are consistent, and their testing/observations show that the applicant is able to perform her self-care needs.
72Based on the above, I find that the applicant has not persuaded me on a balance of probabilities that she has functional limitations that would warrant an ACB. As a result, I find that the applicant’s claim for an ACB is not reasonable and necessary.
CONCLUSION
73For the reasons outlined above, I find that:
i. The applicant is not entitled to an IRB in the amount of $252.00 per week from March 15, 2018 to date and ongoing.
ii. The applicant is not entitled to an ACB in the amount of $193.21 per month from August 30, 2018 to date and ongoing.
iii. As the benefits have been denied, interest is not payable.
Date of Issue: June 9, 2021
Tavlin Kaur, Adjudicator
Footnotes
- Sabadash v. State Farm et al. 2019 ONSC 1121, 2019 ONSC 1121