Citation: Alissa v. The Co-operators, 2022 ONLAT 20-009394/AABS

Licence Appeal Tribunal File Number: 20-009394/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:

Abdulrahim Alissa

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Jeffrey Shapiro

APPEARANCES:

For the Applicant:

Mary Tran, Paralegal¹

For the Respondent:

Laura Emmett, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Abdulrahim Alissa (“the applicant”) was involved in an automobile accident on December 13, 2018. He sought benefits from The Co-operators (“the respondent”) pursuant to the Schedule,² which the respondent approved within the Minor Injury Guideline (“MIG”). When the applicant sought further treatment and a non-earner benefit (“NEB”), the respondent denied those requests. The applicant then submitted an application to this Tribunal to dispute the denials.

ISSUES

2The issues I must decide are:

1. Is the applicant entitled to a non-earner benefit of $185.00 per week from January 10, 2019 to December 13, 2020?

2. 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?

3. Is the applicant entitled to $1,995.00 for a psychological assessment recommended by Harinder Mrahar in a treatment plan/OCF-18 (“plan”) submitted on April 20, 2019?

4. Is the applicant entitled to $2,925.60 for chiropractic treatment recommended by Dustin Yen in a plan submitted on May 13, 2019?

5. Is the applicant entitled to $3,963.64 for psychological services recommended by Harinder Mrahar in a plan submitted on July 19, 2019?

6. Is the applicant entitled to $2,500.64 for chiropractic treatment recommended by Dan Shlepakov in a plan submitted on September 21, 2019?

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

RESULT

3The applicant has not established that his accident-related impairments are not “minor” as defined by the Schedule, and thus, his injuries are governed by the MIG and the $3,500 treatment limit. As the $3,500 limit has been exhausted, the applicant is not entitled to any of the treatment plans or interest.

BACKGROUND

4The applicant was the driver of a sedan which was rear-ended in a way that caused it to spin and incur a second impact. EMS arrived on the scene, but he was not examined or taken to the hospital. About a month later, on January 14, 2019, he first sought treatment with a physiotherapist at Scarborough Medical Centre (“SMC”), and then saw his family doctor, Dr. Marrat, the following day. The applicant attended at SMC over the next year (January 14, 2019 to February 2, 2020), where he attended approximately 49 visits, with multiple modalities, which may have included some psychological counseling. He also underwent a few assessments – some at his request and some by the respondent.

5The applicant alleges that he suffered a complete inability to carry on a normal life and disputes the characterization of his injuries as being predominantly minor and subject to the MIG. He submits he suffers from chronic pain primarily in his chest wall and also psychological injuries, which are not included in the MIG.

ANALYSIS

Has the applicant established that he is entitled to a non-earner benefit?

6No. Sections 12(1) of the Schedule provides that an insurer shall pay a NEB of $185 a week to an insured person that suffers “a complete inability to carry on a normal life” as a result of and within 104 weeks after the accident, while s. 3(7)(a) defines “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The guiding principles for NEBs are discussed in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which focuses on a comparison of an applicant’s pre-and post-accident activities. The insured bears the onus to show entitlement to the NEB, and all other benefits below, on a balance of probabilities.

7The respondent submits the timing prevents entitlement to the NEB. I agree. Section 36(3)(c) provides that an applicant is not entitled to a NEB for any period prior to submitting a Disability Certificate. In this case, the first Disability Certificate opining that he suffered a complete inability was submitted in January 2021, more than 104 weeks post-accident – i.e., after the eligibility period.

8Beyond the technical issue, the submissions do not establish a complete inability. No medical opinion supports it during the first 104 weeks, nor has a meaningful pre-and post-accident picture of his activities been provided. In fact, it’s unclear what his “ordinary activities” are and how they were affected by the accident.

9The applicant’s limited submissions on the NEB appears to flow from underlying medical evidence only providing a few limited and vague references to child and household duties and an employment apprenticeship being affected by the accident. At most, such might help establish a limited effect on his life, but that is well short of a complete inability as defined in the Schedule. Those references are also not persuasive as they are contradicted by other evidence. For instance, on June 11, 2019, the applicant advised Dr. Zakzanis, his psychological assessor, that he had not been able to continue with a flooring installation apprenticeship since the accident. Yet, a few weeks earlier (May 15, 2019) his family doctor records knee pain from doing some flooring,³ and few weeks earlier (April 16, 2019), a psychological pre-screening report similarly records him advising that he “finds it difficult to complete some physically demanding tasks at work.”⁴

Has the applicant established his injuries are not “minor injuries”?

10No. Section 18(1) of the Schedule provides that medical benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a “minor injury”. Section 3(1) defines a “minor injury” 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.” The Tribunal has held that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

Does the applicant have a psychological impairment?

11No. The applicant alleges that he suffers an “Adjustment Disorder with Mixed Anxiety and Depressed Mood; Specific Phobia, Situational – Vehicle”, as diagnosed by Dr. Zakzanis in his July 2, 2019 Report. He also points to corroborating evidence of (1) Dr. Mrahar’s April 16, 2019 Psychological Pre-Screening Report that provides a “provisional” of diagnosis of Post Traumatic Stress Disorder, Moderate Depressive Episode, and Single (Isolated) Phobia; (2) his family doctor’s notes which record complaints of depression; and (3) statements made to the respondent’s psychological IE assessor. He submits the evidence is consistent and the IE is of little value as it only occurred on March 24, 2021, which is two years after the accident.

12I find some appeal to this argument, as the evidence could be interpreted as follows. On March 20, 2019, the applicant reported to his family doctor a depressed mood over the last few months due to the accident and two other factors, being a Syrian war zone refugee and a son with autism. The applicant continued to make similar complaints to his doctor on various occasions. While the psychological symptoms were not overwhelming, nevertheless Dr. Zakzanis’s July 2, 2019 report confirmed a formal diagnosis “but for” the accident. In that regard, to his credit, Dr. Zakzanis was forthright that the applicant’s answers on one of the tests were atypical and could not be reliably interpreted. Still, Dr. Zakzanis felt the examination was valid, with no evidence of feigning. The applicant then received some counseling at SMC. Finally, by the time that Dr. Mor’s IE took place in March of 2021, the applicant had recovered, advising that “I feel good” and that he had no need or interest in psychological treatment. Thus, Drs. Zakzanis’s and Mor’s reports just deal with different time periods.

13While I find that approach is possible, ultimately, the preponderance of the evidence leads me to discount it. First, the timing weakens the complaints. The applicant did not receive or seek any treatment for a month after the accident and then only advised his family doctor of the accident the day after attending SMC. Similarly, his psychological complaints made to his family doctor on March 20, 2019 were again made a day after he received a psychological pre-screen at SMC on March 19, 2019. (The pre-screen report was dated April 16, 2019). The applicant saw his family doctor several times between the accident and the March 20, 2019 visit without making such psychological complaints.

14Second, I discount Dr. Zakzanis’ accident-related diagnosis because of the unreliability of the information provided to him, such as the issue of the applicant not working since the accident mentioned above, rather than his methodology. There are several other examples, such as the applicant denying experiencing any other significant life events to Dr. Zakzanis, yet his complaints to his family doctor were that the Syrian war and his autistic son were relevant factors. I do note that while Dr. Mor was aware of some of the difficult circumstances the applicant experienced because of the Syrian war but still opined that the war was not a factor, she was not given a complete picture. He advised having no issues since leaving Syria, which contradicts what he told the family doctor.

15Similarly, while the applicant did not receive any medical attention until attending at SMC a month after the accident, he advised Dr. Mor that a friend took him to Scarborough General Hospital, where he was examined and prescribed medication. This is clearly not accurate. Dr. Mor mentions that he could not elaborate further on what happened at the hospital.⁵

16I also find two additional factors cast further doubt on the accident-related diagnosis, but which carry less weight. First, Dr. Mor concluded that the applicant does not have an accident-related diagnosis, based on factors such as formal testing and the applicant’s own self reporting mentioned above. I accept her opinion. However, because of the timing, such finding carries more weight regarding his then current condition, but less weight in establishing his condition in the year following the accident. Second, the applicant’s submissions allege that he had 15 plus sessions of psychological counseling through SMC and an invoice was provided appearing to show sessions of 1.5 hours each. However, Dr. Mor records that he advised attending “…15 and 20 brief psychological sessions which lasted for approximately 15 minutes” at SMC. (Emphasis added). The respondent also submits that in fact none of SMC’s records substantiate that any psychological counseling was rendered. I agree. I find that important because given that Dr. Mor found he does not have accident-related diagnosis, it tends to show that the applicant either never had such condition, or it was so minor that it resolved on its own or with the most minimal intervention.

17All told, I find the applicant may have had an accident-related adjustment disorder consistent with Dr. Zakzanis’s report, but given the issues mentioned above, the applicant has not established it on a balance of probabilities.

Has the applicant established accident-related chronic pain?

18No. The parties generally agree that the applicant’s physical injuries are soft-tissue and thus fall within the definition of “minor injuries”. They dispute, however, whether he suffers chronic pain, and if so, if it is sufficient to remove him from the MIG. As mentioned above, the Tribunal has consistently held that ongoing pain alone does not take an applicant out of the MIG. Rather, the ongoing pain must be continuous or of such severity that it causes distress and it must be accompanied by functional impairment or disability.⁶ I agree with that principle.

19In this case, the evidence points to the applicant’s soft-tissue injuries having resolved within a year of the accident, except for some ongoing chest wall pain and occasional shoulder pain. Those pains, however, are better described as a degree of pain that is chronic, but not chronic pain as discussed in the case law.⁷

20For instance, on August 14, 2019, the applicant saw Dr. Gharghi, a neurologist, who noted hand tremor issues for the past four or five years (and thus pre-dating the accident) and a generally unremarkable physical examination. The applicant asked about “some pain” in the shoulder and clavicle area, which the doctor believed to be mainly musculoskeletal and not neurological. On July 2, 2020, at the request of his family doctor, Dr. Malik at The Centre for Pain Management examined the applicant. Dr. Malik noted that the pain has no effect on his activities of daily living, it is intermittent and generally not present during the day, with it only increasing when sleeping. Dr. Malik opined he should continue his daily activities, although he “could benefit” from physical therapy. The diagnosis is based on subjective reporting. The same day, he was examined by Dr. Pflug, a rheumatologist, for chest wall pain that was radiating to the left shoulder. In his report dated July 2, 2020, Dr. Pflug opined that the applicant was overweight and recommended that he try to lose weight. The diagnosis was chest wall pain. The applicant has not made any accident-related pain complaints to his family doctor since June 2020.

21The applicant was also examined by Dr. Dharamshi, a general practitioner, for an IE assessment. His August 27, 2021 report records the only remaining complaint to be left-sided upper chest pain. While his report responded to the questions asked and terminology used in those questions (i.e., injury vs. impairment), I found that the doctor was forthright in his answers. Read together, I understand he opines that the applicant suffered soft-tissue injuries from the accident, and as of the assessment, still “demonstrated signs of persistent chest wall pain, secondary to contusion or strain” (i.e., the lingering chest wall pain is from and “but-for” the accident), but that pain does not rise to the level of an “impairment.” I agree.

22I also note that Dr. Shlepakov at SMC recorded an extensive list of diagnoses, some of which are beyond his scope of practice and which were inconsistent with the family doctor’s notes despite they are a day apart. Accordingly, I give little weight to Dr. Shlepakov’s diagnosis.

23Thus, in conclusion regarding the applicant’s physical injuries, the evidence is clear that they are soft-tissue injuries and within the MIG. While I accept that the applicant has some lingering chest-wall pain mostly experienced at night, and which might even benefit from physical therapy, it is overall fairly minor and does not appear to have affected him in any significant way.

24Given that I have found that the applicant’s injures are defined as minor under the Schedule and thus subject to the $3,500 limit on treatment, and the parties have advised that such limit has been exhausted, I do not need to address the remaining treatment plans, as moot.

Conclusion

25While there is some evidence supporting the applicant having experienced a diagnosable psychological condition as a result of the accident, ultimately the applicant is close to, but has not proven, it on a balance of probabilities, for the reasons listed above including the unreliability of self-reporting. Similarly, while the applicant’s reports of chest-wall pain are more consistent, they are characterized as limited lingering pain, rather then the level of chronic pain to remove the applicant from the MIG.

ORDER

26The applicant has not established that his accident-related impairments are not “minor” as defined by the Schedule, and thus, his injuries are governed by the MIG. Likewise, the applicant has not established his entitlement to any of the treatment plans or interest. The application is dismissed.

Released: November 7, 2022

__________________________

Jeffrey Shapiro

Vice-Chair

Footnotes

1. 1Submission were filed by Ms. Tran. Subsequently, Sevda Guliyeva, has entered her appearance.
2. 2Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10.
3. 3See Dr. Zakzanis’s July 2, 2019 Report (Assessment Date June 11, 2019) at pages 5 and 9 (Applicant Tab 13) and Dr. Marrat records (Applicant Tab 9(b)).
4. 4Applicant Tab 8 – See April 16, 2019 Psychological Rehabilitation Pre-Screening Report.
5. 5Applicant Tab 14, p. 11-12.
6. 6Sidhu v TD General Ins. Co., 2020 CanLII 94816 (ON LAT), at para 16 (Adjudicator Hines); 16-000438 v The Personal Ins. Co, 2017 CanLII 59515 (ON LAT)(Adjudicator Neilson), at para 27.
7. 7Sidhu, 2020 CanLII 94816 (ON LAT), at para 16; Carreiro v Wawanesa Ins., 2022 CanLII 8662 (ON LAT), at para. 12 & 20; Tyndale v Primmum Ins. Co., 2022 CanLII 1141 (ON LAT), at para. 2 & 23.