Citation: Patel v. Security National Insurance Company, 2022 ONLAT 20-006985/AABS

Licence Appeal Tribunal File Number: 20-006985/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Mohd'Ismail Patel

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake, Vice Chair

APPEARANCES:

For the Applicant:

Wei Guo, Paralegal

For the Respondent:

Evan Argentino, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Mohd'Ismail Patel, was injured in an automobile accident on June 22, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Security National Insurance Company, the respondent.

2The respondent denied the applicant’s claims for certain medical benefits and determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to treatment within the MIG?

(ii) Is the applicant entitled to physiotherapy services recommended by North Toronto Rehab as follows:

(a) $3,585.63 in a treatment plan (OCF-18) dated July 23, 2018?

(b) $2,480.34 in an OCF-18 dated September 20, 2018?

(c) $1,982.15 in an OCF-18 dated October 27, 2018?

(d) $2,230.58 in an OCF-18 dated December 3, 2018?

(e) $1,892.15 in an OCF-18 dated February 2, 2019?

(iii) Is the applicant entitled to $1,944.80 for psychological services recommended by Dr. Zhu Hui Li as set out in an OCF-18 dated September 19, 2019?

(iv) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. The applicant is not entitled to an award.

ANALYSIS

The Minor Injury Guideline (MIG)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate:

(i) That their accident-related injuries do not fall within the definition of “minor injury;”

(ii) A pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG; or

(iii) If they provide evidence of a psychological impairment or chronic pain with a functional impairment.

8I find that the applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG on the basis of partial shoulder tears, a pre-existing condition, a psychological impairment, and/or chronic pain.

Partial Shoulder Tears

9The applicant submitted that his injuries are not “minor injuries” as defined in the Schedule because he sustained three separate tears in his shoulders as a result of the accident.

10In a January 18, 2021 letter to the applicant’s representative, Dr. Alykhan Jamal, the applicant’s family physician, confirmed that the applicant had partial tears of right and left supraspinatus and left subscapularis tendons which was confirmed by way of a bilateral ultrasound on August 11, 2018.³

11I agree with the respondent that partial tears do not remove the applicant from the MIG. The definition of “strain” in s. 3(1) of the Schedule includes partial tears which, in turn, fall under the Schedule’s definition of “minor injury.” As a result, the applicant is not removed from the MIG as a result of his accident-related shoulder injuries.

Pe-existing Condition

12It is well settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

13The applicant relied upon a January 20, 2021 letter from Dr. Jamal which stated that the applicant’s pre-existing condition of recurrent mechanical low back pain was “likely an aggravating factor in his recovery from the injuries sustained in the motor vehicle accident of Jun[e] 22, 2018.”⁴ This letter, however, is silent on whether the applicant would be prevented from achieving maximum medical recovery within the MIG limits which is the test to meet for removal from the MIG based on a pre-existing condition. As the applicant failed to submit any evidence that any of his pre-existing conditions would prevent him from achieving maximal recovery within the MIG, I find that the applicant is not removed from the MIG based on any pre-existing conditions.

Psychological Impairment

14Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.”

15The applicant relied upon a September 18, 2019 Pre-Screen Assessment Report⁵ and an August 30, 2020 Psychological Assessment Report,⁶ both by Dr. by Dr. Zhu-hui Li, psychologist, to support his position that he sustained a psychological impairment as a result of the accident. In the Pre-Screen Assessment Report, Dr. Li provisionally diagnosed the applicant with a somatic symptom disorder with predominant pain: moderate; specific phobia, situational: vehicular; and an adjustment disorder with mixed anxiety and depressed mood. In the full Psychological Assessment Report, Dr. Li diagnosed the applicant with a somatic symptom disorder with predominant pain: moderate; specific phobia, situational: vehicular; and an unspecified depressive disorder.⁷

16In contrast, the respondent relied upon the October 5, 2018 Psychological Insurer’s Examination (IE) Assessment Report by Dr. Dr. Terra Seon, psychologist,⁸ in which Dr. Seon opined that the applicant’s presentation was not of the magnitude to warrant a psychological diagnosis.⁹

17In weighing the two reports, I place greater weight upon Dr. Seon’s report and opinion than that of Dr. Li’s for the following reasons:

(i) Dr. Jamal completed a December 18, 2018 Ontario Ministry of Transportation Medical Report¹⁰ in which he endorsed that the applicant had no psychiatric disorders, no neurological diseases, and no evidence of an emotional disorder including instability, neurosis, or psychosis. This report, along with the lack of any psychological complaints in Dr. Jamal’s clinical notes and records (CNRs), supports Dr. Seon’s opinion and findings;

(ii) Dr. Li’s diagnosis of a specific phobia, situation: vehicular is conflicting with the applicant reporting that he resumed driving as a Delivery Truck Driver for his employment at regular hours as of January 14, 2019;¹¹

(iii) The applicant was referred to Dr. Li by his legal representative and there is no referral for any psychological or psychiatric treatment by Dr. Jamal; and

(iv) There is no evidence before me that the applicant was prescribed any medication for any psychological complaints post-accident.

18In placing greater weight on Dr. Seon’s report, I find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.

Chronic Pain

19For chronic pain to entitle someone to benefits beyond the MIG limits, there must be an effect on their functionality as a result of their ongoing pain.

20The respondent also submitted that the Tribunal has adopted the approach of assessing an applicant’s claim of chronic pain and the MIG as against the six criteria described in the American Medical Association Guides (AMA Guides),¹² which state that at least three of the following criteria must be met for a diagnosis:

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;

(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

21The applicant did not contest the AMA Guides criteria and, in fact, filed no reply submissions for the hearing.

22I find that the six criteria set out in the AMA Guides can provide helpful guidance as an interpretive tool for understanding how pain is affecting an individual’s functional capacity such that chronic pain may remove them from the MIG.

23It is clear that the applicant continued to report ongoing pain and was diagnosed with chronic mechanical low back pain by Dr. Jamal on November 1, 2018.¹³ Dr. Jamal’s CNRs, however, noted that the applicant’s lower back pain had resolved as of January 9, 2019¹⁴ which coincides with the applicant’s return to work on January 14, 2019 on light duties (but at regular hours). On June 10, 2019, the applicant had returned to full work duties with no restrictions¹⁵ to his “physically demanding job as a delivery truck driver.”¹⁶

24Aside from the applicant’s temporary withdrawal from work, there is no other evidence before me that would meet two of three other AMA Guides required criteria. For example, there is no evidence before me that the applicant used any prescription drugs as a result of the accident, that he had any excessive dependence on his health care provides, his spouse, or his family, or that there was any evidence of secondary physical deconditioning. The applicant also restored his pre-injury function in his employment. While the applicant did report a reduction in social activity and physical activities post-accident to several assessors, sufficient particulars were not provided regarding the amount of time spent pre-accident versus post-accident in such activities to allow me to determine if there had been a “withdrawal.” Finally, I did not accept Dr. Li’s opinion that the applicant suffered a psychological impairment as a result of the accident for the reasons set out above in paragraph [17].

25Further, in the October 5, 2018 Physician IE Assessment Report by Dr. Ahmad Belfon, family physician,¹⁷ the applicant reported that he was independent with respect to his personal care activities including showering, dressing, grooming, feeding himself, and toileting.¹⁸ He also reported that his can manage his financial affairs independently and is able to use his phone and computer as needed.¹⁹ This level of function is consistent with the applicant’s reports to Dr. Li as noted in the August 30, 2020 Psychological Assessment Report that his pain only prevented him from doing heavy lifting and some household related chores.²⁰

26Based on all of the evidence before me, and in consideration of the AMA Guides criteria, I find that the applicant has failed to prove on a balance of probabilities that his ongoing pain has affected his functionality such that his injuries are outside of the MIG as a result of chronic pain.

27The applicant submitted that only $1,300.00 has been paid out of the MIG limits for the applicant’s medical and rehabilitation benefits as of the date of his hearing submissions.²¹ While this submission was not refuted by the respondent, I do not have any evidence before me to substantiate the amount of benefits paid to date.

28In any event, I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans given my finding that the applicant sustained predominantly minor injuries as a result of the accident and is not removed from the MIG.

29Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred under the MIG are deemed reasonable and necessary. Therefore, the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to the Schedule.

Interest

30The applicant is entitled to interest in accordance with s. 51 of the Schedule for the remaining amount the MIG limits for the benefits and/or assessments set out in the disputed treatment plans once incurred.

Award

31In his hearing submissions, the applicant requested that he be granted an award under s. 10 of Regulation 664 for the respondent’s bad faith conduct in deliberately delaying the applicant’s treatment and contributing to his chronic condition.²² The respondent disputed this request partly because the issue of an award was not listed as an issue in dispute between the parties in the Tribunal’s Case Conference Report and Order in this matter.

32Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. Further, it is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

33Regardless of whether the issue of an award under Regulation 664 is properly before me, I find that there is no basis upon which to consider an award in this matter. The applicant only made a general submission to support his claim for an award which is insufficient to support a finding that the respondent’s actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. As a result, the applicant is not entitled to an award under Regulation 664.

CONCLUSION

34For the reasons outlined above, I find that the applicant:

(i) Has not met his onus of proving that his accident-related impairments warrant removal from the MIG;

(ii) Is entitled to the benefits set out in the disputed treatment plans up to the remaining amount of the MIG limits, plus interest in accordance with s. 51 of the Schedule, once incurred as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule; and

(iii) Is not entitled to an award.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Applicant’s Evidence Brief, tab 1.
4. 4Ibid.
5. 5Applicant’s Evidence Brief, tab 4.
6. 6Ibid.
7. 7Ibid. at page 7.
8. 8Written Submissions of the Respondent, tab 13.
9. 9Ibid. at page 9.
10. 10Written Submissions of the Respondent, tab 3.
11. 11Supra note 3.
12. 12American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
13. 13Supra note 3.
14. 14Ibid.
15. 15Supra note 10.
16. 16Letter from Dr. I. Kai, chiropractor, to “Whom it May Concern” dated January 26, 2021, Applicant’s Evidence Brief, tab 2.
17. 17Written Submissions of the Respondent, tab 5.
18. 18Ibid. at page 5.
19. 19Ibid.
20. 20Supra note 6 at page 3.
21. 21Applicant’s Written Submissions, page 8.
22. 22Ibid.