Citation and Parties
Licence Appeal Tribunal File Number: 20-000954/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:
Nejdet Semih
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Jane Poproski, Counsel
For the Respondent:
Amanda Faulkner, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1The applicant was injured in an automobile accident on January 25, 2018, and sought various benefits, including a Non-Earner Benefit (“NEB”), from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). The applicant was denied the treatment on the basis that he sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (MIG), and that he did not suffer a complete inability to carry on a normal life as a result of the accident. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
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 an NEB of $185.00 per week from March 1, 2018 to January 25, 2020?
c. Is the applicant entitled to $2,200.00 for a psychological assessment recommended by Psychology Health Solutions in a treatment plan (OCF-18) dated December 17, 2018 and denied on July 2, 2019?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has demonstrated that removal from the MIG is warranted. The OCF-18 for a psychological assessment is reasonable and necessary and payable once incurred. Interest applies on any overdue benefits.
4The applicant is not entitled to payment of a NEB for the period in dispute, as he has not demonstrated a complete inability to carry on a normal life.
ANALYSIS
Applicability of the MIG
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
6The applicant submits that he should be removed from the MIG on four grounds: his diagnosis of bursitis in the left shoulder, his pre-existing chronic pain condition for which he has purportedly been receiving ODSP since 1998, his current chronic pain as a result of the accident and his psychological impairments. He relies on his affidavit, his OCF-3 Disability Certificate, an ultrasound, the report of Dr. Dessouki, physiatrist, the findings of a psychological screening interview from Psychology Health Solutions and various clinical notes and treatment records.
7In response, Aviva points to the applicant’s OCF-3 which reveals impairments that fall within the definition of a minor injury, submits that the report of Dr. Dessouki does not actually diagnose chronic pain and that a partial rotator cuff tear and bursitis fall within the definition of minor injuries. It relies on various s. 44 Insurer’s Examinations (“IEs”) to support its position.
8I agree with Aviva that the applicant’s physical impairments fall within the definition of a minor injury under s. 3, as they are identified in the OCF-3 as sprain and strain-type injuries and headaches. While the applicant points to his May 30, 2018 ultrasound results, I agree with Aviva that the Tribunal has consistently found that a partial thickness tear does not warrant removal from the MIG because a full tear is required. Further, inflammation conditions such as bursitis and tendinosis fall within the MIG as accident-related sequelae.
9The applicant submits that his pre-existing condition of chronic pain, for which he has received disability payments since a 1998 accident, constitutes a condition under s. 18(2) that warrants removal from the MIG. Section 18(2) requires that there be compelling evidence of a pre-existing condition and an opinion from a medical practitioner that the condition will prevent maximal medical recovery if the applicant is confined to the MIG. The applicant directed the Tribunal to his affidavit, a medical record from 2012, his MIG discharge form and the reports of Dr. Dessouki and Dr. Kopyto.
10The applicant did not provide evidence of his disability payments despite indicating that he has been attempting to obtain his file for over a year. While he stated that he would provide further evidence to support his ODSP claim once it is received, the Tribunal was not provided with additional information to support his claims. In any event, the report of Dr. Dessouki indicates that the applicant did not report any previous accidents or injuries. Similarly, part 8 of the OCF-3 in evidence states that the applicant did not have any pre-existing diseases, conditions or injuries that would affect his abilities, which is also confirmed in part 6 of the OCF-23 in evidence. While the applicant did report the details of his previous accident to Dr. Kopyto, who acknowledged the applicant’s history of chronic low back pain, Dr. Kopyto determined that there was no compelling evidence that his condition would prevent his recovery under the MIG. This was also the finding of Dr. Farber in his s. 44 report.
11Where s. 18(2) requires compelling evidence of a pre-existing condition and a medical opinion that the pre-existing impairment would prevent maximal medical recovery under the MIG, I cannot find, on the evidence offered by the applicant, that he has met his burden. Even if I accept the applicant’s self-reporting as compelling evidence and take the applicant at his word that he continues to receive ODSP, I was not directed to a medical opinion stating that his recovery from the minor physical impairments sustained in the subject accident is prevented by this condition if he is kept within the MIG.
12However, the Tribunal has determined that chronic pain with functional impairment warrants removal from the MIG, as same is not captured by s. 3 of the Schedule. Here, the applicant points to Dr. Dessouki’s report to justify removal based on chronic pain, as well as various other medical documents that identify ongoing pain and reduced function, primarily in his left shoulder and lower back. While Dr. Dessouki does not appear to actually diagnose the applicant with chronic pain syndrome, he does indicate that the applicant’s impairments fall outside of the MIG and provides a diagnosis of myofascial pain syndrome and features of a chronic pain syndrome, opining that further investigation, including from a psychological perspective, would be needed. I find that the medical evidence, combined with the applicant’s long-standing pain from the previous accident and his reports of lingering pain post-accident, is enough to warrant removal from the MIG on a balance of probabilities.
13While the Tribunal would have benefitted from his ODSP file, Aviva did not dispute the applicant’s assertion that he has been receiving disability payments since 1998. I find the applicant’s complaints of pain are consistent and, at over two years post-accident, where this pain purportedly continues to affect his daily activities, and with the consumer-protection nature of the Schedule in mind, I consider it prudent to remove the applicant from the MIG to explore potential treatment to determine if he has reached maximal medical recovery, or if his pain can be reduced with additional intervention. That the applicant has consistently attempted to access additional treatment is compelling evidence, in my view, that he believes he requires additional help for his accident-related impairments. It may be that the applicant has achieved maximal recovery, but for these reasons, I find the applicant has demonstrated that removal from the MIG based on chronic pain, with the possibility that it is accompanied by psychological impairment, addressed below, is warranted.
14For completeness, and with these findings in mind, I find Dr. Dessouki’s recommendation for a psychological assessment to investigate the applicant’s chronic pain condition, the results of the psychological pre-screen interview and the applicant’s affidavit where he reports ongoing emotional difficulties, including stress, anxiety and panic attacks, to be further evidence to justify removal from the MIG to investigate whether his pain condition has a psychological component to it.
Is the assessment plan reasonable and necessary?
15To receive payment for a treatment plan under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.1 There must be a reasonable basis for a request for an assessment.
16Here, the applicant seeks payment for an OCF-18 in the amount of $2,200 for a psychological assessment based on a pre-screen interview and Dr. Dessouki’s suggestion that he undergo same. In response to the claim, Aviva scheduled a s. 44 IE with Dr. Syed, neuropsychologist, who determined that the applicant was suffering from maladaptive beliefs and could be suffering from psychological distress, but that the OCF-18 was not reasonable and necessary.
17Given Dr. Dessouki’s recommendations for a psychological assessment to investigate the applicant’s chronic pain condition, the results of the psychological pre-screen interview and the applicant’s affidavit where he reports ongoing emotional difficulties (stress, anxiety and panic attacks among them), I find it is necessary to conduct a psychological assessment to determine if the applicant’s ongoing pain symptomology is tied to a psychological impairment stemming from the accident, whether his pain is purely physical in nature or, as Dr. Syed determined, it is as a result of ongoing maladaptive beliefs about his condition.
18Where the applicant also expressed interest in attending for psychological treatment to address his emotional issues, I find it reasonable to fund the cost of investigating the scope of such treatment. Additionally, the cost of the assessment is in line with industry standards, and where Aviva conducted a psychological assessment of its own, I find the $2,200 cost, including the OCF form, to be reasonable. The additional comments section of the OCF-18 provides a fulsome roadmap for assessing the applicant’s condition and presents achievable goals for a treatment plan of this scope, so I am satisfied that there is a reasonable basis to investigate whether the applicant’s pain symptomology is a result of psychological factors. For these reasons, I find the applicant is entitled to the cost of the OCF-18 in dispute once incurred, plus applicable interest under s. 51, if applicable.
The applicant is not entitled to an NEB
19The applicant also sought an NEB as a result of the accident. Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “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 Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 which, generally, requires a comparison of the applicant’s pre- and post-accident activities.
20The applicant relies primarily on his affidavit, the OCF-3 and the report of Dr. Dessouki to establish the change in his pre- and post-accident capabilities and his entitlement to an NEB. Aviva relies on the occupational therapy report prepared by Harish Sharma, who determined that the applicant is independent with his personal care activities, participates in light housekeeping, goes for walks and socializes with family and friends, while being able to drive to access the community. Dr. Kopyto similarly did not identify any impairment that would prevent the applicant from performing his pre-accident activities and found that he does not meet the criteria for NEB. While the OCF-3 checks the NEB box, it only indicates that the anticipated duration is 9-12 weeks and, critically, does not explain how the applicant has a complete inability to carry on a normal life where the only injuries identified are sprains and strains and headaches and where there were no prior conditions identified in Part 8.
21While I accept that the applicant has ongoing pain, I find the medical evidence does not support that the applicant suffered a complete inability to carry on a normal life as a result of the subject accident. The purported difficulties the applicant identifies in his affidavit are not in line with the bulk of the medical evidence or with the information the applicant provided to assessors. For instance, the applicant returned to part-time work as an Uber driver within six months of the accident, was able to independently perform his personal care activities, participate in housekeeping activities while pacing, cook for himself, take 25 minute walks and transfer from sitting to standing with limited difficulty, which calls into question the statements made in his affidavit that, post-accident, he was unable to dress himself, required assistance with toilet transfers and could only perform 10% of his pre-accident housekeeping duties. While the applicant may have ongoing pain, I cannot find that this pain practically prevents him from living a normal life, as Heath contemplates. Removal from the MIG based on reduced functional impairment due to ongoing pain is not the same as having a “complete inability” for NEB purposes.
22I prefer the October 5, 2018 s. 44 reports of Dr. Kopyto and OT Sharma over the report of Dr. Dessouki, as they were completed closer in time to the accident and, in my view, are more in line with the bulk of the medical evidence. Dr. Dessouki’s report was completed in July 2019, over 1.5 years after the first accident, and does not comment on the effect of the second accident in August 2018 accident at all even though his opinion on the applicant’s prognosis refers to an accident that occurred “approximately 6 months” ago. Further, Dr. Dessouki’s report indicates that the applicant can no longer work, which contradicts the applicant’s own affidavit evidence that he has returned to work part-time. While it was prepared in June 2019, I find that Dr. Farber’s s. 44 report, in which he found the applicant to be in the MIG after the second accident in August 2018, similarly casts doubt on the applicant’s claim that he had a complete inability to carry on a normal life during the period in dispute.
23While I accept that the applicant may have ongoing pain and perhaps even a reduced ability to complete certain activities as he did previously, I do not find that this pain practically prevents him from completing his daily activities or constitutes a complete inability to carry on a normal life because of the accident, which is the strict test he must meet. Given the above reports of functionality and the s. 44 assessors’ inability to identify an objective injury that would be functionally limiting, I find there is limited evidence to support that his accident-related impairments—again, sprain and strain injuries and exacerbated pain that may or may not have a psychological component to it—continuously prevented him from engaging in substantially all the activities in which he ordinarily engaged pre-accident for the period in dispute.
24Notably, where the OCF-10 election form was also not completed until July 24, 2018, it limits the applicant’s window of entitlement. To this end, the Tribunal would have benefitted from evidence of contemporaneous reporting to his family physician of his lack of function during this period, or, at minimum, objective evidence to corroborate his reported limitations during this post-accident period and to identify the duration of his limitations more clearly. For these reasons, I find the applicant is not entitled to payment for a NEB for the period in dispute, as he has not demonstrated a complete inability to carry on a normal life as a result of the subject accident.
ORDER
25The applicant has demonstrated that removal from the MIG is warranted. The OCF-18 for a psychological assessment is reasonable and necessary and payable once incurred. Interest applies on any overdue benefits.
26The applicant is not entitled to payment of a NEB for the period in dispute, as he has not demonstrated a complete inability to carry on a normal life.
Released: April 8, 2022
Jesse A. Boyce
Vice-Chair