Citation: Hormis v. Aviva General Insurance, 2022 ONLAT 20-000019/AABS

Licence Appeal Tribunal File Number: 20-000019/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:

Fadia Hormis

Applicant

and

Aviva General Insurance

Respondent

Ian Maedel

For the Applicant:

Maziar Mortezaei, Counsel

For the Respondent:

Ramandeep Pandher, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Fadia Hormis, (‘the applicant”), was involved in an automobile accident on March 8, 2018 when she was the driver of a motor vehicle struck by another vehicle making a left turn. Airbags did not deploy, and the applicant did not lose consciousness. The applicant visited her family physician the next day complaining of pain in the neck, shoulder, upper back, and headaches.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by Aviva General Insurance, (‘the respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3A case conference was conducted on July 15, 2020 and a written hearing was scheduled.

ISSUES

4The issues to be decided are:

i. 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 (“MIG”)?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 5, 2018 to March 8, 2020?

iii. Is the applicant entitled to $2,688.80 for chiropractic services recommended by Health Pro Wellness in a treatment plan (“OCF-18”) submitted September 12, 2018?

iv. Is the applicant entitled to $2,230.40 for physiotherapy services recommended by Health Pro Wellness in an OCF-18 submitted November 12, 2018?

v. Is the applicant entitled to $2,197.29 for a psychological assessment, recommended by Health Pro Wellness in a treatment plan submitted August 21, 2018?

vi. Is the applicant entitled to attendant care benefits (“ACB”) of $170.09 per month from March 11, 2019, to date and ongoing?

vii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5I find:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline;

ii. The applicant is not entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 5, 2018 to March 8, 2020;

iii. The treatment plans for chiropractic services and physiotherapy services are not payable as they are not reasonable and necessary;

iv. The applicant is not entitled to $2,197.29 for a psychological assessment, as it is not reasonable and necessary

v. The applicant is not entitled to attendant care benefits of $170.09 per month from March 11, 2019, to date and ongoing;

vi. The respondent is not liable to pay an award under Regulation 664;

vii. No interest is payable.

ANALYSIS

The Minor Injury Guideline

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) limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.¹

Physical Impairments and the MIG

8The applicant submits that as a result of the accident she suffers from physical and psychological impairments that require extensive treatment and removal from the MIG. The applicant relies on two Disability Certificates (“OCF-3’s), the first filed by Dr. Aliya Salayeva, Chiropractor dated March 22, 2018 states that the applicant suffers from physical impairments including whiplash associated disorder 2 (WAD-2) with neck pain and musculoskeletal signs, sprain and strain of; the cervical spine, thoracic spine, lumbar spine, sacroiliac joint, unspecified parts of the lumbar spine and pelvis, and shoulder joint. The applicant also submits she suffers from tension-type headaches and sleep disorders and has difficulties with housekeeping and childcare as a result of these impairments.²

9The second OCF-3 was filed almost three years later by Dr. Siavash Taheri-Shalmani, General Practitioner, dated March 16, 2021 and states that the applicant suffers from chronic lower back pain, major depressive disorder, anxiety with panic attacks. She was prescribed Ativan for panic attacks and anxiety. Dr. Taheri-Shalmani indicates she suffers from significant physical impairments which impacted her ability to engage in regular activities and her psychological injuries made it “impossible” to manage everyday workplace stress.³ The respondent objects to any weight being attributed to this second OCF-3, as it was filed after the document exchange deadline of March 16, 2021, does not comment on the test for non-earner benefits, and is irrelevant to the issues in dispute.

10The applicant relies on a total of two clinical notes and records provided by different Family Physicians approximately 18 months apart. The first note from Dr. N. Dortaj dated March 9, 2018, one day post-accident, details physical injuries that include headaches, pain in the neck, right shoulder and right upper back. He recommends exercise, meditation, lifestyle change and proper sleep.⁴ The second note from Dr. S. Taheri-Shalmani dated September 13, 2019, which states “chronic lower back pain (mild): does stretches regularly”.⁵ Neither visit resulted in a recommendation for further investigation, specialist referral, or imaging related to the applicant’s accident-related symptoms.

11Attached to the OCF-18 dated July 17, 2018 for a psychological assessment and testing, was correspondence by Dr. F. Aghamohseni, Psychologist relating to a pre-assessment interview. It was noted the applicant’s physical accident-related impairments included head, neck, back pain.⁶ Similarly, attached to the second OCF-3 was correspondence from Dr. Taheri-Shalmani dated March 16, 2021 (31 months later) which indicated she sustained severe back pain, that impaired her ability to ambulate and stand for extended periods of time. He indicated the applicant was “currently not significantly impaired by these issues that came about after her accident”.⁷ He recommended physiotherapy for her back pain.

12In response, the respondent relies on the physiatry insurer’s examination (“IE”) reports by Dr. A. Oshidari, Physiatrist. Both reports were dated October 30, 2018 and were related to the claim for attendant care benefits and the OCF-18 for chiropractic and massage therapy treatment. He diagnosed her with sprain/strain (WAD-I) of the cervical spine and thoracolumbar spine, and contusion of knee with tension headache. In both reports he concluded that her injuries fit the definition of a minor injury and could be treated under the MIG.⁸ Given that these are the only expert reports tendered relating to the applicant’s physical impairments, I place significant weight upon them.

13As a result, I am persuaded the applicant has not demonstrated that her physical accident-related impairments warrant removal from the MIG. The physical impairments listed in the OCF-3 dated March 22, 2018 and Dr. Dortaj’s note of March 9, 2018 fall squarely within the definition of a minor injury. The only expert reports were tendered by the respondent and indicate her physical injuries can all be treated within the MIG. The applicant has not otherwise provided any expert reports or imaging that demonstrate these physical accident-related impairments should be considered outside the definition of a minor injury under s. 3(1) of the Schedule.

Chronic Pain and the MIG

14The Tribunal has determined that an applicant may be removed from the MIG if they suffer from chronic pain that causes functional impairment or if they meet three of the six criteria for chronic pain as provided by the AMA Guides.⁹

15Here the basis for the claim of chronic lower back pain, stems from Dr. Taheri-Shalmani’s comment in the clinical note of September 13, 2019, and part 5 of the OCF-3 dated March 16, 2021. Dr. Taheri-Shalmani specifically noted this chronic lower back to be “mild”, otherwise, the applicant provided no expert opinion or report regarding the chronicity of any functional impairment. Nor has the applicant demonstrated that she met any of the six criteria specified in the AMA guides. Accordingly, I find the applicant has not demonstrated she suffers from chronic pain that would justify her removal from the MIG.

Psychological Impairments and the MIG

16Lastly, psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.” In the clinical note from Dr. Dortaj March 9, 2018, he notes the applicant’s “mood/affect: anxious” and “anxiety?”.¹⁰ Similarly, in the clinical note from Dr. Taheri-Shalmani dated September 13, 2019 he notes the applicant “used to take meds for depression, no longer taking any meds for this”.¹¹ Attached to the OCF-18 dated July 17, 2018, Dr. Aghamohseni, Psychologist, conducted a “brief” pre-assessment interview, noting the applicant was “overwhelmed by general feelings of anxiety and depression” and must take “time outs” a few times a day to centre herself. He noted she also suffered heightened anxiety as a driver and that her psychological symptoms may impede her recovery. He recommended a psychological assessment as a result.¹² Otherwise, the applicant adduced no additional evidence or expert reports related to establish any psychological impairments that were beyond the definition of a minor injury.

17However, a psychological IE was conducted by Dr. K. McCutcheon as part of the Multidisciplinary Report dated October 30, 2018. While this report was dedicated to determining if the applicant required attendant care benefits, following psychometric testing it was noted the applicant suffered some depressive and anxious symptomology. However, it was noted her symptoms of anxiety and depression were subclinical, and there was no evidence to indicate a presence of a diagnoseable psychological condition as a result of the accident.¹³ In an IE report related to the OCF-18 for a psychological assessment, Dr. McCutcheon arrived at the same conclusion. Both reports concluded that that any accident-related psychological symptoms fell within the MIG limits.¹⁴

18A battery of psychological testing was completed as part of the assessment conducted by Dr. McCutcheon. This included the P3, BAI, BDI-II, and the VMT tests or questionnaires. The pre-assessment interview conducted by Dr. Aghamohseni July 17, 2018 did not include any objective psychological testing, and was simply a reflection of the applicant’s self-reporting. As a result, I find the reports of Dr. McCutcheon more persuasive regarding any potential psychological impairments. It also appeared that by March 16, 2021 when she visited Dr. Taheri-Shalmani that her mental health had “already improved significantly with her mood and anxiety symptoms… I expect continued improvement with this over the next 3-6 months”.¹⁵ I consider the subclinical psych symptoms to be sequalae of the minor injury. Thus, I am not satisfied the applicant currently suffers a psychological impairment that would remove her from the MIG.

19For these reasons, I find the applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

Non-Earner Benefits (“NEB”)

20I find that the applicant has failed to prove on a balance of probabilities that she is entitled to NEBs for the period of April 5, 2018 to March 8, 2020.

21The test for entitlement to a NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident. Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

22“Substantially all” is not defined in the Schedule. However, the phrase has been interpreted by the Tribunal to mean “more than most, a majority, but not all activities.”¹⁶

23In the seminal case of Heath v. Economical Mutual Insurance Company,¹⁷ the Court of Appeal held that:

…the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident.¹⁸

24The Tribunal has also held that an applicant must provide evidence of the frequency and time commitments of the applicant’s pre-accident activities to compare how much less they are able to dedicate to the same activity post-accident to discharge their burden of proving that they are prevented from engaging in “substantially all” of the pre-accident activities in which they ordinarily engaged.¹⁹

25The applicant failed to identify what period of time she engaged in her pre-accident activities and the frequency in which she engaged in most of these activities. Furthermore, the applicant did not lead any evidence regarding her pre-accident level of functionality. In the pre-assessment interview conducted by Dr. Aghamohseni, on July 17, 2018, it was noted her household tasks and routine activities of daily living had become difficult to complete due to pain and other physical and psychological sequelae.²⁰ I am not satisfied that difficulty with household tasks equates to a complete inability as per the NEB test. However, by March 16, 2021, Dr. Taheri-Shalmani specifically identified the test for NEB, stating that she had no complete inability to carry on a normal life at that time.²¹ Otherwise, the applicant did not tender any evidence in support of her application for NEB.

26The respondent provided a Multidisciplinary Assessment Report dated October 30, 2018. Dr. Oshidari, Physiatrist, Dr. K. McCutcheon, Psychologist, and Mr. Rod Pritchett, Occupational Therapist all opined on the NEB test. Both Dr. Oshidari and Dr. McCutcheon concluded that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.²² Similarly, Mr. Pritchett noted the applicant remained independent and had sufficient functional ability to manage self-care, household tasks, social/recreational activities, and childcare.²³

27Given the lack of evidence tendered by the applicant, she has failed to meet her evidentiary onus. I find the applicant does not suffer from a complete inability to carry on a normal life as a result of the accident from April 5, 2018 to March 8, 2020, and as a result, is not entitled to non-earner benefits for this period.

28The applicant submits the OCF-18s completed by R. Tarulli, Chiropractor dated July 27, 2018 for physiotherapy in the amount of $2,230.40 and dated August 15, 2018 for chiropractic treatment in the amount of $2,688.80. I find the treatment plans in dispute are not reasonable and necessary pursuant to the Schedule.

29Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

30The applicant bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary on a balance of probabilities.²⁴

31Aside from the OCF-18 forms, only Dr. Taheri-Shalmani indicated (in correspondence dated March 16, 2021) that the applicant’s back pain improved dramatically when doing regular physiotherapy.²⁵ Again, the applicant has not provided any additional compelling medical evidence or expert reports to otherwise establish this treatment is reasonable and necessary. I place weight upon the conclusions reached in the Physiatry IE Report provided by Dr. Oshidari. He indicated the treatment plan for chiropractic treatment was not reasonable or necessary for the applicant’s uncomplicated soft tissue injury.²⁶ Similarly, I have not been provided any corroborating medical records which indicate an ongoing need for physiotherapy or chiropractic treatment, nor any additional expert evidence regarding these benefits in dispute.

32Given the lack of evidence provided by the applicant and the conclusions in the Report by Dr. Oshidari, I cannot conclude that these two treatment plans are reasonable and necessary pursuant to the Schedule.

Psychological Assessment

33The applicant submits the OCF-18 completed by Psychologist Fahimeh Aghamohseni dated July 17, 2018 for a psychological assessment in the amount of $2,197.29 is reasonable and necessary. I disagree, I find the treatment plans in dispute are not reasonable and necessary pursuant to the Schedule.

34In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect he has the condition for which she seeks the assessment.

35In the OCF-18, her injuries were listed as problems related to life management difficulty, pain not elsewhere classified, other sleep disorders, nervousness, stress – not elsewhere classified, unhappiness, symptoms and signs involving emotional state, state of emotional shock and stress – unspecified, specific (isolated) phobias, and adjustment disorders.²⁷ In the “brief” pre-assessment detailed in the correspondence attached to the OCF-18, the psychologist indicated the applicant struggles with her everyday responsibilities due to physical and psychological sequelae. She reported difficulty sleeping including sleep onset, interruptions, and disturbing dreams. She reported she gets anxiety attacks and her patience wears thin if not fully rested. At moments of heightened anxiety she cries, shakes, breathes deeply and sweats. She further struggled with household activities of daily living. She also faces heightened anxiety as a driver, contributing to a reduced sense of independence. Finally, Fahimeh Aghamohseni concluded that the applicant’s injuries/symptoms fall outside the MIG and formal psychological assessment is clearly warranted.²⁸

36Dr. Kelly McCutcheon directly addressed whether this assessment was reasonable and necessary in the Psychology Assessment Report dated October 30, 2018. In her self-reporting, the applicant indicated she had not undergone any psychological counselling. After conducting a number of objective tests including the VMT, P-3, BAI, and the BDI-II, it was noted the applicant exhibited symptoms of anxiety and depression.²⁹ However, it was noted that these symptoms were subclinical, and there was no evidence of a diagnosable psychological condition as a result of the accident. Dr. McCutcheon concluded that an additional comprehensive psychological assessment was unwarranted, and the OCF-18 was not reasonable and necessary.³⁰

37I find Dr. McCutcheon’s report persuasive. It provides objective psychometric testing, versus the self-reporting and observations made by Fahimeh Aghamohseni in the “brief” pre-screening conducted. Aside from the pre-screening correspondence attached to this OCF-18, the applicant has otherwise provided no objective evidence or expert reports to establish the applicant is suffering from any psychological impairment. Thus, the applicant has not met her evidentiary onus, and as a result I do not find the psychological assessment reasonable and necessary pursuant to the Schedule.

Attendant Care Benefits (“ACB”)

38Section 19 of the Schedule provides that attendant care benefits shall pay for all reasonable and necessary expenses incurred by an insured person for the services of an attendant or aide. The insured person bears the onus of establishing entitlement to the benefits on a balance of probabilities.³¹

39Pursuant to s. 14 2 of the Schedule, attendant care benefits are only payable under s.19 if the impairment is not a minor injury. Given that I have concluded above that the applicant’s injuries are minor and fall under the MIG, the applicant is not entitled to attendant care benefits.

40However, even if I set this finding aside, the applicant has still not met her onus in establishing the ACB is payable in the amount of $170.09 per month from March 11, 2019 to date and ongoing.

41The applicant relies on the Assessment of Attendant Care Needs (Form 1), provided by Yana Granovsky, Registered Nurse, dated April 19, 2018. According to the Form 1 completed, the applicant required assistance cleaning the bathroom, changing and making the bed, assistance with grooming – specifically cleaning and trimming toenails, and assistance in preparing and serving meals. This equated to 200 minutes of assistance or a calculated monthly ACB expense in the amount of $170.09.³² However, the applicant failed to provide an associated report determining how Ms. Granovsky arrived at these conclusions based on physical evaluation and practical observations. Nor has the applicant provided any medical evidence corroborating these findings, and/or evidence of incurred ACB expenses.

42This is in direct contrast to the Occupational Therapy In-Home IE Assessment conducted by Rod Pritchett, Occupational Therapist in the report dated October 30, 2018. Mr. Pritchett conducted an in-home assessment and a functional assessment to determine the applicant’s functional status in relation to the ACB at issue. The applicant self-reported she was independent with all personal care tasks, though sometimes at a slower pace due to pain. He noted she continued to engage in homemaking tasks, shared caregiving tasks to her children with her spouse, continued to operate a motor vehicle, and engage in leisure activities.³³ Following the completion of physical evaluations and practical observations, he opined that the applicant does not suffer an impairment that requires the need of an aide to assist in her personal care function. Provision of unnecessary support for these tasks would promote dependency on external supports, given that the applicant demonstrated adequate functional ability to independently complete her self-care tasks. Finally, he concluded that zero hours of attendant care was required per week.³⁴ Given the lack of an expert report to support the Form 1 tendered by the applicant, I am persuaded by the findings of Mr. Pritchett.

43Given the totality of evidence, I find the applicant has failed to satisfy her onus on a balance of probabilities. Therefore, she is not entitled to attendant care benefits in the amount of $170.09 per month from March 11, 2019 to date and ongoing.

Award and Interest

44Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s. 10 of Regulation 664. Thus, no award is payable.

45Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

46The application is dismissed, and I find that: