Mohamed Abdullahi v. Certas Direct Insurance Company, 2022 CanLII 6805

Citation: Abdullahi v. Certas Direct Insurance Company, 2022 ONLAT 20-005585/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:

Mohamed Abdullahi

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Tanjoyt Deol, Counsel

For the Respondent:

April Snow, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Mohamed Abdullahi, was injured in an automobile accident on December 28, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Certas Direct Insurance Company, the respondent. The applicant was also in a second motor vehicle accident on September 9, 2018 and was in a third motor vehicle accident on August 19, 2019.

2The respondent denied the applicant’s claims regarding the December 28, 2016 accident, including a chronic pain assessment, because it had determined that all of the applicant’s injuries from this accident 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 on October 16, 2020 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 $2,200.00 for a chronic pain assessment, recommended by Novo Medical Services Inc., in a treatment plan (OCF-18) dated January 30, 2019?

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

RESULT

5I find that the applicant has not proven that his accident-related impairments warrant removal from the MIG, he is not entitled to the January 30, 2019 OCF-18 for a chronic pain assessment, no interest is payable, and this application is dismissed.

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) 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 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 as a result of the accident. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

8I find that the applicant has not proven on a balance of probabilities that his accident-related impairments require treatment beyond the MIG on the basis of a pre-existing condition, a psychological impairment and/or chronic pain.

Pre-existing Condition

9Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

(i) There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 on treatment costs under the MIG.³

10Prior to the accident, the applicant was diagnosed with back and knee pain (November 27, 2014 and May 27, 2016), anxiety (April 6, 2015 and May 27, 2016), and depression (April 6, 2015).⁴ It is the applicant’s position that these conditions were exacerbated as a result of the accident and, accordingly, he should be removed from the MIG. This, however, is not the test to meet for removal from the MIG based on a pre-existing condition. Additionally, the applicant has failed to submit any evidence that any of his pre-existing conditions would prevent him from achieving maximal recovery within the MIG. Therefore, I find that the applicant is not removed from the MIG based on any pre-existing condition.

Psychological Impairment

11Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.”

12The applicant relied upon the January 10, 2017 Disability Certificate (OCF-3) which was completed by Dr. Patrician Porco, chiropractor, and lists other anxiety disorder as an injury arising from the accident. I give little to no weight to this OCF-3 in determining if the applicant sustained a psychological impairment as a result of the accident because psychological conditions are outside the scope of a chiropractor’s practice. It is also well settled that an OCF-3 on its own is not evidence of a diagnosis.

13The applicant also relied upon the clinical notes and records (CNRs) of Dr. Naguib Milad, the applicant’s family physician, to support his position that he sustained a psychological impairment from the accident. I find, however, that Dr. Milad’s CNRs do not support the applicant’s position for the following reasons:

(i) Dr. Milad noted in the January 19, 2017 CNR entry that the applicant complained of insomnia and feeling stressed since the accident. However, Dr. Milad made no psychological diagnoses and did not prescribe any medications for the applicant’s psychological complaints at this visit despite doing so in the past;

(ii) The January 19, 2017 CNR entry was also the sole complaint made by the applicant of any psychological symptoms to Dr. Milad post-accident;

(iii) The applicant is correct that Dr. Milad reported in a June 26, 2017 CNR entry that the applicant, “still gets back and neck pain since MVA of Dec. 2016, got better with Amitriptyline and ativane [sic].” However, there is no evidence on the prescription history⁵ that the applicant had any such prescriptions filled post-accident; and

(iv) While the applicant was referred to a social worker by Dr. Milad on November 29, 2017, this referral appears to be associated with a domestic incident as the CNRs do not show that the accident was discussed during this visit.

14The applicant also relied upon a psychological pre-screen document to support his position that he sustained a psychological impairment from the accident. I place little weight on this document for the following reasons:

(i) The document is undated and not signed. It is also not clear who authored the document;

(ii) The document contains no information as to who made the provisional diagnoses of an adjustment disorder with anxiety and depression and specific phobia; and

(iii) The document contains information that is contradicted by other evidence before me. For example, the psychological pre-screen document states that the applicant was not able to return to work since the accident. In the May 24, 2017 In-home Occupational Therapy Insurer’s Examination (IE) Assessment Report by Leslie Hisey, occupational therapist,⁶ however, the applicant reported that he was not gainfully employed at the time of the accident.⁷ Further, in the January 10, 2017 Initial Consultation – Data Sheet and Notes included in the Mackenzie Medical Rehabilitation Centre CNRs,⁸ it is noted that the applicant had not worked for 15 years prior to the accident. Additionally, the psychological pre-screen document stated that the applicant did not report experiencing any previous mental or emotional health problems, which is contrary to his diagnoses by Dr. Milad of anxiety and depression in May 2015 and of anxiety in May 2016.

15I also give little weight to the July 6, 2017 Psychological Consultation report by Dr. Vitelli⁹ in which the applicant is diagnosed with an adjustment disorder with mixed anxiety and depressed mood.¹⁰ Dr. Vitelli’s report contained the same misinformation that the applicant was unable to return to work post-accident and that the applicant denied any psychiatric history before the accident, as was contained in the psychological pre-screen document.¹¹ Dr. Vitelli also failed to review Dr. Milad’s CNRs as part of the applicant’s overall assessment and, therefore, made no comment on his diagnosis in light of the absence of psychological complaints in Dr. Milad’s CNRs. Moreover, there is no discussion on how Dr. Vitelli arrived at the diagnosis of an adjustment disorder with mixed anxiety and depressed mood in light of the applicant’s score on the Beck Anxiety Inventory questionnaire, which Dr. Vitelli only noted as suggesting “a borderline range of reported anxiety symptoms.”¹²

16Finally, I am also not persuaded by the January 30, 2019 OCF-18 completed by Dr. Igor Wilderman, physician,¹³ which lists “other anxiety disorders” in the injury and sequelae information section to support the applicant’s position. The OCF-18 alone is not evidence of a diagnosis and Dr. Wilderman did not indicate that the applicant had been in a second accident on September 9, 2018 in part 7 of the OCF-18 that addresses prior and concurrent conditions.

17For all these reasons, the applicant is not removed from the MIG on the basis of a psychological impairment.

Chronic Pain

18In analyzing the issue of chronic pain and the MIG, the applicant relied upon the reconsideration decision of T.S. v. Aviva General Insurance Canada (T.S. v. Aviva).¹⁴ In this reconsideration decision, the Tribunal held that the definition of minor injury in s. 3(1) of the Schedule does not encompass an impairment such as chronic pain.¹⁵ Chronic pain was also defined in this decision as, “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months.”¹⁶

19Relying on T.S. v. Aviva, the applicant submitted that his injuries are outside of the MIG because he has developed chronic pain as a result of the accident as he did not recover within the usual time period for soft tissue injuries.¹⁷

20It is well settled, however, that for chronic pain to take someone out of the MIG, there must be an effect on the applicant’s functionality and that the chronic pain arising from the accident is the cause of the person’s impairment.

21It is clear that the applicant was complaining of back, neck, and knee pain to Dr. Milad well beyond the three- to six- month post-accident period.¹⁸ Dr. Milad, however, made no reports of any functional limitations as a result of the applicant’s ongoing pain. Further, the applicant last reported accident-related pain to Dr. Milad on April 10, 2018, over five months prior to the applicant’s second accident on September 9, 2018.

22Additionally, the only evidence of functional limitations were the applicant’s self-reports that were not supported by compelling medical evidence. For example, Dr. Vitelli’s July 6, 2017 report noted that the applicant had difficulty doing household chores, undertaking many of his regular pre-accident activities, and was much less active post-accident.¹⁹ Unfortunately, there are no further details in Dr. Vitelli’s report to support these reported limitations.

23The applicant’s self-reports regarding his functionality were also contradictory at times. For example, the applicant reported to Hisey in the May 24, 2017 In-home Occupational Therapy IE Assessment Report that after the accident, he went from living with his aunt in Kitchener and moved in with his two sisters in York Region to have easy access to his family physician.²⁰ In contrast, Dr. Vitelli’s July 6, 2017 report noted that the applicant moved in with his “sister” so that she would be able to better support him.²¹ The applicant also reported to Hisey that prior to the accident, his aunt used to cook for him²² whereas he reported to Dr. Lori Feigelson, physiatrist, in the July 31, 2017 Physiatry Assessment IE Report that he would cook “all kinds of food.”²³ The applicant also reported to Dr. Feigelson that post-accident his sisters and his mother have taken over all of his cooking²⁴ whereas he reported to Hisey that he prepares light meals for himself.²⁵

24Moreover, the medical evidence submitted by the respondent does not support a finding that the applicant suffers from chronic pain that is accompanied by a functional limitation. For example, the respondent relied upon Hisey’s May 24, 2017 report in which Hisey noted that the applicant had: resumed all of his personal care tasks excluding toenail care; resumed driving short distances; was making small meals for himself; was cleaning up after himself in the kitchen; was making his bed and changing bed linens;²⁶ and was completing a home exercise program independently.²⁷ In fact, Hisey’s report showed that the applicant was completing more homemaking tasks than he did prior to the accident. At the time of her assessment, the applicant was cleaning up after himself in the kitchen and demonstrated functional abilities to complete dishes and to wipe the counter whereas his aunt would complete these tasks for him prior to the accident.²⁸ Hisey also stated that while the applicant was not completing his laundry and carrying groceries, the applicant demonstrated functional abilities to complete portions of these tasks.²⁹ Hisey also stated that the applicant presented with functional range of motion, strength, balance, transfers, mobility, and an ability to complete the majority of his personal care and homemaking tasks.³⁰ Finally, while Hisey noted that the applicant reported sharp pain with grip strength testing, she stated that this report was not consistent with the diagnoses in the documentation that she had reviewed.³¹

25The respondent also relied upon Dr. Feigelson’s July 31, 2017 report in which Dr. Feigelson opined that there was no evidence of any physical and structural organic pathology that would render the applicant unable to perform his activities of daily living.³²

26On the evidence, I find that the applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain.

27As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan for a chronic pain assessment. Even though the MIG limits have not been exhausted,³³ the second page of the January 30, 2019 OCF-18 indicates that the treatment proposed was outside of the MIG framework which I have determined the applicant is not entitled to.

28Nevertheless, the applicant submitted that the respondent’s denial of the January 30, 2019 OCF-18 failed to comply with sections 38(8) and 38(9) of the Schedule and, therefore, the disputed treatment plan is payable. I find, however, that the applicant is not entitled to the January 30, 2019 OCF-18 because the respondent complied with its obligations under s. 38(8) of the Schedule.

29Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which good, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

30The requirement of medical reasons in s. 38(8) of the Schedule was further explained in the Tribunal’s reconsideration decision of T.F. v. Peel Mutual Insurance Company (T.F. v. Peel).³⁴ In this decision, the Tribunal held:

An insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.³⁵

31If an insurer fails to comply with its obligations under s. 38(8), the consequences set out in s. 38(11) of the Schedule are triggered.

32On February 13, 2019, the respondent acknowledged receipt of the January 30, 2019 OCF-18 by way of correspondence to the applicant. This letter stated:

I received [sic] recommendation dated Jan. 30, 2019 from Novo Medical Services Inc.. [sic] The total recommendation of $2,200.00 has not been approved because I believe your injuries are categorized as [sic] Minor Injury. Recommendations must address your diagnosis.

33An explanation of benefits (EOB) also accompanied the respondent’s February 13, 2019 correspondence. The EOB stated that the respondent was of the opinion that the applicant’s injuries were predominantly minor and fell under the MIG. The EOB also stated:

The Section 44 Physiatry report dated July 31, 2017 completed by Dr. Lori Feigelson of Seiden Health noted that given the delay in symptom presentation (about 2 weeks) following the acute trauma, it is unlikely that your reported neck and back pain is directly attributable to the accident. As such, there is no physical impairment directly attributable to the accident. She also stated that your pre-existing low back pain and stiffness which were documented in your family physician notes was [sic] not exacerbated as a result of the accident and it should not affect your recovery from the injuries sustained at the time of the accident and that you have reached maximum medical recovery at this point in time. I will not be paying for the chronic pain assessment treatment plan in the amount of $2200.00.

34While the respondent’s letter was boilerplate and provided no medical reasons for its denial of the treatment plan, the respondent did provide medical and other reasons when it denied the January 30, 2019 OCF-18 in the EOB, as required by s. 38(8) of the Schedule. Specifically, the respondent provided details about the applicant’s condition with reference to Dr. Feigelson’s July 31, 2017 report, stated the specific benefit at issue, and was sufficiently clear to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Indeed, the applicant submitted that the respondent relied upon Dr. Fiegelson’s report wherein “he fallaciously concluded that the Applicant’s neck and back pain were not linked to the subject accident.”³⁶ The applicant highlighted the exact medical and other reasons for the denial in his submissions and, therefore, I do not agree with him that he was “left in the dark” regarding the denial.³⁷

35As I have found that there is no breach of the respondent’s obligations under s. 38(8), the consequences in s. 38(11) are not triggered. As a result, the applicant is not entitled to the January 30, 2019 OCF-18 for a chronic pain assessment.

Interest

36As there are no benefits owing, no interest is payable.

CONCLUSION

37For the reasons outlined above, I find that:

(i) The applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG

(ii) The applicant is not entitled to the January 30, 2019 OCF-18 for a chronic pain assessment;

(iii) No interest is payable; and

(iv) This application is dismissed.

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. 3Ibid. at page 5, heading 4, “Impairments that do not come within this Guideline”.
4. 4Applicant’s Submissions, tab T.
5. 5Applicant’s Reply, tab H.
6. 6Submissions of the Respondent, tab 3D.
7. 7Ibid. at page 6.
8. 8Submissions of the Respondent, tab 3K.
9. 9Applicant’s Submissions, tab G.
10. 10Ibid. at page 8.
11. 11Ibid. at pages 3 and 8.
12. 12Ibid. at page 7.
13. 13Applicant’s Submissions, tab 3I.
14. 142018 CanLII 83520 (ON LAT Reconsideration).
15. 15Ibid. at para. 20.
16. 16Ibid. at para. 23.
17. 17Applicant’s Submissions, para. 5.
18. 18Supra note 5. See various CNR entries from March 20, 2017 to April 10, 2018.
19. 19Supra note 9 at page 4.
20. 20Supra note 6 at page 3.
21. 21Supra note 9 at page 4.
22. 22Supra note 6 at page 5.
23. 23Applicant’s Submissions, A, tab 3H, page 7.
24. 24Ibid.
25. 25Supra note 6 at page 5.
26. 26Ibid. at page 13.
27. 27Ibid. at page 5.
28. 28Ibid. at page 5.
29. 29Ibid. at page 13.
30. 30Ibid.
31. 31Ibid.
32. 32Ibid. at page 9.
33. 33Submissions of the respondent, para. 24.
34. 342018 CanLII 39373 (ON LAT Reconsideration Decision).
35. 35Ibid. at para. 19.
36. 36Applicant’s Submissions, para. 14.
37. 37Applicant’s Submissions, para. 16.