Ahmadi v. Jevco Insurance, 2022 CanLII 93718

Citation: Ahmadi v. Jevco Insurance, 2022 ONLAT 20-001482/AABS

Licence Appeal Tribunal File Number: 20-001482/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:

Samaneh Ahmadi

Applicant

and

Jevco Insurance

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Raymond Luk, Counsel

For the Respondent: Murleen McLean, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on August 5, 2018 and sought benefits from Jevco Insurance, the respondent, 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 the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from September 5, 2018 to August 5, 2020?

ii. Is the applicant entitled to a medical benefit in the amount of $1,995.55 for an attendant care assessment, recommended by Alliance Diagnostics in a treatment plan (“OCF-18”)?

iii. Is the applicant entitled to a medical benefit in the amount of $3,841.09 for psychotherapy treatment recommended by Galdsheteyn & Baskakova Psychological Corporation in an OCF-18?

iv. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment, recommended by Sports Medicine Rehab in an OCF-18?

v. Is the applicant entitled to an award pursuant to Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

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

RESULT

3I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. The applicant is not entitled to an attendant care assessment in the amount of $1,995.55;

iii. The applicant is not entitled to psychiatric treatment in the amount of $3,841.09;

iv. The applicant is entitled to a chronic pain assessment in the amount of $2,200.00, plus interest; and

v. The applicant is not entitled to an award pursuant to s. 10 of Regulation 664;

4Resolved Issues: the treatment plans for occupational therapy treatment in the amount of $1,796.00, chiropractic treatment in the amount of $2,292.15, and the cost of a preliminary catastrophic assessment in the amount of $2,168.00 have all been approved by the respondent and are no longer at issue.

BACKGROUND

5The applicant was the seat-belted driver of her vehicle when she was involved in a rear-end collision at a stop light. She did not lose consciousness, strike her head, airbags did not inflate, and there was no secondary impact. Her main concern following the accident was the well-being of her mother and sister who were passengers in her vehicle. She was able to exit the vehicle independently and call 911. Both her mother and sister were transported to hospital. The applicant sustained bruising as a result of the accident.

6The applicant visited her family physician, Dr. Majid Fanipour, on August 13, 2018, complaining of neck pain, lower back pain, and shoulder pain.¹ X-rays taken on August 14, 2018 indicated that her lumbar spine, sacroiliac joints, and left ankle were all normal.² An MRI of her lower back was conducted on October 2, 2019, revealing degenerative changes, and she was diagnosed by Orthopaedic Surgeon, Dr. Farid Guirgis, with degenerative disc disease within the lumbar spine with mild central canal stenosis.³

7At the time of the accident, the applicant was unemployed and had registered for grade 12 classes at Excellent Academy, with the goal of eventually attending college to become a dental hygienist.

ANALYSIS

Non-Earner Benefit

8The test for entitlement to a non-earner benefit (“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.

9Section 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.

10“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.”⁴

11In its submissions, the respondent referred to the decision in Heath v. Economical Mutual Insurance Company,⁵ wherein 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.⁶

12Heath also outlines several principles for the determination of entitlement to a NEB as follows:

i. There must be a comparison of the applicant’s activities and life circumstances before the accident to those post-accident;

ii. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable period prior to the accident, and the duration of that period will depend on the facts of the case;

iii. All of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

iv. The applicant must prove that his/her accident-related injuries continuously prevent him/her from engaging in substantially all of his/her pre-accident activities (this means that the disability or incapacity must be uninterrupted);

v. “Engaging in” should be interpreted from a qualitative perspective, such that even if an applicant can still perform an activity, if the applicant experiences significant restrictions when performing that activity, it may not count as “engaging in” that activity; and,

vi. If pain is the primary reason that an applicant cannot engage in former activities, the question is whether the degree of pain practically prevents the applicant from performing those activities. The focus should not be on whether the applicant can perform those activities.⁷

13The 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.⁸

14Neither party made submissions on what the reasonable time period was to examine the applicant’s pre-accident activities as required by Heath. I find that examining the period from approximately one-year prior to the accident is reasonable in this matter to assess the applicant’s pre-accident activities.

15The applicant relies on five Disability Certificates (“OCF-3s”) filed by medical practitioners between August 8, 2018 and February 27, 2020. Only the initial OCF-3 dated August 8, 2018 by Chiropractor Shadi Jahandideh-Sheljiani indicates the duration of the disability was more than twelve weeks.⁹ The other four OCF-3s, including two completed by the applicant’s family physician, Dr. Fanipour, all indicate the duration of the disability to be 9-12 weeks. The OCF-3 dated August 21, 2018 completed by Dr. Fanipour, supported the claim for NEB and indicated the applicant had trouble sitting in class, driving, sitting for long periods of time, and walking.¹⁰ While four of the OCF-3s indicated she was not working at the time of the accident, the final OCF-3 dated February 27, 2020 completed by Dr. Glenn Watkins, Chiropractor, specifically stated the applicant was employed as a sales manager and not enrolled in an education program at the time of the accident.¹¹

16The applicant relies on the five OCF-3s to establish that she meets the complete inability test. However, these documents themselves are not compelling evidence in support of her claim that she suffers a complete inability to carry on a normal life. There must be contemporaneous evidence in support of the complete inability test. Put simply, these documents are insufficient on their own to establish an NEB claim, absent compelling evidence regarding the applicant’s activities and life circumstances.

17One of the most contemporaneous pieces of evidence tendered is the applicant’s statement provided to the insurer on August 15, 2018. Taken just ten days post-accident, the applicant indicates she was unemployed at the time of the accident, had started to attend Excellent Academy in mid-July 2018, but found it difficult to sit on the rigid chairs. Otherwise, she indicated that she was able to do her own personal care before and after the accident. She indicated that “the other things are almost the same” … “compare[d] to the situation before the accident I can do the things now but slower”.¹² Otherwise, there was no direct, sworn evidence tendered by the applicant in support of her application, nor any comprehensive descriptions of her pre-accident activities.

18Dr. Fanipour’s clinical notes and records do not indicate that the applicant has a complete inability to carry on a normal life. The clinical notes and records detail seventeen entries in the pre-accident period between June 12, 2017 and July 23, 2018. These entries do not speak to her pre-accident activities, but rather the unfortunate drowning death of her brother and her “low mood, lack of motivation, no good sleep” following that event.¹³ No referral was made to a mental health professional, but prescriptions for Xanax and Zopiclone were initially provided. The post-accident clinical notes and records include issues regarding her pre-existing hyperthyroidism and menstrual issues in addition to reported lower back pain, left ankle pain, and headaches related to the accident.¹⁴ Specific to the NEB claim, and in direct response to the question posed by applicant counsel in correspondence on March 5, 2020, Dr. Fanipour indicated she did suffer a complete inability based on the applicant’s subjective reports. However, he indicated there was no objective basis in his opinion to prove this point, instead he deferred to the applicant’s pain specialists.¹⁵

19The applicant also relies on the Assessment of Attendant Care Needs Report by Varun Madan, Occupational Therapist from the assessment conducted October 10, 2020. The assessment, details the attendant care, housekeeping tasks, and additional professional recommendations. The applicant reported pain in her head, neck, lower back, left shoulder, left ankle and occasional dizziness. The applicant reported she used to enjoy an active pre-accident lifestyle including working out, swimming, jogging, visiting family and friends, and walking. She reported pain while performing these activities post-accident and is now unable to engage in high-impact activities.¹⁶

20Occupational Therapist Madan noted the applicant required assistance with housekeeping tasks including making the bed, toilet cleaning, meal preparation, dish washing, garbage removal, sweeping, dusting, mopping, vacuuming floors, laundry, grocery shopping, and window cleaning. Assistance was also required for specific personal care tasks like lower body dressing, shaving, and cutting her toenails.¹⁷ However, I place little weight upon this report, given that it was prepared solely for the purpose of attendant care benefits and there is no reference to the complete inability test for non-earner benefits.

21The respondent relies on the Insurer’s Examination (“IE”) report by Atul Kaul, Occupational Therapist, dated July 3, 2019. This report speaks directly to the NEB test. Although the applicant reported pain in lower back, left ankle, left shoulder, and intermittent neck pain, upon examination all were found to be within functional limits. The only exception was some shoulder pain at 120 degrees of flexion or abduction and some left ankle discomfort.¹⁸ It was noted that the applicant was independent with all her personal care duties pre-accident, and post-accident continued to remain independent with personal care duties (dressing, grooming, bathing, and toileting). Pre-accident she was residing with her mother the majority of the time who was responsible for meals and cleaning. Otherwise, she ate Uber-Eats and didn’t cook often for herself. Pre-accident she was otherwise independent with cleaning, making her bed, laundry, grocery shopping and putting out the garbage.¹⁹

22Following observation and examination at her boyfriend’s apartment, Mr. Kaul noted no intervention was needed for meal preparation, washing dishes, kitchen cleaning, laundry, bedmaking, floorcare, dusting, bathroom cleaning, grocery shopping, garbage removal or driving. Although limited by reaching overhead with her left shoulder, she had adequate abilities to engage in her personal care and household chores she engaged in pre-accident.²⁰ In regard to the specific NEB threshold, he noted that from a functional perspective the applicant does not have a complete inability to carry on normally daily living activities she performed prior to the accident.²¹ I place significant weight upon these findings.

23The applicant also relies on the Psychological Assessment Report provided by Natalia Zhukova, supervised by Anna Kozina, Psychologist, dated July 12, 2020. This report includes factual inconsistencies regarding the accident, including a report that the applicant lost consciousness, and was transported to hospital via ambulance.²² The applicant reported an estimated 80% loss in her ability to perform household chores due to post-accident pain and fatigue. She further reported that she modifies her daily tasks according to her physical restrictions, tending to frequently postpone their completion, and, after cleaning the house, she often required a few days to recover, and had some reported difficulty in performing self-care tasks.²³ She also reported a 90% decrease in her social life due to a loss off interest and physical restrictions²⁴ and drives approximately 80% less post-accident.²⁵ According to the assessors, the applicant’s condition was consistent with a Class 3, Moderate Impairment pursuant to the American Medical Association Table of Impairments due to Mental and Behavioural Disorders.²⁶

24The respondent relies on the Psychological Examination conducted by Dr. Louise Koepfler, Psychologist in her report dated July 3, 2019, in relation to the NEB claim. As part of the initial interview, the applicant revealed she had not started classes at Excellent Academy prior to the accident. This was despite her statement dated August 15, 2018, and the OCF-3 dated August 21, 2018 that indicated she was a student and had trouble sitting in class as a result of the accident.²⁷ Following the administration psychometric tests it was noted she was suffering symptoms of Somatic Symptom Disorder with predominant pain.²⁸ However, it was also noted that that applicant over-endorsed functional and psychological impairments compared to her presentation in the assessment. In relation to the specific test for NEB, Dr. Koepfler noted that from a psychological perspective she did not suffer a complete inability to carry on a normal life as a result of the accident.²⁹

25Dr. Koepler’s conclusion is persuasive, despite there being no apparent evidence she was aware of the applicant’s pre-accident depression related diagnoses in 2018. This history was not reported in the records of Dr. Fanipour, the applicant’s Family Physician. However, two reports tendered by Dr. Robin Cardan and Dr. Mostafa Showraki were tendered as part of the record.

26There is no evidence demonstrating that the applicant’s pre-accident psychological injuries were exacerbated to the point that she suffered a complete inability to carry on a normal life as a result of the accident. The applicant tendered evidence regarding her pre-accident diagnoses of Major Depressive Disorder, Adjustment Disorder with Mixed Depression and Anxiety, and Bereavement provided by Dr. Cardan, Psychiatrist dated June 27, 2018. I place no weight upon this one-page note to Dr. Fanipour, her Family Physician. Citing the stresses in her life related to the recent drowning death of her brother and her struggles to sponsor her then-husband in his attempt to emigrate from Iran.³⁰ Given the brevity of this report, there is no evidence of any psychometric testing, nor any review of clinical notes and records to support these diagnoses. Similarly, the applicant provided another brief pre-accident Consultation Report provided by Dr. Showraki dated November 29, 2017. This note is based wholly on the applicant’s self-reporting, and I place no weight on his diagnosis of Major Depression following her brother’s death. Not only was this report pre-accident, but I question the reliability and comprehensiveness of this report. It not only failed to provide any evidence of psychometric testing or review of previous medical records, but it repeatedly refers to the applicant by the wrong sex, not once, but sixteen times, concluding that the applicant was an “unfortunate man”.³¹ Given the inherent issues of reliability with both the Cardan and Showraki reports, I assign weight to neither.

27However, Dr. Koepler’s conclusion was not altered upon review of additional records. Dr. Koepfler provided a second Psychological Assessment Report dated November 13, 2020 following the receipt of additional clinical notes and records and the applicant’s Psychological Assessment Report. Although, Dr. Koepfler assessed the applicant in relation to disputed psychological treatment, she noted symptom amplification following nine separate psychological tests. Specifically, that the applicant’s endorsements are extreme and out-of-keeping with the nature of her accident, treatment, and passage of time.³² Dr. Koepfler concluded that the applicant had grossly magnified her symptoms in comparison to the previous assessment and her complaints were not credible.³³ Finally she noted that the functional and physical limitations endorsed were excessive based on her presentation, and that her motivational barriers prompted her to focus on her symptoms and limitations rather than her abilities and improvements.³⁴

28I place greater persuasive value on the reports provided by Dr. Koepfler when I compare the Psychological Assessments tendered. Over the course of two assessments, she administered fourteen different sets of psychometric tests. She was provided updated clinical notes and records, including the Psychological Assessment conducted by Ms. Zhukova and Ms. Kozina. Dr. Koepfler identified inconsistencies in the applicant’s self-reporting, specifically when and if she attended classes at Excellent Academy. Dr. Koepfler did not amend her previous findings regarding the NEB test but described an applicant that so grossly magnified her symptoms that her complaints were no longer credible.

29I place less weight on the Psychological Assessment Report provided by the Ms. Zhukova and Ms. Kozina for a number of reasons. First, it contains factual inaccuracies related to the accident. Second, it appears this assessment was based wholly on the clinical interview, the administration of psychological tests, and a feedback interview. It is not apparent that any of the clinical notes or treatment records were reviewed in preparation of this report. Finally, the reports related to the applicant’s functional impairments and activities of daily living are based wholly on the applicant’s self reporting. There was no mechanism to verify or compare the reductions in the applicant’s performance of chores, self-care, social life, or driving in her post-accident life. Nor was there even mention of the NEB at issue or the complete inability threshold.

30The applicant relies on the Preliminary Catastrophic Impairment Rating Report provided by Dr. Z. (Marc) Marciniak, a Sports Medicine and Rehabilitation Specialist in his report dated December 9, 2020. The applicant complained of headaches, neck pain, shoulder pain, right arm and wrist pain, lower back pain, and depressed moods.³⁵ During the examination, the applicant reported that she was unable to participate in pre-accident activities like going to the movies, attend dinners, participate in sports, walk, jog, go to the gym, or swim due to the injuries sustained in the accident. She also experienced difficulties with housekeeping and homemaking chores including cleaning, lawncare, shopping, and getting dressed.³⁶ Dr. Marciniak concluded that she suffered significant accident-related impairments to her lumbar spine including stenosis, disc problems, neural foraminal stenosis and that the post-traumatic degenerative changes are considered permanent.³⁷ His summary was based on the whole person impairment test pursuant to a catastrophic impairment diagnosis. There was otherwise no commentary regarding the applicant’s pre-accident activities and no mention of the NEB threshold.

31The respondent relies on the Musculoskeletal IE Report provided by Dr. Mark Goldstein, General Practitioner, dated July 3, 2019. The applicant reported pain in her cervical spine, lower back pain, and left ankle pain.³⁸ She indicated she was fully independent prior to the accident, but now was unable to do laundry, vacuum, mop, clean the bathroom. She could now only make small meals and make her bed with discomfort. Although she was independent with her self-care and able to go out with friends, she had not returned to the gym.³⁹ Following a physical examination, Dr. Goldstein diagnosed her with cervical spine sprain/strain and lumbar spine sprain/strain. Specific to the NEB claim, Dr. Goldstein found no functional impairments that would contribute to any significant inability to perform her regular pre-accident life activities.⁴⁰

32Dr. Goldstein provided four additional Musculoskeletal IE Reports related to OCF-18s at issue. He did not provide any additional commentary or diagnoses related to the claim for NEB. However, in his final report dated April 23, 2021, in relation to the claim for a chronic pain assessment, he noted that the applicant was suffering from chronic neck and chronic lower back pain.⁴¹ He further noted these impairments were likely permanent, as more than two years had elapsed without a resolution of symptoms.⁴²

33I prefer the report of Dr. Goldstein over Dr. Marciniak, as it is the only report regarding the applicant’s physical functional impairments and the NEB threshold as it relates to the applicant’s pre-accident life activities. Clearly Dr. Marciniak’s report was focused on whether the applicant sustained a catastrophic impairment, which is not at issue in this application.

34Finally, when I consider the totality of the evidence tendered in relation to the claim for NEB, I am simply not persuaded the applicant has established she suffered an impairment that continuously prevented her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. The applicant failed to identify what period of time she engaged in her pre-accident activities, the frequency, and time commitments in which she engaged in these activities. There simply was insufficient evidence to establish a comparison between these pre-accident and post-accident activities. The applicant’s case was also weakened by key inconsistencies in her evidence, like whether she was employed or attending classes prior to the accident and attempts to magnify her symptoms as demonstrated in Dr. Koepfler’s second report. Aside from the OCF-3s provided, the applicant provided no expert opinions that indicated she suffered from a complete inability pursuant to the NEB threshold. As a result, the applicants claim for a non-earner benefit is denied.

The Attendant Care Assessment

35I am not persuaded the attendant care assessment in the amount of $1,995.55 is reasonable and necessary pursuant to the Schedule.

36In 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 this assessment is reasonable and necessary.

37I place weight upon the IE Musculoskeletal Report by Dr. Goldstein, dated October 6, 2020, in which the applicant stated she was able to perform her self-care routine, albeit slowly.⁴³ This also accords with the applicant’s own statement taken on August 15, 2018 which indicated she remained independent with her personal care post-accident.⁴⁴ Additionally, I place weight upon the Occupational Therapy Assessment provided by Atul Kaul, Occupational Therapist dated July 3, 2019. During that assessment, it was noted the applicant was independent with dressing, grooming, bathing, and toileting.⁴⁵ It was also noted that no intervention was required for meal preparation, washing dishes, kitchen cleaning, laundry, bedmaking, floorcare, dusting, bathroom cleaning, grocery shopping, and garbage removal.⁴⁶

38I place less weight upon the Attendant Care Needs Report tendered by the applicant, provided by Occupational Therapist Varun Madan following the assessment conducted October 10, 2020. Pursuant to this assessment, the applicant refused to complete portions of the testing related to range of motion, specifically related to her thoracic and lumbar spine. Similarly, the applicant declined key portions of the assessment designed to test her balance, kneeling and squatting, climbing stairs, lifting or carrying, and bending, yet Mr. Madan recommended she should continue rehabilitation treatment and task assistance was recommended, without assessing these abilities⁴⁷

39Based on the strength of the respondent’s expert reports and the applicant’s own statement, I am not persuaded the attendant care assessment is reasonable and necessary pursuant to the Schedule.

Psychotherapy Treatment

40I am not persuaded the psychotherapy treatment in the amount of $3,841.09 is reasonable and necessary pursuant to the Schedule.

41Sections 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. Again, the applicant bears the onus of providing that any OCF-18 in dispute is reasonable and necessary on a balance of probabilities.

42I have already indicated that I assign no weight to the Cardan and Showraki assessment reports, given inherent issues with their reliability. These brief reports pre-dated the accident, and specifically lacked comprehensiveness, providing no evidence that psychometric testing had taken place, nor that the applicant’s medical history reviewed prior to diagnoses being rendered.

43Similarly, I have already indicated above that I placed lesser weight on the Psychological Assessment Report provided by Ms. Zhukova, and Ms. Kozina, Psychologist, dated July 12, 2020. This is because it was not discernable that the assessors had reviewed any of the clinical notes or treatment records. They diagnosed the applicant with other specified trauma and stressor related disorder, adjustment like disorder with prolonged duration, specific phobia, situational type and features of post-traumatic stress disorder.⁴⁸

44Otherwise, the applicant relies on a single sentence in the conclusion of Dr. Marciniak’s Preliminary Catastrophic Impairment Rating Report. Specifically, he stated that the applicant had psychological problems prior to the accident which were treatable, and “now she is much worse”.⁴⁹ I place no weight upon this sentence at the conclusion of Dr. Marciniak’s report, as a sports medicine specialist, psychological diagnoses are beyond the scope of his practice.

45In her second Psychological Assessment Report dated November 13, 2020, Dr. Koepfler specifically stated that this treatment was not reasonable and necessary. Following the clinical interview, a review of the updated clinical notes and records (including the applicant’s Psychological Assessment Report), and psychological testing, she opined that the treatment at issue was not essential for the treatment of her accident-related injuries. This was particularly due to the incongruence between the nature of the accident, the applicant’s self-reported injuries, treatment, the passage of time, her poor performance on the validity testing and her tendency to magnify difficulties.⁵⁰

46In considering the evidence with regard to this treatment plan, I place the most weight upon Dr. Koepfler’s second report dated November 13, 2020. Thus, I am not persuaded the psychotherapy treatment at issue is reasonable or necessary pursuant to the Schedule.

Chronic Pain Assessment

47I am satisfied that the chronic pain assessment in the amount of $2,200.00 is reasonable and necessary pursuant to the Schedule.

48In response to this OCF-18, the respondent’s own assessor, Dr. Goldstein in his Musculoskeletal Paper Review dated November 3, 2020, provided a diagnosis of accident-related impairments, including chronic neck pain and chronic low back pain. He deferred further comment until he could review the notes of Dr. Karmy and Dr. Rosen, pain specialists who previously treated the applicant.⁵¹

49In a Musculoskeletal Addendum Report dated April 23, 2021, and following the review of the outstanding records, Dr. Goldstein indicated the applicant suffers range of motion impairments in the lumbar spine. These structural impairments remain relative to chronic pain, muscular deconditioning, cervical spine sprain/strain and lumbar spine sprain/strain. He opined that these impairments were likely permanent, as over two years had elapsed without a resolution of symptoms.⁵² However, he concluded that the chronic pain assessment at issue was not reasonable and necessary, as this was a duplication of services, given the applicant had already had two separate consultations with Dr. Karmy and Dr. Rosen, both pain specialists.⁵³

50The applicant submits, that these were brief consultations provided by OHIP-funded physicians, and no comprehensive chronic pain treatment plan was ever provided as part of the applicant’s recovery process. This was to address her lower back pain and degenerative disc disease. I agree with the applicant.

51Upon review of the brief Consultation Report by Dr. Dima Rozen, Pain Specialist, dated January 29, 2020, the applicant underwent one course of lumbar epidural steroid injections with peripheral nerve blocks. These injections were to treat the applicant’s reported lower back and left lower extremity pain.⁵⁴ However, the applicant later reported to Dr. Goldstein during his Musculoskeletal Assessment on October 6, 2020 that the injections were not helpful in managing her pain and she did not plan to return.⁵⁵

52In the brief Consultation Report by Dr. Grigory Karmy, Pain Specialist, dated July 13, 2020, the assessor indicated that his impression of the applicant’s post-accident pain included mechanical neck, shoulder and back pain with left sciatica. The applicant was not interested in further injections, but he provided her a prescription for Lyrica, 75 mg on a trial basis and encouraged further investigations and treatment.⁵⁶ However, on October 6, 2020, the applicant reported to Dr. Goldstein that she had failed to fill this prescription.⁵⁷

53Given Dr. Goldstein’s diagnoses of accident-related chronic neck and back pain, and the brevity of both consultations with Dr. Rozen and Dr. Karmy, I am persuaded that the OCF-18 at issue is reasonable and necessary in the circumstances. I am of the opinion that the applicant would benefit from a comprehensive chronic pain assessment which includes potential treatment options for her accident-related pain. Thus, this OCF-18 is reasonable and necessary.

Award

54Section 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.

55It 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 pursuant to Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

56I find that the applicant is not entitled to an award in this matter. The majority of the benefits in dispute have been denied. The reason for denying the chronic pain assessment was due to a potential duplication in pain treatment following consultations with Dr. Rozen and Dr. Karmy. I do not find this denial or the respondent’s actions otherwise rose to the threshold of excessive, imprudent, stubborn, inflexible, unyielding or immoderate. As a result, the applicant is not entitled to an award pursuant to Regulation 664.

Interest

57The applicant is only entitled to applicable interest pursuant to the cost of the chronic pain assessment, in the amount of $2,200.00 pursuant to s. 51 of the Schedule.

ORDER

58I find that:

i. The applicant is not entitled to a non-earner benefit;

ii. The applicant is not entitled to an attendant care assessment in the amount of $1,995.55;

iii. The applicant is not entitled to psychiatric treatment in the amount of $3,841.09;

iv. The applicant is entitled to a chronic pain assessment in the amount of $2,200.00, plus interest; and

v. The applicant is not entitled to an award pursuant to s. 10 of Regulation 664;

Footnotes

1. 1Applicant’s Book of Documents dated April 26, 2021, Clinical Notes and Records of Dr. Majid Fanipour, August 13, 2018, Tab 2.
2. 2Applicant’s Book of Documents dated April 26, 2021, Clinical Notes and Records of Dr. Majid Fanipour, Hitek Medical Imaging, August 14, 2018, Tab 2.
3. 3Applicant’s Book of Documents dated May 31, 2021, North York General Magnetic Resonance Imaging Report, October 2, 2018, Tab 3.
4. 416-003195 v State Farm Insurance Company, 2017 CanLII 99136 (ON LAT) at para. 10.
5. 52009 ONCA 391 (“Heath”).
6. 6Ibid. at para. 50.
7. 7Ibid.
8. 816-003141 v Aviva Insurance Canada, 2017 CanLII 46352 (ON LAT) at para. 17.
9. 9Written Submissions of the Respondent, Disability Certificate (OCF-3), August 18, 2018, Tab 6.
10. 10Written Submissions of the Respondent, Disability Certificate (OCF-3), August 21, 2018, Tab 7.
11. 11Written Submissions of the Respondent, Disability Certificate (OCF-3), February 27, 2020, Tab 15.
12. 12Written Submissions of the Respondent, Statement of Samaneh Ahmadi, August 15, 2018, Tab 3.
13. 13Applicant’s Book of Documents dated April 26, 2021, Clinical Notes and Records of Dr. Majid Fanipour, November 29, 2017, Tab 2.
14. 14Applicant’s Book of Documents dated April 26, 2021, Clinical Notes and Records of Dr. Majid Fanipour, March 5, 2020, Tab 15.
15. 15Applicant’s Book of Documents dated April 26, 2021, Assessment of Attendant Care Needs Report by Varun Madan, October 10, 2020, Tab 12.
16. 16Ibid.
17. 17Written Submissions of the Respondent, Occupational Therapy Assessment Report by Atul Kaul, July 3, 2019, Tab 18.
18. 18Ibid.
19. 19Ibid.
20. 20Ibid.
21. 21Ibid.
22. 22Applicant’s Book of Documents dated April 26, 2021, Psychological Assessment Report by Natalia Zhukova and Anna Kozina, July 12, 2020, Tab 19.
23. 23Ibid.
24. 24Ibid.
25. 25Ibid.
26. 26Ibid.
27. 27Written Submissions of the Respondent, Psychological Examination Assessment Report by Dr. Louise Koepfler, July 3, 2019, Tab 2.
28. 28Ibid.
29. 29Ibid.
30. 30Applicant’s Book of Documents dated May 31, 2021, Consultation Report of Dr. Robin Cardan, June 27, 2018, Tab 6.
31. 31Applicant’s Book of Documents dated April 26, 2021, Consultation Report by Dr. Mostafa Showraki, November 29, 2017, Tab 1.
32. 32Written Submissions of the Respondent, Psychological Examination Assessment Report by Dr. Louise Koepfler, November 13, 2020, Tab 17.
33. 33Ibid.
34. 34Ibid.
35. 35Applicant’s Book of Documents dated May 31, 2021, Preliminary Catastrophic Impairment Rating Report by Dr. Z. Marciniak, December 9, 2020, Tab 7.
36. 36Ibid.
37. 37Ibid.
38. 38Written Submissions of the Respondent, Musculoskeletal Examination Report by Dr. Mark Goldstein, July 3, 2019, Tab 16.
39. 39Ibid.
40. 40Ibid.
41. 41Written Submissions of the Respondent, Musculoskeletal Addendum Report by Dr. Mark Goldstein, April 23, 2021, Tab 31.
42. 42Ibid.
43. 43Written Submissions of the Respondent, Musculoskeletal Assessment Report by Dr. Mark Goldstein, October 6, 2020, Tab 24.
44. 44Written Submissions of the Respondent, Statement of Samaneh Ahmadi, August 15, 2018, Tab 3.
45. 45Written Submissions of the Respondent, Occupational Therapy Assessment Report by Atul Kaul, July 3, 2019, Tab 18.
46. 46Ibid.
47. 47Applicant’s Book of Documents dated April 26, 2021, Assessment of Attendant Care Needs Report by Varun Madan, October 10, 2020, Tab 12.
48. 48Applicant’s Book of Documents dated April 26, 2021, Psychological Assessment Report by Natalia Zhukova and Anna Kozina, July 12, 2020, Tab 19.
49. 49Applicant’s Book of Documents dated May 31, 2021, Preliminary Catastrophic Impairment Rating Report by Dr. Z. Marciniak, December 9, 2020, Tab 7.
50. 50Written Submissions of the Respondent, Psychological Examination Assessment Report by Dr. Louise Koepfler, November 13, 2020, Tab 17.
51. 51Written Submissions of the Respondent, Musculoskeletal Paper Review by Dr. Mark Goldstein, November 3, 2020, Tab 30.
52. 52Written Submissions of the Respondent, Musculoskeletal Addendum by Dr. Mark Goldstein, April 23, 2021, Tab 31.
53. 53Ibid.
54. 54Applicant’s Book of Documents dated April 26, 2021, Consultation Report by Dr. Dima Rozen, January 29, 2020, Tab 4.
55. 55Written Submissions of the Respondent, Musculoskeletal Assessment Report by Dr. Mark Goldstein, October 6, 2020, Tab 24.
56. 56Applicant’s Book of Documents dated April 26, 2021, Consultation Report from Karmy Chronic Pain Medical Clinic, July 13, 2020, Tab 20.
57. 57Written Submissions of the Respondent, Musculoskeletal Assessment Report by Dr. Mark Goldstein, October 6, 2020, Tab 24.