Licence Appeal Tribunal File Number: 21-012527/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:
Chamoun Zomaya
Applicant
and
Wawanesa Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Maziar Mortezaei, Counsel
For the Respondent:
Symone Marlowe, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Chamoun Zomaya, the applicant, was involved in an automobile accident on January 5, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Wawanesa Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute 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 Minor Injury Guideline limit?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 5, 2018 and on going?
iii. Is the applicant entitled to $3,262.40 for physiotherapy services, proposed by Downsview Healthcare in a treatment plan (“OCF-18”) submitted on May 22, 2020?
iv. Is the applicant entitled to $1,670.81 for an attendant care assessment, proposed by Downsview Healthcare in an OCF-18 submitted on August 25, 2020?
v. Is the applicant entitled to $2,000.00 for a psychological examination, proposed by Downsview Healthcare in an OCF-18 submitted on October 13, 2020?
vi. Is the applicant entitled to $3,285.98 for psychological services, proposed by Downsview Healthcare in an OCF-18 submitted on May 7, 2021?
vii. Is the applicant entitled to $2,192.90 for physiotherapy services, proposed by Downsview Healthcare in an OCF-18 submitted on September 21, 2021?
viii. Is the applicant entitled to $1,000.00 for OCF-3 and OCF-18 completion fees submitted on May 18, 2020?
ix. Is the applicant entitled to $400.00 for OCF-18 completion fees submitted on August 20, 2021?
x. Is the applicant entitled to interest on any overdue payment of benefits?
xi. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3I find that:
i. The applicant has not met his onus to prove that his accident-related impairments warrant removal from the MIG;
ii. The applicant is not entitled to the treatment plans in dispute, form completion fees or interest;
iii. The applicant is not entitled to payment of a non-earner benefit for the period in dispute;
iv. The applicant is not entitled to an award.
PROCEDURAL ISSUE
4The applicant in his submissions has included two new issues in dispute to be added to this written hearing, which had not been listed in the case conference report and order dated October 14, 2022 (“CCRO”). An OCF-18 for chiropractic services in the amount of $2,847.20, submitted on July 14, 2021 and an OCF-18 for a psychological assessment in the amount of $2,175.91, submitted on August 26, 2021. I deny the applicant’s request to include these new issues in dispute at this late stage.
5In his submissions the applicant notes that these new issues are to be added on consent. However, he does not direct me to any evidence that the respondent consented to the addition of these treatment plans. Rather, in its submissions, the respondent notes that the issues in dispute in this written hearing are as identified in the CCRO.
6The applicant has not provided any evidence or submissions to explain why these two treatment plans were being raised for the first time in his written submissions and what steps had been taken to bring this issue to the respondent’s attention. He has provided no evidence or submissions as to any efforts that had been made to notify the Tribunal about the additional issues. Given the late stage in the proceedings and the potential prejudice to the respondent, I deny the applicant’s request to include the additional treatment plans in dispute.
ANALYSIS
Minor Injury Guideline
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. 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.”
8An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
9The applicant submits that he should be removed from the MIG on the basis of his chronic pain, psychological impairments and pre-existing impairments.
The applicant has not established accident-related chronic pain warranting removal from the MIG
10The applicant submits that he has consistently been diagnosed with chronic pain by his family physician Dr. Malik in the years post-accident, particularly back pain, neck and right shoulder pain and headaches. He argues that Dr. Malik has prescribed pain medication, including narcotics such as Hydromorph Contin, on an ongoing basis to address his chronic pain. As a result of this severe and ongoing pain, the applicant submits that he is completely unable to work or engage in his caregiving and housekeeping activities. Although the applicant acknowledges that he suffered from chronic back and neck pain pre-accident, he argues that his pain had been well-controlled with pain medication, until it was exacerbated by the subject accident.
11The respondent disputes that the subject accident has caused or exacerbated the applicant’s chronic pain. It argues that the applicant’s chronic pain complaints preceded the subject accident, and did not change post-accident. Rather, the respondent contends that the clinical notes and records (“CNRs”) of Dr. Malik establish that the applicant had been suffering from back and neck pain as a result of a prior 2012 accident, and that his pain complaints did not change after the subject accident.
12I agree with the respondent that the applicant has not established that the subject accident caused, or exacerbated his chronic pain. The CNRs of Dr. Malik indicate that prior to the January 5, 2018 accident, the applicant was suffering from chronic neck and back pain stemming from his 2012 MVA. Throughout 2017, Dr. Malik reported the applicant’s ongoing pain complaints, and prescribed the narcotic Hydromorph Contin to help alleviate the applicant’s pain. Two months before the subject accident, on November 8, 2017, Dr. Malik had to increase the dosage of the narcotic, as the applicant insisted that it was needed to allow him to function better. The applicant reported to numerous assessors that he had been unable to work since his 2012 accident, and had been receiving ODSP payments.
13I do not find that the applicant’s pain reports changed significantly post-accident. Although the applicant submits that Dr. Malik diagnosed him with back, neck and right shoulder pain “caused by the accident”, I find that this is not supported by the medical record. The OCF-3 prepared by Dr. Malik on March 23, 2018, only lists injury to the right shoulder and headaches as impairments that were caused by the accident. Rather, Dr. Malik noted that the applicant suffered from chronic back pain since 2012. Although the applicant reported some right shoulder pain and neck pain in the period post-accident, the only reference to chronic pain in Dr. Malik’s CNRs relates to his back pain.
14However, the applicant does not direct me to any CNR entry indicating that this chronic back pain was exacerbated by the subject accident. In the May 24, 2018 CNR entry, Dr. Malik notes that the applicant’s chronic back pain continued to be stable with medication, that his pain was well-controlled and that he was functioning “the same”. Although the applicant submits that post-accident he was prescribed prescription pain medication for his chronic pain, the medical record establishes that he was similarly using narcotics prior to the January 5, 2018 accident. I further note that the respondent’s physiatry IE assessor Dr. Saad Naaman noted that the impairments within the initial 4-6 weeks after the subject accident were accident-related. However, he opined that impairments beyond that time-frame would be pre-existing complaints.
15With respect to functional limitations, I similarly find that the applicant has not established that the subject accident caused his present restrictions. The applicant points to his reports to various assessors and the CNRs of Dr. Malik in the years post-accident, which note that the applicant was unable to work, care for his children or engage in housekeeping, due to his chronic pain. However, I agree with the respondent that the applicant had been reporting such functional restrictions prior to the subject accident. Finally, with respect to the applicant’s reports of ongoing headaches post-accident, the respondent relies on its insurer’s examination (“IE”) assessment of Dr. Kucher, neurologist. Dr. Kucher found that the applicant’s headache complaints fit the criteria for medication overuse headaches. The applicant has not provided any medical opinion to rebut Dr. Kucher’s analysis.
16As such, I find that the applicant has not established accident-related chronic pain warranting removal from the MIG.
The applicant has not established accident-related psychological impairments warranting removal from the MIG
17The applicant submits that as a result of the accident, he has sustained psychological impairments. To establish his claim, he relies on the s. 25 psychological assessment report of Dr. Jacqueline Brunshaw, dated December 30, 2020, who diagnosed the applicant with adjustment disorder, with mixed anxiety and depressed mood, and specific phobia (passenger). The applicant further argues that Dr. Malik diagnosed him with stress, driving anxiety, persistent anxiety, and depression, as a result of the subject accident.
18I agree with the respondent that the CNRs of Dr. Malik do not establish that the applicant sustained psychological impairments as a result of the subject accident. Although the applicant attended at Dr. Malik’s office frequently, he does not direct me to any CNR entry evidencing that he reported psychological symptoms in the first three years post-accident.
19The first report of psychological complaints the applicant references was three years after the accident, on January 12, 2021. The applicant reported that in November 2020, he had fallen on his left side, injuring his left shoulder. He complained of pain in his left shoulder, that he could not sleep and that “he started to feel depressed”. The applicant reported to Dr. Malik that he had taken Effexor that he had at home, and felt better. Although Dr. Malik references Effexor and supportive counselling in the plan of care, the applicant does not direct me to any other CNR entry indicating that the applicant continued to report such symptoms or that he sought ongoing treatment. Moreover, the January 12, 2021 entry does not establish that the depression symptoms were accident-related.
20The only other report of psychological symptoms the applicant directs me to, is an October 12, 2022 CNR entry where the applicant reported to Dr. Malik that he “has some increased stress since the MVA” related to driving. Dr. Malik noted that the applicant had “some anxiety driving”. Given that this self-report was more than four years post-accident and the applicant does not direct me to any prior or subsequent report of anxiety to Dr. Malik, I do not find that it substantiates a claim of accident-related psychological impairments warranting removal from the MIG.
21Further, I find Dr. Brunshaw’s s. 25 psychological assessment to be of limited persuasive value. In providing her report, she did not appear to have reviewed Dr. Malik’s CNRs and as such, did not have a fulsome understanding of the applicant’s medical history. Her report dated December 30, 2020, was prepared during the only period that the applicant reported depressive symptoms to Dr. Malik, although as previously noted, this appeared to stem from his November 2020 fall on his left side. I note that in her report, the applicant’s highest pain reports related to his left shoulder, which were not accident-related. Although Dr. Brunshaw acknowledged the applicant’s pre-accident impairments, she noted that the applicant reported that prior to the subject accident he was able to function well on a daily basis and that he felt emotionally fine at the time of the subject accident. However, I find that this is not corroborated by Dr. Malik’s CNRs.
22As such, I agree with the respondent that the applicant has not established that he has sustained psychological impairments as a result of the subject accident, warranting removal from the MIG.
The applicant has not established a pre-existing condition that would prevent maximal recovery under the MIG
23The applicant submits that his pre-accident depression and chronic pain warrant removal from the MIG.
24With respect to the applicant’s argument that his pre-existing depression warrants removal from the MIG, I find that he has led sufficient evidence to establish that he suffered from pre-existing depression. The pre-accident CNRs of Dr. Malik do not contain references to a diagnosis of depression. Although the applicant reported to the respondent’s IE assessors that he had suffered depression as a result of the 2012 accident, he has not directed me to any formal pre-accident diagnosis or evidence of treatment. Moreover, the applicant reported to his s. 25 assessor Dr. Brunshaw, that after the 2012 accident, he had attended psychological counselling for six months and reported that he was “emotionally fine” at the time of the subject accident.
25Further, although the applicant has led sufficient evidence of his pre-accident chronic back pain, he has not met the additional requirement under s. 18(2) of the Schedule. Namely, the applicant has not provided sufficient medical evidence from a treating medical practitioner that acknowledges that this pre-accident chronic pain impacted on his ability to achieve maximum medical recovery under the MIG. As previously noted, the applicant has not established that the subject accident exacerbated the chronic pain stemming from his 2012 MVA.
26Moreover, the applicant does not direct me to any opinion from Dr. Malik that such chronic back pain affected his ability to recover within MIG limits. Rather the respondent’s physiatry IE assessor Dr. Naaman considered the applicant’s pre-accident injuries and opined that the past medical history would not prevent maximal recovery within the MIG. The applicant does not direct me to any medical evidence to rebut Dr. Naaman’s opinion.
27Given the foregoing, I find that the applicant has not established that his pre-existing medical conditions warrant removal from the MIG.
28The applicant sustained a minor injury as defined in the Schedule and is subject to the MIG and the $3,500.00 funding limit on treatment. The respondent has submitted that the full MIG limit has been reached, and the applicant has not provided any evidence to the contrary. Given that I have determined the applicant’s impairments are subject to the MIG and the $3,500.00 funding limit on medical and rehabilitation benefits, an analysis of whether these OCF-18s in dispute are reasonable and necessary is unwarranted.
29However, as an alternative argument, the applicant submits that the OCF-18s in dispute are payable, due to the respondent’s non-compliance with the requirements of s. 38 of the Schedule. He argues that for all of the treatment plans in dispute, the respondent has failed to provide denials that are specific, meaningful and accurate reasons based on the applicant’s medical condition, in contravention of s. 38(8).
30I find that the applicant has not established that the respondent was non-compliant with s. 38(8). The applicant has provided limited submissions on the issue of s. 38(8). He does not direct me to any specific language contained in the various denial notices that he finds lacking. Rather, he provides the general submission that the respondent failed to provide meaningful and accurate explanations based on the applicant’s medical condition. I disagree. Upon review of the correspondence, I find that the respondent provided medical reasons for the denials, and that the reasons why the respondent was denying the OCF-18s were clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Without specific submissions and arguments as to the particular language that the applicant disputes, I find that he has not established that the denial notices are non-compliant with s. 38(8).
Non-earner benefits (“NEB”)
31I find that the applicant has failed to prove on a balance of probabilities that he suffers from a complete inability to carry on a normal life, as a result of the subject accident.
32Section 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, focuses on a comparison of the applicant’s pre- and post-accident activities.
33I find that the applicant has not established that as a result of accident, he is continuously prevented from engaging in his pre-accident activities. The medical record establishes that prior to the subject accident, the applicant was severely limited in a majority of his daily activities due to his 2012 MVA. The OCF-3 prepared by Dr. Malik noted that at the time of the accident, the applicant had been suffering from chronic back pain since 2012 and was very limited in his ability to do household chores for his children and himself. In a November 13, 2015 letter from his occupational therapist, it was reported that due to his impairments from his 2012 accident, the applicant was unable to lift, carry or run after his child and as such, he was limited in his ability to provide caregiving for his daughter.
34In a July 20, 2017 CNR entry, Dr. Malik noted that the applicant’s chronic pain was somewhat controlled with medication, but that he was still having trouble functioning with his activities of daily living and still could not work. The last CNR entry pre-accident, on November 8, 2017, indicated that the applicant had been taking more than the prescribed amount of narcotics in order to function better with ADLs, causing Dr. Malik to increase the dosage.
35I agree with the respondent that the applicant’s ability to engage in pre-accident activities, did not substantially change as a result of the subject accident. Although the applicant points to a CNR entry dated November 21, 2018 where Dr. Malik noted that the applicant’s “wife does all of the work at home and cares for the children”, I note that Dr. Malik does not opine that this was a recent development. Rather, in a May 24, 2018 entry, Dr. Malik notes that the applicant continued to experience chronic back pain, that his pain was well controlled and stable with medication, that he was functioning “the same” and that his wife still had to help him. Dr. Malik reported in a number of visits post-accident, that the applicant’s pain was well-controlled and that he was functioning well with his ADLs.
36Finally, all of the respondent’s IE assessors opined that the applicant did not suffer a complete inability to carry on a normal life. Ms. Rebecca Oatman, occupational therapist, found that the applicant demonstrated sufficient mobility, range of motion, strength and psychosocial functions to resume his pre-accident activities of daily living. Dr. Naaman noted that the applicant was independent with some of his ADLs and that he did not suffer a complete inability to lead a normal life. I find that IE assessors’ findings are supported by the medical record. As such, I find that the applicant has not established entitlement to an NEB for the period in dispute.
Interest and Award
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have determined that no payment is owing, the applicant is not entitled to interest as a result.
38Pursuant to s. 10 of Regulation 664, the applicant is only entitled to an award if the respondent unreasonably withheld or delayed payment of a benefit. In this case, the applicant has not established that the respondent acted unreasonably in withholding or delaying payment and so, is not entitled to an award.
ORDER
39For the reasons outlined above, I find that:
i. The applicant’s injuries fall within the MIG;
ii. The applicant is not entitled to the OCF-18s in dispute, form completion fees or interest;
iii. The applicant is not entitled to a non-earner benefit for the period in dispute; and
iv. The respondent is not liable to pay an award under Regulation 664.
v. The application is dismissed.
Released: November 24, 2023
Ulana Pahuta
Adjudicator