Citation: Behboudimoghaddam v. BelairDirect Insurance Company, 2023 ONLAT 22-002576/AABS

Licence Appeal Tribunal File Number: 22-002576/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:

Effat Behboudimoghaddam

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bonnie Oakes Charron

APPEARANCES:

For the Applicant:

Ramy Akladios, Counsel

For the Respondent:

Mikal Daniel, Counsel

HEARD: In Writing

OVERVIEW

1Effat Behboudimoghaddam, the applicant, was involved in an automobile accident on October 11, 2020, 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, Belair 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 of 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 (“MIG”) limit?

ii. Is the applicant entitled to $2,907.01 for a chronic pain assessment proposed by Elite Specialist Group Inc. in a treatment plan/OCF-18 (“the plan”) dated December 9, 2021?

iii. Is the respondent liable to pay an award under s. 10 under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

v. Is the respondent entitled to costs pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules “Rules”?

3By way of written submissions, the respondent requested that costs be added to the issues in dispute pursuant to Rule 19.1 of the Rules. Given that the respondent submitted the request in accordance with the Rules, I have added costs to the issues in dispute.

RESULT

4The applicant has not met her burden to prove that treatment beyond the MIG is warranted.

5The applicant is not entitled to the treatment plan. Since no benefits are payable, no interest is owed.

6The applicant is not entitled to an award.

7The respondent is not entitled to costs.

ANALYSIS

The Minor Injury Guideline

8Section 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.”

9An 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 before the accident, they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant submits that her injuries from the accident should be treated outside the MIG because of a pre-existing condition (neck and back pain), chronic pain and a sleep disorder. She relies on the clinical notes and records (“CNRs”) of her general practitioner (“GP”) Dr. Mohammady, medical documentation from the Toronto Pain and Headache Clinic (“TPHC”), and the s. 25 report of Dr. Benmoftah.

11The respondent submits that there is no compelling medical evidence that the applicant has a relevant pre-existing medical condition, meets the criteria of a chronic pain diagnosis or has a psychological impairment. It relies on documentation from the applicant’s medical history as well as the s. 44 report of Dr. Choi, GP.

The applicant’s injuries are minor as defined by the Schedule.

12I find that the applicant’s injuries are minor as defined by the Schedule.

13The applicant submits that following the accident she had pain in her neck, back, head, and both shoulders. The respondent argues that this assertion is not supported by the medical evidence. The CNRs of her GP Dr. Mohammady reveal that she made no mention of the accident, or any injuries, at an appointment on October 20, 2020, nine days after the accident. The first mention of the accident is over two months later at an appointment on December 10, 2020, where her GP recorded back and neck pain due to a motor vehicle accident. Dr. Mohammady made a referral for x-rays and the imaging results revealed no fracture or subluxation but did find degenerative disc disease in her spine. The applicant was also prescribed acetaminophen, although the respondent correctly points out that this same prescription was already in use prior to the accident, for her osteoarthritis. Although the applicant made three more visits to her GP that month, there is no further mention in the associated CNRs of the motor vehicle accident.

14The following year, the applicant attended the TPHC where Dr. Ho wrote an OCF-3 on July 7, 2021. The disability certificate identified only minor injuries including sprain and strain of spine and pelvis, and neck pain.

15The respondent points to the following gap in the applicant’s medical evidence and argues that there is a lack of clarity about her ongoing symptoms after the accident. On December 10, 2021, over a year after the accident, Dr. Mohammady wrote a note “to whom it may concern” dated December 10, 2021, indicating that the applicant had a motor vehicle accident on October 11, 2020, and due to worsening back pain had to do multiple physiotherapy treatments. The note does not offer any details about what physiotherapy was needed or where the treatment was obtained. It is unclear for what purpose or to whom this note is directed. There is a recommendation for physiotherapy from Dr. Mohammady dated October 23, 2021. However, the CNRs reference osteoarthritis, not the accident. Thus, I agree with the respondent that the connection between physiotherapy and the medical note that references the subject accident, is unclear.

16In any case, the applicant went on to undergo two assessments in 2022: a s. 44 assessment on February 4, 2022, with Dr. Choi, GP, and a s. 25 assessment on March 2, 2022, with Dr. Benmoftah, orthopedic surgeon. The two assessors arrived at much different conclusions. Dr. Choi found that the applicant suffered soft tissue injuries, albeit layered over degenerative changes in her spine. He opined that the applicant was treatable within the MIG. In contrast, Dr. Benmoftah diagnosed Chronic Pain Disorder with functional limitation, among other things, and recommended that the applicant pursue a chronic pain program at a cost of $15,000.00 to $20,000.00. Despite their difference of opinion about chronic pain, neither assessor found evidence of any other injury from the accident that would fall outside of the definition of minor.

17With the exception of a chronic pain diagnosis which I will address below, none of Drs. Mohammady, Benmoftah, Ho or Choi document any injury, as a direct result of the accident, that does not fall within the definition of minor.

Pre-existing medical condition

18I find that the applicant has not demonstrated that a pre-existing medical condition prevents her maximal medical recovery if limited to the MIG.

19The applicant submits that her neck and back pain pre-date the accident. She points to her attendance at the TPHC for treatment to address knee, back and neck pain as well as headaches. She further submits that her back pain was worsened by the accident and became severe. The treatments at the clinic prior to the accident focussed primarily on her knee pain although the applicant referenced a fall in 2015 in which she injured her back. This is noted on her intake forms which indicate that there was a “personal injury”.

20At her s. 25 assessment with Dr. Benmoftah, the applicant reported ongoing neck, back and shoulder pain. Dr. Benmoftah’s examination recorded limited range of motion and tenderness in the spine. His report also documented the applicant’s self-reports of functional limitations with regard to lifting, carrying, pushing and pulling with difficulty to twist, bend, sit, stand, and walk.

21The respondent points out that there was no treatment underway at the time of the accident for any of these complaints and that the TPHC focussed primarily on knee pain, not neck and back. I agree with the respondent there is no compelling medical evidence to indicate that her pre-accident pain would prevent recovery within the MIG. The evidence shows that she was receiving both physiotherapy and prescription treatments in the years prior to the accident, but there is no significant change in her condition, or her treatment, pre- and post-accident.

22Consequently, the applicant has not demonstrated that she has a pre-existing medical condition that necessitates treatment outside of the MIG.

Chronic pain

23I am not persuaded that the applicant has chronic pain with a functional impairment as a result of the accident.

24The applicant submits that she has consistently reported pain in multiple areas of her body and has obtained a diagnosis of Chronic Pain Disorder. Despite this argument, there is no reference in her GP’s CNRs to suggest the applicant suffers from chronic pain, nor a referral to a chronic pain specialist for treatment. Dr. Ho from the TPHC also does not mention chronic pain in the OCF-23 and OCF-3 authored at the clinic.

25The respondent submits that the applicant’s health situation and myriad of complaints are unconnected to the accident but due to other life events such as her age, history of falls, unrelated medical issues, and other incidents. Further, it asserts that despite a diagnosis of Chronic Pain Disorder from Dr. Benmoftah, his s. 25 report is not compliant with the Licence Appeal Tribunal’s Rules. The report does not contain an Expert Duty Acknowledgement as required by Rule 10.2, does not reference or address the issues in dispute, nor outline in any detail the assessor’s education, training and experience as a practitioner in the field of chronic pain. Rather, the main focus of Dr. Benmoftah’s practice is orthopedic surgery.

26Nevertheless, the applicant does not refer to Dr. Benmoftah as an expert witness or the report as an expert opinion. For this reason, I will not exclude the report completely but will not consider it as expert evidence in support of the applicant’s claim.

27At the s. 25 assessment for chronic pain, Dr. Benmoftah diagnosed Chronic Pain Disorder, symptoms of depression and anxiety, post-traumatic insomnia, and fatigue. As previously outlined, his report also documented some functional limitations such as requiring assistance at home and with personal care.

28Aside from its non-compliance with Rule 10.2, I give Dr. Benmoftah’s report less weight for the following reasons: his findings are contrary to those of other treatment providers, his diagnosis is unclear, and the focus of his practice is other than chronic pain.

29With regard to contrary findings, Dr. Ho approximately six months earlier had recorded in her OCF-3 that the applicant does not suffer from an inability to perform housekeeping. Despite this, Dr. Benmoftah finds that the applicant requires assistance with both personal care and housekeeping.

30For the diagnosis, Dr. Benmoftah comments that “Chronic Pain Syndrome” has interfered with her day to day living and she has not reached maximal medical recovery. Despite a guarded prognosis, he recommends treatment in a chronic pain program at a cost that would be outside of the MIG limit. His use of two different terms – first “Chronic Pain Disorder” in his diagnosis and later “Chronic Pain Syndrome” in his commentary – leaves me with a lack of clarity about what has been diagnosed.

31Lastly, Dr. Benmoftah has extensive credentials and qualifications as an orthopedic surgeon. However, he is not a chronic pain specialist and is not registered as such according to the “Assessor’s Credentials and Qualifications” section of his report. His practice of chronic pain management at the Jacob Pain Centre appears to be secondary to his main practice as an orthopedic surgeon.

32The applicant has failed to demonstrate that she has chronic pain with a functional impairment that requires treatment outside of the MIG. Apart from Dr. Benmoftah, whose report I give less weight for the reasons outlined above, no other healthcare provider validates a finding of chronic pain.

Psychological Impairment

33I find that the applicant has not met her onus to prove she suffered an accident-related psychological impairment.

34The applicant submits that she suffered a psychological impairment after the accident. Dr. Benmoftah recorded sleep disturbance and mood disorder with feelings of nervousness, depression, and anxiety at the s. 25 assessment. The applicant points to these symptoms as evidence of her pain and trauma from the accident. In answer, the respondent highlighted the applicant’s 2018 sleep apnea diagnosis from Dr. Rahimi and underlined her prescription history that documents anti-depressant medication use, well before the accident in 2019.

35I agree with the respondent that the evidence of Dr. Rahimi’s diagnosis and the applicant’s prescription history confirm that the applicant had both sleep issues and depression prior to the accident. Further, there is nothing to suggest that either of these issues increased after the accident or were severe enough to lead to a psychological impairment that requires treatment outside of the MIG.

Conclusion

36In my view, the applicant has not met her onus to prove that her injuries warrant removal from the MIG. The applicant does not provide compelling evidence that any pre-existing condition precludes her maximal recovery from any accident-related minor injury. The applicant’s evidence lacks a common or continuous thread uniting the medical evidence from Dr. Mohammady, Dr. Ho, Dr. Benmoftah, and other healthcare providers such as Dr. Rahimi and Dr. Mahmoudi. I would expect the CNRs of the applicant’s primary healthcare provider, in this case her GP, to provide this foundation, but they do not. Dr. Mohommady does not reference chronic pain in her CNRs, did not refer the applicant to a specialist, did not refer her for treatment at the TPHC, and did not complete an OCF-3 at any time.

37For all of these reasons, I find that the applicant’s injuries are properly treatable within the MIG.

The applicant is not entitled to the treatment plan for a chronic pain assessment.

38I find that the applicant is not entitled to the treatment plan for a chronic pain assessment.

39The OCF-18 identifies that the treatment is for a non-minor injury and therefore proposes treatment outside of the MIG. Having found that the applicant’s injuries are properly treatable within the MIG, it is not necessary for me to determine if the plan is reasonable and necessary.

Interest

40As no benefits are overdue, no interest is owed.

Award

41The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

42In written submissions, the applicant takes the position that the respondent acted unreasonably by placing the applicant in the MIG and relying on the opinion of Dr. Choi. The respondent’s position is that the applicant failed to provide the particulars of the award claim within 30 days of receipt of the log notes, in breach of the Case Conference Report and Order (“CCRO”). Consequently, it submits that the award claim should not be considered.

43I accept the argument of the respondent on this point given that the applicant made no reply submissions to counter it. Therefore, I will not consider the special submission on award particulars that the applicant filed with the Tribunal on March 16, 2023. Apart from being provided to the respondent late, it also represents an additional six-page submission to the Tribunal not contemplated by the CCRO. Therefore, the only argument from the applicant for consideration in support of an award are the statements made in her regular written submissions.

44The applicant’s statement that the respondent was unreasonable in limiting her to the MIG and relying on the opinion of Dr. Choi is not persuasive. Given my finding that no benefits are payable, it follows that there were no payments that were unreasonably withheld or delayed.

45As a result, I find that the applicant has not demonstrated entitlement to an award.

Costs

46The respondent requested costs pursuant to Rule 19 for the applicant having made an “unreasonable and frivolous claim” with a clear lack of evidence.

47Although I have determined that the applicant’s injuries are properly treated within the MIG, I did not find any evidence that the claim was unreasonable or frivolous.

48I decline to award costs to the respondent.

ORDER

49The applicant has not met her burden to demonstrate that treatment beyond the MIG is merited. She is not entitled to the disputed treatment plan or interest.

50The applicant is not entitled to an award.

51The respondent is not entitled to costs.