Citation: Mubarak v. Aviva Insurance Company, 2023 ONLAT 21-011633/AABS

Licence Appeal Tribunal File Number: 21-011633/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:

Mohamed Mubarak

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Agal Lankeswaran, Paralegal

For the Respondent:

Lauren Kolarek, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Mohamed Mubarak (the “applicant”) was involved in an automobile accident on May 27, 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 Aviva Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?

2. Is the applicant entitled to $2,164.00 for a chronic pain assessment, proposed by Midland Wellness Centre in a treatment plan/OCF-18 (“OCF-18”) submitted on August 18, 2021, and denied on August 30, 2021?

3. Is the applicant entitled to $2,649.95 for physiotherapy services, proposed by Midland Wellness Centre in an OCF-18 submitted on August 18, 2021, and denied on August 30, 2021?

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

RESULT

3I find that:

i. The applicant’s impairments are predominantly minor and therefore subject to the funding limit of the MIG.

ii. As the MIG funding limit has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.

iii. As no benefits are owing, no interest is payable.

ANALYSIS

The Minor Injury Guideline

4Section 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.”

5An 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 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 condition may warrant removal from the MIG.

6In all cases, the burden of proof lies with the applicant.

7The applicant submits that he should be removed from the MIG on three grounds:

i. He has a pre-existing injury to his mid back which has been aggravated by this accident and has transformed into chronic pain.

ii. He has chronic injuries to his shoulder, neck, hand, elbow, and back; and

iii. He has psychological injuries.

8In response, the respondent submits that the applicant has not met his onus to establish he should be removed from the MIG.

The applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG

10I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing back condition.

11The applicant submits that he has been suffering from mid back pain prior to the accident, that this was aggravated by the accident, and that this is “proven” in the clinical notes and records provided; however, he does not specify which records.

12The respondent submits that there is no evidence of a pre-existing condition that makes treatment within the MIG insufficient. The respondent further submits that the applicant has repeatedly denied a significant history of injuries or impairments.

13I find that the applicant has not met his onus to demonstrate that his pre-existing back condition would preclude his recovery from any accident-related minor injury if he was kept within the MIG limits. While I acknowledge that the applicant submits that his pre-existing mid back condition has transformed into chronic pain following the accident, he has not referred me to specific evidence to support this position.

14Notwithstanding the applicant’s failure to refer me to the evidence to support his position, I have reviewed the evidence provided. In particular, I note that on April 7, 2021, Dr. Michael G. Blackmore, rheumatologist, met with the applicant following a referral from the applicant’s family physician, Dr. Francis Li. Dr. Blackmore conducted a physical examination on the applicant and noted that it appeared that the applicant had a dorsal kyphosis of his cervical spine that was in conjunction with his upper thoracic spine. Moreover, the applicant advised Dr. Blackmore that he has always had this. Dr. Blackmore concluded that the applicant had upper back pain due to his weight and his congenital back problem. However, Dr. Blackmore did not provide a medical opinion of whether the applicant’s pre-existing condition was exacerbated by the subject accident or would preclude his recovery from any accident-related minor injury if he remained subject to the MIG, which is a crucial requirement pursuant to s.18(2) of the Schedule. Accordingly, I find that the applicant has not established that his pre-existing back condition would warrant removal from the MIG.

15I find the applicant has not discharged his evidentiary onus to demonstrate removal from the MIG is warranted on the basis of his pre-existing back condition.

The applicant is not removed from the MIG on the basis of chronic pain

16I find that the applicant has not met his evidentiary onus to demonstrate that he suffers from a chronic pain condition with functional impairments, that would warrant removal from the MIG.

17The applicant submits that he has chronic injuries to his shoulder, neck, hand, elbow, and back as noted in the clinical notes and records of Dr. Li. The applicant further submits that his ongoing symptoms have affected his ability to complete his daily activities.

18The respondent submits that Dr. Li has diagnosed the applicant with minor injuries in relation to the accident. The respondent also submits that the applicant has self-reported that he remained independent with his self-care, and all of his usual housekeeping tasks, and goes to the gym and exercises. To this end, it relies on the s.44 general practitioner assessment reports, dated October 16, 2018, and October 12, 2021, completed by Dr. Pravesh Jugnundan, general practitioner.

19I have not been pointed to evidence that a medical professional diagnosed the applicant with chronic pain. Chronic pain can be established without a formal diagnosis if there is sufficient evidence of ongoing pain, accompanied by functional impairment or disability. Based on the evidence before me, there is nothing to indicate that the applicant suffers a functional impairment as a consequence of accident-related chronic pain. As a result, I conclude that the applicant does not suffer from accident-related chronic pain with a functional impairment.

20The records of Dr. Li are largely illegible and, from the records that can be read, the records do not support the applicant’s position that he was diagnosed with chronic pain injuries as a result of the accident. For example, on May 29, 2018, November 5, 2018, and April 17, 2019, Dr. Li diagnosed the applicant with whiplash injuries to his: neck, elbow, back, arms, and shoulders, which in my view, fit the Schedule’s definition of a “minor injury”. In addition, the applicant also did not refer me to which entry of Dr. Li’s records indicate he was diagnosed with chronic pain, despite his submission that he was.

21The legible records of Dr. Li, also did not indicate the applicant was prescribed pain medication for his accident-related injuries, referred to a chronic pain specialist or note a discussion about chronic pain. From the legible records of Dr. Li, it appears that the applicant has sought medical attention from Dr. Li for his accident-related injuries on three occasions in the last five years, which further weakens the applicant’s claim that he has chronic pain from this accident.

22In my view, Dr. Blackmore’s finding that the applicant’s lower-back and upper back pain is not accident-related is persuasive. While I am alive to the applicant’s submissions that this record should be given little weight because Dr. Blackmore, did not weigh him on a scale and, as such, there is no evidence to support that his back pain is caused by his obesity, I disagree.

23On April 7, 2021, Dr. Blackmore met with the applicant. The applicant advised Dr. Blackmore that he weighed 200 pounds when he was 15 years old and, at the time of the appointment, he weighed 270 pounds and was 5 foot 9. During the physical examination, Dr. Blackmore noted that the applicant had stretch marks all over his body from his weight gain. Following a discussion with the applicant and a physical examination, Dr. Blackmore concluded that the applicant had some upper back pain due to his weight and his congenital back problem. Dr. Blackmore also noted that the applicant had low back spasms and advised him to lose some weight.

24More importantly, Dr. Blackmore did not diagnose the applicant with chronic pain, nor did he attribute the applicant’s pain complaints to this accident. I place significant weight on Dr. Blackmore’s conclusion that the applicant’s upper and low back pain is due to his weight and congenital back pain. Dr. Blackmore made these diagnoses based on the information provided by the applicant and a physical examination. The applicant has also not referred me to a rebutting medical opinion.

25The applicant has also not pointed me to evidence to support his submission that his ongoing pain has prevented him from completing his activities of daily living which included: hygiene tasks, grooming tasks, dressing, sports, sleeping, household chores, and keeping fit.

26Notwithstanding the applicant’s failure to refer me to the evidence to support his position, I have reviewed the evidence provided and find that the evidence does not support that he has functional impairments as a result of his shoulder, neck, hand, elbow, and back pain from this accident.

27In his report dated October 16, 2018, IE assessor Dr. Jugnundan noted that the applicant self-reported that he had not gone to the gym, was slower in his household chores and activities of daily living, had difficulty with sleep due to pain, and that he had not returned to his pre-accident employment as a server. However, Dr. Jugnundan conducted a physical examination which revealed that the applicant had full range of motion in his bilateral shoulders, neck, bilateral elbows, wrists, hands, and knees, and concluded that there was no clinical reason for the applicant to not be able to function at his described occupation.

28On November 5, 2018, the applicant self-reported to Dr. Li that his pain from this accident affected his activities of daily living and he could not return to work. However, Dr. Li did not conduct a physical examination, nor did he provide a medical opinion of whether the applicant had functional limitations as a result of his pain from this accident.

29On January 22, 2019, Dr. M.W. McCutcheon, chiropractor, recommended that the applicant restrict himself from working until his injuries resolved from this accident. I am not persuaded by this note by Dr. McCutcheon, as firstly he did not advise which particular injuries prevented the applicant from working; secondly, the note is outdated; and thirdly, the lack of accident-related complaints to Dr. Li, in my view, demonstrates that the applicant does not have accident-related chronic pain.

30In his subsequent report dated October 12, 2021, Dr. Jugnundan noted that the applicant advised that he had returned to the gym, was independent with his activities of daily living and household chores, albeit he was slower, had returned to work in October 2019, and was enrolled in college to study culinary arts on a full-time basis.

31Given the applicant’s described level of function, I am not satisfied that his pain caused a functional impairment. As noted above, the applicant is independent with his household chores, and activities of daily living, albeit he was slower. He has also returned to work, and the gym. Moreover, the applicant has enrolled in schooling following the accident.

32For the above reasons, I find that the applicant has not established that he suffers from chronic pain with a functional impairment which warrants removal from the MIG.

The applicant has not established that he sustained psychological impairments that warrant removal from the MIG

33I find that the applicant has not led sufficient evidence that he has a psychological impairment that would warrant removal from the MIG.

34Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that he had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.

35The applicant appears to submit that he is entitled to be removed from the MIG because he received a provisional diagnosis of anxiety, and that psychological intervention was recommended. He relies on a s.44 report of Dr. Louise Koepfler, psychologist, dated November 29, 2018, to support his position.

36The respondent submits that Dr. Koepfler did not provide the applicant with a provisional diagnosis of anxiety, nor did she recommend psychological treatment.

37I agree with the respondent. Upon review of Dr. Koepfler’s report, she concluded that the applicant presented with mild symptoms of an adjustment reaction and that there was no indication that the applicant met the threshold for a formal diagnosis of adjustment disorder or phobia. In my view, it is clear that Dr. Koepfler did not diagnose the applicant with anxiety, nor did she recommend psychological treatment for the applicant and, as such, this report does not support a finding that the applicant has a psychological impairment which would warrant removal from the MIG.

38The legible records of Dr. Li also do not support a finding that the applicant has sustained a psychological impairment, as it appears that he has not complained of psychological impairments to Dr. Li.

39As such, I find that the applicant has not demonstrated that he has psychological impairments that warrant removal from the MIG.

The applicant is not entitled to the OCF-18s in dispute as MIG benefits are exhausted

40Given the $3,500.00 funding limit is exhausted, no additional analysis is required to determine if the OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.

The applicant is not entitled to interest pursuant to s. 51 of the Schedule

41Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

42I find that:

a. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG.

b. Given the MIG funding limit has been exhausted, the OCF-18s in dispute are not payable.

c. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

d. The application is dismissed.