Licence Appeal Tribunal File Number: 21-001158/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:
Keyvan Mohebbi
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Ian Miller, Counsel
For the Respondent: Tom Yen, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant, Keyvan Mohebbi (“K.M.”), was involved in an automobile accident on December 14, 2018, and sought various benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The claimed benefits were denied on the basis that Allstate determined that he sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (the “MIG”). K.M. applied to the Tribunal for resolution of the dispute.
ISSUES
2The following issues are in dispute:
a. Are K.M.’s injuries predominantly minor as defined under s. 3 of the Schedule and therefore subject to a $3,500.00 treatment limit under the MIG?
b. Are the medical benefits proposed by 1010 Assessments and 101 Physio reasonable and necessary, as follows:
i. $4,015.12 for an OCF-18 for psychological services, submitted January 17, 2019, and denied February 28, 2019?
ii. $4,015.12 for an OCF-18 for psychological services, submitted August 5, 2019, and denied on September 4, 2019?
iii. $4,240.67 for an OCF-18 for physiotherapy services, submitted January 21, 2019, and denied February 6, 2019?
iv. $3,283.67 for an OCF-18 for chiropractic treatment, submitted November 11, 2019, and denied November 26, 2019?
v. $2,460.00 for an OCF-18 for a psychological assessment, submitted January 17, 2019, and denied February 28, 2019?
vi. $2,460.00 for an OCF-18 for an orthopaedic assessment, denied March 21, 2019?
vii. $2,460.00 for an OCF-18 for a chronic pain assessment, denied on August 7, 2019?
viii. $3,122.08 for an OCF-18 for psychological services, denied August 7, 2019?
ix. $2,460.00 for an OCF-18 for a driving evaluation assessment, denied on October 18, 2019?
c. Is Allstate liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to K.M.?
d. Is K.M. entitled to interest on any overdue payment of benefits?
3In his submissions, and contrary to the Tribunal’s Order, K.M. indicated that he was not disputing all of the benefits listed above. Allstate acknowledged same, however, on reply, K.M. did not confirm or deny that he was only seeking to dispute eight of the 12 issues. For the sake of completeness, I have left all the disputed issues listed. However, having found that K.M. suffered predominantly minor injuries, the complete list of issues being noted, is a moot point.
RESULT
4K.M. has not demonstrated that his accident-related impairments justify removal from the MIG. The MIG limit has not been exhausted, therefore K.M. may seek treatment up to the MIG limits. Interest is payable pursuant to s. 51.
ANALYSIS
Did K.M. suffer predominantly minor injuries as defined under s. 3 of the Schedule?
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
6I find that K.M. has failed to meet his burden to establish that he suffered injuries that are not predominantly minor, as a result of the accident.
7To prove on a balance of probabilities that he should be removed from the MIG, he relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Shakib, a psychological assessment report of Dr. Waxer, a psychological progress report from Dr. Waxer, and a left shoulder ultrasound report. K.M. submits that this medical documentation demonstrates that he suffered injuries as a result of the accident that require treatment beyond the MIG. In addition, K.M.’s position is that his diagnosed psychological impairments are not predominantly minor injuries.
8Allstate submits that K.M.’s physical injuries are captured within the definition of a “minor injury”, and that there is no evidence that he suffers from any accident-related psychological symptomatology. Its position is that there is no evidence that any accident-related impairments warrant removal from the MIG.
Did K.M. suffer physical injuries that would remove him from the MIG?
9I find that K.M. suffered predominantly minor injuries as a result of the accident.
10He first attended his family physician, Dr. Shakib, five days after the accident, to complain of left shoulder, left arm and left elbow pain. I note that this initial visit is the only one at which K.M. directly presents with accident-related pain complaints. The remainder of the CNRs (up to August 10, 2021), are largely silent on any subsequent pain complaints directly related to the accident. While he does complain of right arm pain at a couple of post-accident visits, this appears to be attributed to work, and not the accident.
11The left shoulder ultrasound dated December 27, 2018, notes osteoarthritis in the left shoulder, and a partial thickness tear, which is captured within the MIG. The ultrasound does not support that K.M.’s left shoulder injury requires treatment beyond the MIG.
12Allstate relies on the October 15, 2019 s. 44 physiatry report from Dr. Marchuk in support of its determination that K.M. suffered predominantly minor injuries. On examination, Dr. Marchuk noted active range of motion in the cervical and lumbar spine, the left shoulder and both elbows. Dr. Marchuk diagnosed K.M. with a WAD2 injury, cervicogenic headaches, bilateral shoulder myofascial dysfunction, possible left rotator cuff tear, and elbow myofascial dysfunction. Dr. Marchuk opined that there was no evidence of a pre-existing medical condition that would negatively impact treatment and recovery from his injuries. As such, Dr. Marchuk concluded that K.M. sustained minor injuries that are treatable within the MIG limits.
13I am persuaded by the report of Dr. Marchuk over K.M.’s evidence, because as a physiatrist, Dr. Marchuk has a specialized area of expertise in determining the extent and impact of K.M.’s accident-related physical pain complaints. Further, Dr. Marchuk’s diagnoses are similar to the injuries noted in the OCF-3, which are captured within the minor injury definition under s. 3 of the Schedule. Lastly, K.M. does not rely on any objective evidence that supports he suffered injuries that were not predominantly minor, and the CNRs and diagnostic reporting confirm that his injuries are minor.
14For these reasons, I find that K.M. has not established that his physical injuries as a result of the accident, require treatment beyond the MIG limits.
Did K.M. suffer psychological impairments that would remove him from the MIG?
15I find that K.M. did not suffer an accident-related psychological impairment that would remove him from the MIG.
16In order to be removed from the MIG due to psychological impairments, K.M. must show that he has an actual psychological impairment. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology or clinically significant psychological impairment. This is beyond mere post-accident sequelae. For the reasons that follow, I find that K.M. has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.
17K.M. relies on a February 18, 2019 psychological assessment report from Dr. Waxer, to support that he suffered psychological impairments as a result of the accident. Additionally, he relies on the CNRs of Integrated Psychology Centre, and a July 16, 2019 psychological progress report from Dr. Waxer.
18Regarding Dr. Shakib’s CNRs, I note that the records do not contain any indications that K.M. presented with any psychological complaints. I find it difficult to accept that K.M. would not have made complaints to his main treating practitioner during the same period that he was receiving treatment from Integrated Psychology Centre. Further, there is no evidence that Dr. Shakib made any referrals to a specialist or prescribed pharmacological treatment for any psychological symptomatology.
19K.M. submits that because Dr. Waxer diagnosed him with somatic symptom disorder, his psychological impairments must be found to be outside of the MIG. Dr. Waxer treated K.M., conducting 12 sessions of psychological services. In his July 16, 2019 report, Dr. Waxer noted that K.M. benefitted from treatment, however, he still continues to suffer ongoing impairment which affects his ability to function. K.M.’s position is that Dr. Waxer’s reports should be preferred over that of s. 44 assessor, psychologist, Dr. Mandel. K.M. submits that Dr. Mandel did not review key psychological treatment records, which, may have impacted Dr. Mandel’s assessment conclusion.
20Allstate argues that there is no indication of any psychological injury or sequelae. It submits that Dr. Waxer’s report should be given no weight because there is no evidence that Dr. Waxer was involved in any aspect of conducting the assessment or preparing the report, relying on Rule 10.2(b) of the Tribunal’s Common Rules of Practice & Procedure, which sets out that expert witnesses must complete and sign an Acknowledgement of Expert’s Duty form.
21Allstate points to Dr. Waxer’s report where Lital Grinberg, psychological associate, acknowledges that she practices under the supervision of Dr. Waxer. However, it submits that there are several issues with the report, for example: i) the report is written in the first person, suggesting that Ms. Grinberg, as an unauthorized assessor, conducted the assessment; and ii) there is no indication in the report where it is specified as to what extent Dr. Waxer was involved. It further points to the July 16, 2019 report, done by Dr. Waxer and Fatin Hasan, which also has no indication as to Dr. Waxer’s involvement in preparing the July 2019 report. For these reasons, I place little weight on the reports signed by Dr. Waxer, that contain no evidence of any involvement from Dr. Waxer.
22I prefer the report of Dr. Mandel over those of Dr. Waxer for several reasons. First, K.M. reported to Dr. Mandel that he received psychotherapy from Mr. Hasan only. He further advised Dr. Mandel that he was unaware of any supervisory relationship between Mr. Hasan and Dr. Waxer. Second, K.M. has not directed me to any evidence that Dr. Waxer was directly involved in any aspect of the assessments. Third, I note that Ms. Grinberg did not review any documents in the preparation of her report. In contrast, Dr. Mandel reviewed approximately 30 documents. Lastly, the outcomes of the psychometric testing and the resulting diagnosis are contradictory, specifically:
a. Depression scores were minimal;
b. Anxiety levels were moderate; and
c. Average or minimal scores on the Symptom Checklist and WHODAS Questionnaire.
23Despite these scores, Ms. Grinberg diagnosed K.M. with somatic symptom disorder. I find this conclusion is not supported by the evidence in her report, as noted, because she relied solely on verbal reports from K.M., his answers on testing and her observations. Her conclusion provides little explanation of how she arrived at a diagnosis of somatic symptom disorder with scores that reveal minimal levels of depression and anxiety. Lastly, her lack of review of any documents, especially those of Dr. Shakib, which contain no presentations of accident-related psychological complaints, may have impacted the outcome of her report, similar to K.M.’s allegation about Dr. Mandel’s report.
24K.M. submits that he incurred beneficial treatment from Integrated Psychology Centre. Despite this, I find his self-reporting is contradicted between the reports from Dr. Waxer and Dr. Mandel. His complaints appear supportive of his claims to his own assessors however, the contradiction is evident when comparing the CNRs of Dr. Shakib and Dr. Mandel. As noted above, Dr. Shakib’s CNRs are silent on any psychological complaints, and Dr. Mandel’s conclusion there was a lack of consistent objective information that would suggest that K.M. suffered clinically significant symptoms resulting in a substantial psychological impairment. I find this medical evidence presents a more accurate depiction of K.M.’s actual post-accident psychological well-being; that he suffered post-accident sequelae and not significant psychological impairment.
25Accordingly, I find that K.M. has not established that he should be removed from the MIG as a result of any accident-related psychological impairment.
Are the OCF-18s reasonable and necessary?
26I have determined that K.M. failed to demonstrate that removal from the MIG is justified. The MIG limit has not been exhausted, therefore, K.M. may seek treatment up to the MIG limits. Interest is payable pursuant to s. 51.
AWARD
27Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person was entitled to at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that an insurer has unreasonably withheld or delayed payments.
28Having found that no benefits are payable, it follows that Allstate cannot have been found to have unreasonably withheld or delayed payment of benefits.
29Accordingly, I find that an award is not appropriate.
ORDER
30K.M. suffered predominantly minor injuries that are treatable within the MIG.
31Despite this, the MIG limit is not exhausted. Accordingly, K.M. may be able to seek further treatment for his accident-related impairments, should he decide to.
32K.M. has not established that the disputed OCF-18s are reasonable and necessary.
33K.M.’s application is dismissed.
Released: February 17, 2023
Derek Grant Adjudicator