Al-Nakeeb v. Aviva General Insurance Company, 2023 CanLII 1444

Citation: Al-Nakeeb v. Aviva General Insurance Company, 2023 ONLAT 20-010473/AABS

Licence Appeal Tribunal File Number: 20-010473/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:

Ayat Al-Nakeeb

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Sofia Ahmad

APPEARANCES:

For the Applicant: Moninder Khattra, Counsel

For the Respondent: Hooman Zadegan, Counsel

HEARD: By Way of Written Submission

BACKGROUND

1Ms. Ayat Al-Nakeeb, the applicant was involved in an automobile accident on July 27, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2On July 27, 2017, Ms. Al-Nakeeb was the operator of her 2008 Dodge Journey with her daughter as a passenger. Her vehicle was at the intersection of Lakeshore and Long branch. As traffic was beginning to move, Ms. Al-Nakeeb’s car was rear-ended, which in turn caused her to strike the vehicle in front of her. The air bags were deployed and her vehicle was written off as a result of this accident.

3The respondent, Aviva General Insurance Company, characterized the applicant’s injuries as predominantly minor and subject to the Minor Injury Guideline (“MIG”) $3,500.00 funding limit.

4The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

5The following issues are in dispute:

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 limit and in the Minor Injury Guideline (“MIG”)?

ii. If the applicant’s injuries are not considered to be predominantly minor,

a. Is the applicant entitled to a medical benefit in the amount of $2,600.00 for chiropractic services recommended by Pain Rehabilitation Clinic in a treatment plan (“OCF-18”) dated September 18, 2018?

b. Is the applicant entitled to a medical benefit in the amount of $2,600.00 for physiotherapy services recommended by Pain Rehabilitation Clinic in an OCF-18 dated May 2, 2019?

c. Is the applicant entitled to the cost of a Disability Certificate (“OCF-3”) in the amount of $200.00 dated October 3, 2018?

d. Is the applicant entitled to the cost of a second OCF-3 in the amount of $200.00 dated May 2, 2019?

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

RESULT

6I find:

i. The applicant has not suffered a minor injury as defined under the MIG and, therefore, she is not subject to the $3,500.00 MIG funding limit;

ii. The applicant is entitled to a medical benefit of $2,600.00 for chiropractic treatment as that treatment plan is reasonable and necessary;

iii. The applicant is entitled to a medical benefit of $2,600.00 for physiotherapy treatment as that treatment plan is reasonable and necessary;

iv. The applicant is entitled to the cost of the OCF-3 in the amount of $200.00;

v. The applicant is entitled to the cost of a second OCF-3 in the amount of $200.00; and

vi. The applicant is entitled to interest in accordance with the Schedule.

ANALYSIS

7The respondent made the following observations about the applicant and the accident:

a. The applicant lied during her examination under oath on March 1, 2018, in relation to not having returned to work since the accident;

b. The applicant was prone to embellishments;

c. The applicant had pre-existing medical conditions of depression and anxiety, and there may possibly have been an issue with the applicant’s thyroid;

d. The applicant was not transported to hospital post-accident;

e. The day after the accident, when the applicant visited her doctor, she complained of shoulder joints pain, but not anything that would be indicative of a tear in one of her shoulders;

f. The applicant failed to mention her dilated veins (varicose veins) to the assessor; and

g. The applicant was receiving medication pre-accident for headaches;

8The respondent cites FSCO decisions of State Farm and Sabadash and Allstate and Mohammed, related to the “but for” test, and that the applicant must prove that her injuries or symptoms were caused by the accident.

9The respondent relies on two section 44 Medical Physician reports of Dr. Alan Kruger, dated February 23 and March 1, of 2018. The reports state that the applicant suffered only uncomplicated soft tissue injuries because of the accident, and that the applicant did not suffer impairment as a direct result of the accident.

10The applicant made submissions citing the following:

a. The applicant’s vehicle was rear ended and air bags deployed;

b. The applicant attended her family physician’s office the day after the accident and complained of neck, shoulder, back and leg pain;

c. The applicant attended pain rehabilitation clinics;

d. According to the applicant’s family physician, pre-existing headaches of the applicant became chronic post-accident;

e. The Independent Examination of the Neurologist of March 1, 2018, diagnosed the applicant with chronic post traumatic headaches;

f. The applicant complained of pain in her right shoulder and a September 17, 2018 ultrasound revealed a tear in the tendon of that shoulder; and

g. The Independent Examination report of the Psychologist who diagnosed the applicant with an Adjustment Disorder, Phobias (passenger) and an Insomnia Disorder, all of which originated with the accident.

11The applicant cites 18-005777 vs. Northbridge Personal Insurance Corporation, an Ontario LAT case, where if “…chronic pain, if established, removes a claimant from the MIG…”. As well the applicant cites another Ontario LAT case of P.S. v Wawanesa to say that because her complaints of pain and psychological issues were well beyond 3 to 6 months, this made her ailments “chronic”.

The Minor Injury Guideline (“MIG”)

12The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule 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.” The terms “strain,” “sprain,” “subluxation,” and whiplash associated disorder are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.

13Section 18(2) of the Schedule states that the MIG does not apply to an insured person if her health practitioner determines and provides compelling evidence that the insured has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent her from achieving maximal recovery (“MMR”) from the minor injury if she is subject to the limit or is limited to the goods and services authorized under the MIG.

14The applicant bears the onus to establish her entitlement to coverage beyond the $3,500.00 cap for minor injuries on a balance of probabilities.

15The applicant submits that as a result of the accident she was diagnosed with chronic pain and psychological impairments, and these are not minor injuries within the definition of the MIG. Therefore, she submits, she should not be confined to the treatment limit of the MIG.

Chronic pain and the MIG

16For the following reasons, I find that the applicant has proven on a balance of probabilities that she suffers chronic pain as a result of the accident, thus removing her from the MIG treatment limits.

17For chronic pain to take someone out of the MIG, there must be an effect on their functionality. There is sufficient medical evidence that the applicant’s accident-related injuries have had a detrimental impact on her functionality. I am satisfied she has established to what extent a chronic pain condition, be it chronic pain syndrome or a chronicity of symptoms, has affected her functionality. This finding is supported by medical evidence that establishes the applicant’s functionality is impaired and that her chronic pain is the cause of the disability.

18The applicant’s family physician Dr. Ali Al-Hellawi prescribed the narcotic pain medication Tylenol #3 (acetaminophen 300mg with codeine 30mg) only after the accident.¹ There is no record of the applicant taking this pain medication prior to the accident.

19Dr. Ali Al-Hellawi in his notes of September 12, 2017 mentions that the applicant’s pain has not improved with the use of Tylenol #3.² He also indicated that the applicant had muscle spasms.³

20The applicant started taking Robaxacet,⁴ the combination pain (acetaminophen 325mg) and muscle relaxant (methocarbamol 400mg) to address these muscle spasms. The applicant does not have a medical history of muscle spasms prior to the motor vehicle accident, (“MVA”).

21Meloxicam, an anti-inflammatory and analgesic medication was added to help address the applicant’s chronic pain which was not sufficiently addressed with the narcotic pain medication Tylenol #3 post accident.⁵

22Prior to the date of the accident there is no mention of neck, shoulder joints, or lower back pain in Dr. Ali Al-Hellawi’s notes. Post accident, in the following year, there were four visits to Dr. Ali Al-Hellawi’s office, that referenced pain and or anxiety,⁶ as follows:

i. On July 28, 2017, the day following the accident, she reports headache, neck pain, shoulder joint pain, low back pain, and leg pain;

ii. On September 12, 2017, she reports muscle spasms, and pain has not improved with Tylenol #3;

iii. On May 9, 2018, her anti-depressant, Cipralex, is increased to 20mg from 10mg pre-accident; and

iv. On August 15, 2018, she reports neck pain, back pain, joints pain, muscle pain, spasms, depressed mood, anxiety and decreased sleep.

23The respondent made issue of the applicant failing to disclose the existence of her varicose veins. There is no indication of the applicant’s bilateral varicose veins causing her to have leg pain related to the accident. In a report dated November 14, 2017, Dr. H. H. Au, a vascular surgeon, in a report to Dr. Ali Al-Hellawi states that the applicant’s “medical health remains stable”.⁷ This seems to be a cosmetic issue which is unrelated to the subject accident.

24The day after the accident the applicant complained of bilateral joint pain in her shoulders to Dr. Ali Al-Hellawi. The applicant is not a health care professional and would not know the difference between joint pain and a tear of the tendon.

25The ultrasound from Victoria Terrace X-Ray and Ultrasound was completed 14 months after the accident. The ultrasound indicated an intrasubstance tear of the subscapularis tendon of the right shoulder.⁸ It is only after the accident are there reports of shoulder pain, and for a tear to occur there needs to be a significant amount of force applied suddenly, such as in a motor vehicle collision. On a balance of probabilities, I am persuaded that this tear is a result of the motor vehicle accident.

26The respondent submits video surveillance showing the applicant driving around town, dropping off her daughter at school and driving to work. The applicant is seen shopping, pushing a grocery cart and cleaning snow off her vehicle in the winter.⁹

27This video surveillance shows the applicant being active on trips outside of her home. It does not provide evidence that the applicant was not experiencing any pain as she participated in these activities. It also does not provide evidence that contradicts the self-reports she made to the various physicians and therapists who conducted assessments. The respondent has already removed the applicant’s income replacement benefits (“IRB”) as a result of the video surveillance and that is not being contested by the applicant in her submissions.

28The respondent’s Insurer’s Examination (“IE”) assessor, Dr. B. Connolly, a neurologist, during the Neurology Assessment on March 1, 2018 diagnosed the applicant’s chronic post-traumatic headaches as a direct result of the motor vehicle accident.¹⁰

29Dr. Connolly’s conclusion is that “if she has not had the accident she would not be experiencing the current level of impaired function since she has been using analgesics frequently due to her accident-related pain.”¹¹ Dr. Connolly diagnosed the applicant with chronic post-traumatic headaches.

30The Tribunal has in previous cases adopted the approach of assessing an applicant’s claim of chronic pain against the six criteria described in the American Medical Association Guides (“AMA Guides”)¹², which state that at least three of the following criteria must be met for a diagnosis:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident including anxiety, fear-avoidance, depression, or nonorganic illness behaviours;

31The Tribunal has repeatedly adopted the approach of assessing an applicant’s claim of chronic pain against the six criteria of the AMA Guides. For the purposes of this hearing, I am adopting the AMA Guides criteria for diagnosing chronic pain. I am persuaded, the applicant meets the AMA Guide’s criteria for having chronic pain, based on the following:

i. In the IE, Dr. B. Connolly, acknowledges a level of impaired function in the applicant post accident;

ii. The applicant used multiple medications to deal with pain months after the accident, from narcotics to anti-inflammatory medications;

iii. The applicant has been seeing a psychiatrist Dr. Mohammed El-Saidi post accident:

2. Dr. Mohammed El-Saidi reports that the applicant among other things has lost her appetite and lost weight, but is now gaining;¹³and

3. Dr. Mohammed El-Saidi diagnosed the applicant with major depressive disorder post accident;¹⁴ In other words, the accident caused the MDD.

iv. The IE report of the Psychologist, Dr. Moshiri notes that the applicant has developed an Adjustment Disorder, Phobias (passenger) and an Insomnia Disorder, all of which originated with the accident.

32Given the report of the IE, Dr. Connolly, who acknowledges a level of impaired functionality since the accident, an actual tear of a shoulder tendon found post accident, and the application of the AMA Guide’s criteria with respect to chronic pain. I am persuaded that the applicant has chronic pain as a result of the MVA. This warrants removal from the MIG. The applicant should not be subject to the $3,500.00 limit.

33The only reason that benefits were not paid, was because the applicant was deemed to have fallen within the MIG. I am persuaded that the applicant has demonstrated that removal from the MIG is warranted. The treatment plans are reasonable and necessary.

34I am persuaded that the treatment plans are reasonable and necessary.

35The applicant has suffered from chronic pain since the subject accident. This has been well documented in the medical records of several physicians, hospital records, imaging reports and the respondent’s own insurer examination reports. Ongoing treatment is necessary for the applicant in order for her to achieve maximal medical recovery and the MIG limit of $3,500.00 limits her ability to do so.

36I am persuaded the treatment goals are reasonable. The goals for treatment are to reduce pain, increase strength and increase range of motion and reduction of the chronic pain diagnosis. Both physical therapy and chiropractic treatment are reasonable.

37I am persuaded that the treatment goals are being met, as the applicant is attending treatment regularly. In F.P. v Aviva (16-002861/AABS), the Applicant suffered from chronic pain and Adjudicator Treksler stated that “Treatment that reduces or manages the applicant’s pain is a practical objective” and that he is “of the view that the goal for treatment for this applicant should be pain relief and reduction given his chronic pain diagnosis.”21 The same reasoning should be applied in this case as well.

38I am persuaded the overall costs of achieving these goals are reasonable.

The Disability Certificates

39The applicant submitted the first OCF-3 to show an update on the condition of the applicant and the injuries and symptoms that she continued to experience as a result of the subject motor vehicle accident.

40The applicant submitted a second OCF-3 to add an additional injury, a sprain and strain of the elbow. The applicant updated her initial disability certificate as her condition worsened. This is acceptable as the Disability Certificate is a way for the applicant to update the respondent on their condition and advise them which injuries continue to persist as well as any new injuries that may have arisen as result of the subject motor vehicle accident.

Interest

41The applicant is entitled to applicable interest on any incurred treatment pursuant to s.51 of the Schedule.

CONCLUSION AND ORDER

42I find that:

i. The applicant has not suffered a minor injury as defined under the MIG and therefore, she is not subject to the $3,500.00 MIG funding limit.

ii. The applicant is entitled to a medical benefit in the amount of $2,600.00 for chiropractic services as that treatment plan is reasonable and necessary;

iii. The applicant is entitled to a medical benefit in the amount of $2,600.00 for physiotherapy services as that treatment is reasonable and necessary;

iv. The applicant is entitled to the cost of a Disability Certificate in the amount of $200.00 (OCF-3);

v. The applicant is entitled to the cost of a second Disability Certificate in the amount of $200.00 (OCF-3); and

vi. The applicant is entitled to interest in accordance with the Schedule.

Footnotes

1. 1Applicant’s Submission, Tab B, Clinical Notes and Records of Dr. Ali Al-Hellawi, dated July 28, 2017
2. 2Applicant’s Submission, Tab B, Clinical Notes and Records of Dr. Ali Al-Hellawi, dated September 12, 2017
3. 3Ibid.
4. 4Applicant Submission, Tab C, Clinical Notes and Records of Dr. B. Connolly, dated March 1, 2018
5. 5Applicant Submission, Tab B, Clinical Notes and Records of Dr. Ali Al-Hellawi, dated September 12, 2017
6. 6Applicant Submission, Tab B, Clinical Notes and Records of Dr. Ali Al-Hellawi, dated from July 27, 2017 to August 15, 2018
7. 7Respondent Submisssion, Tab E, document 134, Report of Dr. H.H. Au, Vascular Surgeon, dated November 14, 2017
8. 8Applicant’s Submission, Tab F, Imaging report of Victoria Terrace X-Ray and Ultrasound, dated September 17, 2018
9. 9Respondent Submission, Tab D, Surveillance Report of Northwood and Associates
10. 10Applicant’s Submission Tab C Insurer’s Examination Neurology Assessment, by Dr. B. Connolly, a Neurologist, February 13, 2018
11. 11Ibid.
12. 12American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.
13. 13Applicant’s Submission, Tab I, Report of Dr. Mohammed El-Saidi, Psychiatrist, report of April 11, 2019
14. 14Ibid.