Citation: Malik v. Certas Home and Auto, 2023 ONLAT 21-000033/AABS

Licence Appeal Tribunal File Number: 21-000033 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:

Maryam Malik

Applicant

v.

Certas Home and Auto

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Shamim Fattahi, Counsel

For the Respondent: April Snow, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Maryam Malik, the applicant, was involved in an automobile accident on August 30, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant was denied certain benefits by the respondent, Certas, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,260.00 for an Orthopaedic Assessment proposed by Medex Assessments Inc. (“Medex”) in a treatment plan (“OCF-18”) dated December 28, 2018?

iii. Is the applicant entitled to $2,260.00 for a Drivers Road Evaluation proposed by Medex in an OCF-18 dated January 8, 2019?

iv. Is the applicant entitled to $1,248.60 for a Home Modifications/Assistive Devices proposed by Medex in an OCF-18 dated January 16, 2019?

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

RESULT

3I find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. As such, the treatment plans in dispute are not payable and no interest is payable.

ANALYSIS

4The applicant was in a motor vehicle accident on August 30, 2018. The applicant did not lose consciousness, she exited her vehicle independently and did not seek any immediate medical care. The applicant argues that she should be removed from the MIG on the basis of the extent of her physical injuries, as well as because she argues she suffers from psychological injuries and chronic pain as a result of the accident.

Applicability of the Minor Injury Guideline (“MIG”)

5The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder [“WAD”], contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

7An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 MIG cap on a balance of probabilities.

Did the applicant suffer physical injuries that warrant removal from the MIG?

9I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of a physical impairment.

10I do not agree with the applicant’s assertion that her physical impairments justify removal from the MIG. The medical evidence before me, inclusive of clinical notes and records (“CNRs”) of Dr. Sadia Siddiqui and Dr. Adnan Siddiqui, family physician at walk in clinic, reveal that the applicant first sought medical attention three weeks after the subject accident. At the first appointment, Dr. A. Siddiqui opined that the applicant suffered low back, neck and shoulder pain. The applicant submits that she suffers physical pain.

11I agree with the respondent that the applicant’s post-accident treatment record is sparse and unremarkable. The respondent relies on the medical opinion of Dr. Olga Finlayson, neurologist, who found the applicant’s post-traumatic back pain and paranesthesia examination was unremarkable. The EMC and neurological examinations were also unremarkable, with no evidence of peripheral neuropathy, compressive mononeuropathy, or cervical or lumbosacral radiculopathy.

12In my view, the medical evidence is sparse to demonstrate that the applicant should be removed from the MIG as a result of a physical impairment. Absent compelling medical evidence, I find that the applicant’s injuries fall squarely within the definition of a minor injury as defined by section 3(1) of the Schedule and therefore, I find that the applicant’s physical injuries do not warrant a removal from the MIG.

Did the applicant suffer psychological injuries that warrant the removal from the MIG?

13I find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.

14I do not agree with the applicant’s assertion that her psychological impairments justify removal from the MIG. The applicant relies on the treatment and assessment plan (“OCF-18”) completed by Dr. Zack Cerovsky, psychologist, and Mr. Michael Sabayle, occupational therapist. The OCF-18 provides that the applicant has mood disturbances, in the form of depression, anxiety and irritability. The applicant also relies on the CNRs of Dr. S. Siddiqui that capture the applicant’s self-reporting of flashbacks, poor sleep and post-traumatic stress from the accident.

15The respondent submits that the evidence that the applicant relies on to support a psychological impairment listed by Mr. Sabayle in the OCF-18 are beyond his scope of occupational therapy practice.

16The respondent also argues that Dr. S. Siddiqui’s CNRs make no mention that the applicant suffered a psychological impairment supporting a psychiatric diagnosis as a result of the accident. Other than providing contact information of a psychologist, Dr. Siddiqui did not make a referral to a psychologist. The Tribunal has not been directed to any other notations of psychological concerns from the applicant’s physician nor other medical practitioners who may have treated the applicant on an ongoing basis in order to support the applicant’s position that she has a psychological injury that would take her out of the MIG.

17After reviewing the evidence, I agree with the respondent. There is no evidence before me that the applicant received any psychological treatment or a formal psychological diagnosis that would remove her from the MIG.

18I find the applicant has not presented compelling evidence that she sustained a psychological impairment as a result of the accident. The lack of psychological complaints in the CNRs of her physicians and the lack of a referral are at odds with the OCF-18 completed by Dr. Zack Cerovsky, furthermore an OCF-18 is not medical evidence. Accordingly, I find that there is no corroborating evidence of an accident-related psychological condition or impairment to warrant removal from the MIG.

19As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological impairment that would warrant her removal from the MIG.

Chronic Pain

20I find the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

21In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects her day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae from her soft tissue injuries.

22I do not agree with the applicant’s position that because she remains in pain, she now suffers from chronic pain because of the accident. Although the applicant references chronic pain, after considering the evidence before me, I find that there is no evidence of any impairment on the applicant’s functionality nor a diagnosis of chronic pain. The applicant did not provide medical evidence that her accident-related injuries had a detrimental impact on her functionality.

23The medical evidence provided by the applicant was the OCF-18 completed by Dr. Joseph Kwok, physician, and Mr. Sabayle, who opined that the applicant has neck, back, shoulder, right arm, right hip, right knee, and right leg pain. A review of the CNRs of the physician providing care to the applicant makes mention of shoulder pain, but it is silent on chronic pain, with no referral to a chronic pain specialist, nor a specific diagnosis of chronic pain syndrome or condition. Furthermore, the applicant provided no medical evidence of a pre-existing chronic pain condition.

24The applicant also failed to refer to the six criteria laid out in the American Medical Association Guides (“AMA Guides”). The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims in the absence of a diagnosis.

25I agree with the respondent’s submissions that the AMA Guides are not met, because the applicant has not used prescription medication beyond the recommended duration, she has not received assistance with her housekeeping tasks and there is no evidence before the Tribunal to support that she is not independent with her self-care tasks, or that she remains off work.

26The evidence as presented demonstrates that the mere presence of pain is not sufficient for a finding of chronic pain. As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain because of the accident that warrants removal from the MIG.

INTEREST

27Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

28The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The treatment plans in dispute are not payable; and

iii. The applicant is not entitled to interest.