Citation: Terrazas-Fajardo v. Wawanesa Mutual Insurance Company, 2023 ONLAT 21-003062/AABS

Licence Appeal Tribunal File Number: 21-003062/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:

Pablo Terrazas-Fajardo

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jessica Cavdar

APPEARANCES:

For the Applicant:

Maziar Mortezaei, Counsel

For the Respondent:

James Schmidt, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on March 13, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Is the applicant entitled to a non-earner benefit (“NEB”) from July 24, 2019 to March 13, 2021?

ii. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

iii. Is the applicant entitled to treatment in the amount of $2,456.00 for Chiropractic Services, recommended by Health-Pro Wellness, dated August 6, 2019?

iv. Is the applicant entitled to treatment in the amount of $2,296.14 for Chiropractic Services, recommended by Health-Pro Wellness, dated February 21, 2021?

v. Is the applicant entitled to treatment in the amount of $2,197.29 for a Psychological Assessment recommended by Health-Pro Wellness, dated October 28, 2019?

vi. Is the applicant entitled to interest?

RESULT

3The applicant has failed to establish that he is entitled to a non-earner benefit. The applicant has not demonstrated that his accident-related impairments warrant removal from the Minor Injury Guideline (“MIG”). A review of the treatment plans in dispute is therefore not necessary. No interest is payable.

ANALYSIS

Non-Earner Benefit

4To prove entitlement to a non-earner benefit, an applicant must lead sufficient evidence to demonstrate his complete inability to carry on a normal life as a result of the subject accident. In Heath v. Economical Mutual Insurance Company 2009 ONCA 391, the Ontario Court of Appeal held that “it is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase ‘continuously prevents’ means that a claimant must prove ‘disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.’”

5The applicant submits that he is entitled to a non-earner benefit due to “a myriad of injuries and impairments caused by the accident”. In support of his position, he relies on his OCF-3, family doctor’s records, and a psychological report. The applicant also relies on an ultrasound of his left shoulder that shows bicipital tenosynovitis and fluid in the bicep’s tendon sheath.

6The January 31, 2021 report of psychologist Fahimeh Aghamohseni states that the applicant displays symptoms consistent with adjustment disorder with mixed anxiety and depressed mood; somatic symptom disorder; and vehicular phobia.

7In the clinical notes and records of Dr. Raafat Gindi, dated March 19, 2019, the applicant complained of pain in his neck, lower back, and left shoulder as well as headache. Dr. Gindi diagnosed the applicant with muscle strain. On September 3, 2019, the applicant again reported pain in his left shoulder, neck, and lower back following the accident. Dr. Gindi reported that the applicant said he was attending physiotherapy, which was not helping, and that he was not taking any painkillers. The applicant told Dr. Gindi that his symptoms were worsening with lifting heavy objects because of his job in construction. Dr. Gindi diagnosed the applicant with muscular ache at this visit.

8The applicant submits that these clinical notes and records are evidence of how his continuous pain, physical limitations, especially concentrated at the left shoulder, and psychological impairments have caused him to suffer a complete inability to carry on a normal life.

9In response, the respondent submits that the applicant has not met his burden to prove entitlement to the non-earner benefit because the ultrasound does not speak to non-earner benefit entitlement. The respondent also submits that the OCF-3 is inconsistent with the remainder of the applicant’s health records, including those of Dr. Gindi, the applicant’s family doctor, which state that the applicant has continued to work as a construction worker–which includes heavy-lifting duties–continuously since the accident. The respondent further submits that the applicant continued to work overtime shifts at his construction job. The respondent submits that the applicant’s attendance at his family doctor shows only soft tissue injuries.

10With regard to the applicant’s psychological symptoms and entitlement to non-earner benefits, the respondent relies upon a s. 44 assessment of psychologist Dr. Amena Syed dated January 14, 2020. Dr. Syed wrote that the applicant was still working full time in his pre-accident position as a waterproofer at a construction company, and that he was not suffering from any psychological impairment as a result of the accident. Dr. Syed reported that the applicant’s condition appears to have improved with the natural progression of time. She opined that the applicant did not appear to be significantly impaired psychologically, with little to no indication that he may have any current or active depressive or anxiogenic experience.

11Dr. Syed noted that the applicant indicated that he is not interested or motivated to undergo psychological therapy as he feels his concerns are more physical than they are psychological. The nature and severity of the applicant’s distress, according the Dr. Syed, is below any diagnosable threshold and considered to be subclinical. It is Dr. Syed’s opinion that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as a result of the subject accident, and as such, no further psychological treatment or investigations are warranted for the applicant. Dr. Syed opined that the applicant does not meet the threshold to qualify for a non-earner benefit in this regard.

12The respondent further relies on a January 14, 2020 s. 44 assessment by Dr. Greg Jaroszynski, orthopaedic surgeon. Dr. Jaroszynski wrote that the applicant sustained uncomplicated soft tissue injuries to the cervical and lumbar spine as a result of the subject accident, and that the injuries are expected to heal with or without any specific treatments over the course of eight to 12 weeks.

13Dr. Jaroszynski stated that there was nothing in his assessment to indicate the presence of any musculoskeletal traumatic abnormality in the applicant attributable to the March 13, 2019 accident; that the applicant does not suffer a complete inability to carry on a normal life; and that the applicant requires no further treatments.

14The respondent further relies upon a January 14, 2020 report by Dr. Garry Moddel, neurologist, who opined that the applicant’s neurologic examination is normal and as such, from a neurologic point of view, he is able to engage in substantially all his normal activities.

15I agree with the respondent that the applicant has not led sufficient evidence to demonstrate that he has a complete inability to carry on a normal life as a result of the subject accident. The evidence raised by the applicant, including the January 31, 2021 report of psychologist Ms. Aghamohseni, fails to prove that the applicant is being continuously prevented from engaging in substantially all of his pre-accident activities. Ms. Aghamohseni refers to the applicant’s self-reporting that he is unable to adequately care for his child, attend the gym, or participate in social activities due to his ongoing impairments.

16I prefer the reports of Dr. Syed, Dr. Jaroszynski, and Dr. Moddel, all of which report that the applicant is able to engage in substantially all his normal activities since the accident. Even the clinical notes and records of Dr. Gindi, which the applicant states he is relying upon to prove entitlement to the non-earner benefit, diagnose the applicant with muscular ache and muscle pain, and nothing further. The applicant’s continuous employment as a waterproofer since the time of the accident, in particular, fails to persuade me that he has a complete inability to carry on a normal life. Therefore, I find he is not entitled to a non-earner benefit.

Applicability of the Minor Injury Guideline (“MIG”)

17Section 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 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 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. In all cases, the burden of proof lies with the applicant.

18The applicant submits that he should be removed from the MIG because of the injury to his left shoulder. He further submits that he should be removed from the MIG because of a psychological condition, in that he suffers from significant psychological impairments that adversely affect his daily functioning. Specifically, the applicant submits he suffers from anxiety and feeling useless since the accident; that he has difficulty with household chores and personal care tasks; and that he is unable to adequately care for his young daughter, attend the gym or participate in social activities due to his ongoing impairments. He relies on his OCF-1, OCF-3, the report of Ms. Aghamohseni, and his family doctor’s records to support his removal from the MIG.

19I agree with the respondent in that the applicant’s claim of depression, anxiety, and vehicle phobia should be given little weight because it is self-reported in his own OCF-1 and is inconsistent with other evidence on file. The applicant’s own OCF-3 fails to provide evidence showing a psychological impairment.

20Dr. Gindi’s records indicate soft tissue injuries only, with no mention of psychological complaints. I afford little weight to the evidence of psychologist Ms. Aghamoseni because she failed to review any medical documentation in preparation for her report, including the OCF-3 and the family physician records.

21Further, based on the applicant’s subjective complaints, psychometric testing, and a review of the clinical notes and records, psychologist Dr. Syed found that the applicant did not suffer from any impairment which warranted a psychological diagnosis.

22With respect to the physical injury, the physiatry report of Dr. Jaroszynski states that the applicant suffered from an uncomplicated soft tissue injury as a result of the accident, and had no ongoing identifiable impairment to his musculoskeletal system. The neurology report of Dr. Moddel found no evidence of neurological impairment as a result of the accident.

23I agree with the respondent and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. First, the physical injuries identified are soft tissue injuries only, as reported in the s. 44 reports as well as the applicant’s own family doctor. There is no evidence to support that the injuries fall outside of the s. 3 definition under the Schedule.

24Second, with regard to psychological impairment, I find that the applicant has not met his burden to show that he suffers from a psychological condition as a result of the accident that warrants removal from the MIG. I afford little weight to Ms. Aghamoseni’s report because she failed to review any other medical documentation and relies completely on the applicant’s self-reporting. Her report is also inconsistent with the other medical evidence on file. Further, I find the applicant’s complaints listed in his OCF-1 are self-reported, the OCF-3 does not indicate a psychological impairment, and the applicant has mentioned that he does not see a need for psychological treatment.

25Accordingly, the applicant has not demonstrated on a balance of probabilities that their accident-related impairments warrant removal from the MIG.

26The applicant has not demonstrated that he should be removed from the MIG. Accordingly, an analysis of whether a review of the treatment plans in dispute are reasonable and necessary is not required.

CONCLUSION

27The applicant has not demonstrated entitlement to a non-earner benefit.

28The applicant also has not demonstrated that he sustained impairments as a result of the accident that justify his removal from the MIG. As the applicant’s injuries are predominantly minor injuries, an analysis of the treatment plans in dispute is not required. As no benefits are overdue, no interest is payable. The application is dismissed.