Citation: Ahmadi v. Aviva General Insurance, 2023 ONLAT 21-001407/AABS

Licence Appeal Tribunal File Number: 21-001407/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:

Ab-Wahid Ahmadi

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Rizwan Wancho, Paralegal

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ab-Wahid Ahmadi (“the Applicant”), was involved in an automobile accident on November 1, 2014, and sought benefits from Aviva General Insurance Company (“the Respondent”), 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 the Respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

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

ii. Is the Applicant entitled to a medical benefit in the amount of $2,664.40 for chiropractic services, proposed by Ajax Rehabilitation Centre in a treatment plan (“plan”) dated November 13, 2019?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment, proposed by Ajax Rehabilitation Centre in a plan dated November 25, 2019?

iv. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a physiatry assessment, proposed by Ajax Rehabilitation Centre in a plan dated November 25, 2019?

v. Is the Applicant entitled to a medical benefit in the amount of $3,073.00 for physiotherapy services, proposed by Ajax Rehabilitation Centre in a plan dated August 10, 2020?

vi. Is the Applicant entitled to $65.00 for the cost of clinical notes and records provided by Dr. J. Tohme submitted on January 22, 2021?

vii. Is the Respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?

viii. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant sustained a minor injury as a result of the accident.

4The Applicant is not entitled to the plans in dispute as they propose treatment outside of the MIG.

5The Applicant is not entitled to the cost to produce clinical notes and records.

6No award or interest is payable.

BACKGROUND

7The Applicant was the driver of a vehicle which was struck from behind while stopped at a traffic light. He sought no medical attention at the time of the accident and never mentioned the accident to Dr. J. Thome, family physician, during a visit on November 14, 2014, about two weeks post-accident. However, the Applicant met with Dr. Thome a few days later on November 18, 2014 and complained of right side headache, neck and upper back pain as a result of the accident. Dr. Thome assessed the Applicant, diagnosed him with whiplash, and prescribed physiotherapy, message therapy, and pain medications Vimovo and Flexeril.

8The Applicant returned to Dr. Thome’s office about once a month following the accident. Occasionally for other health issues, but often he complained of accident-related back and neck pain. Dr. Thome continued to prescribe physiotherapy and massage therapy as well as prescription pain medication.

9The Applicant was involved in a subsequent accident on June 24, 2015, whereby the vehicle he was driving was struck from behind by another vehicle that had also been struck from behind by another vehicle. The Applicant reported to Dr. Thome on June 30, 2015, that he lost consciousness in the June 24, 2015 accident and was taken to the hospital for examination. Dr. Thome diagnosed the Applicant with whiplash as a result of the June 24, 2015 accident and reiterated the same recommendations for therapy and prescription mediation. The Applicant stopped working following the June 24, 2015 accident and reference to that accident predominates the Applicant’s complaints listed in Dr. Thome’s clinical notes and record (“CNRs”) from June 2015, onwards. That is, until the Applicant was involved in further motor vehicle accidents on October 8, 2016, August 27, 2017, and November 3, 2018.

ANALYSIS

10The Applicant claims that his injuries as a result of the November 1, 2014 accident are not predominantly a minor injury because he suffered from pre-existing ankle issues, sustained psychological injuries, and developed chronic pain. He submits that he recovered from the injuries sustained in the subsequent accidents and requires the treatment and assessments proposed in the plans in dispute. Lastly, the Applicant submits that the Respondent failed to comply with section 38(8) and 38(10) of the Schedule when it responded to the plans in dispute, thus triggering the consequences set out in section 38(11) of the Schedule.

11The Respondent submits that the Applicant’s injuries fall squarely within the minor injury definition and that the Applicant sustained no psychological injuries as a result of the subject accident. It further submits that its denials are compliant with the Schedule and that, in the event that they are not, the Applicant has not demonstrated that the plans are reasonable and necessary as a result of the subject accident.

12I agree with the Respondent and find that the Applicant’s injuries fall within the minor injury definition. Since he is subject to the MIG, it follows that the Applicant is not entitled to the plans in dispute because they propose goods and services that are not included in the MIG.

Minor Injury Guideline (“MIG”)

13The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

14Section 38(8) of the Schedule provides that the Respondent shall reply to a treatment and assessment plan within 10-busines days of receipt of that plan and provide all the medical and other reasons why it refuses to pay the benefit. Section 38(9) of the Schedule provides that the Respondent must also advise the Applicant if it believes that the MIG applies.

15Pursuant to section 38(11)1 of the Schedule, the Respondent’s failure to comply with section 38(8) and 38(9), preclude it from taking the position that the Applicant sustained an impairment to which the MIG applies, and it must pay for all goods and services incurred during the period starting on the 10^th business day and ending on the day a compliant notice is provided.

The Applicant’s recovery was not impacted by his pre-existing ankle issues

16The Applicant may not be subject to the MIG and the funding limit if he can demonstrate that he suffered from a pre-existing injury, documented by a healthcare practitioner before the accident, that would preclude maximal recovery if subject to the MIG.

17I find no compelling evidence suggesting that the Applicant’s pre-existing ankle issues were worsened by the accident or precluded his recovery within the MIG. Dr. Thome’s CNRs indicate that the Applicant’s ankle issues trace back to a fracture that occurred in 2010, are worse in the winter, and are presently predominantly related to gout. In fact, the Applicant saw Dr. Thome seven times following the accident, without attributing any ankle issues to the accident. Then, nearly a year following the accident, the Applicant first advised Dr. Thome that his ankle was injured in the subject accident. Considering the timeline, I fail to see how the Applicant’s ankle issues impacted his recovery from soft tissue injuries to the neck and back. Additionally, the CNRs from Dr. Thome make no indication that the Applicant’s recovery from his soft-tissue injuries would be impacted by his pre-existing ankle issues. This omission suggests that the Applicant’s pre-existing ankle issues had no impact on his recovery within the MIG.

I find no evidence of an accident-related psychological injury

18Psychological injuries are not included in the minor injury definition and are not subject to the MIG and the $3,500.00 funding limit. The Applicant is not subject to the MIG if he can demonstrate that he sustained an accident-related psychological injury.

19I find that the Applicant’s evidence fails to demonstrate that he suffered a psychological injury as a result of the subject accident. Similar to his complaints of exacerbated ankle issues, there is no evidence in the CNRs of Dr. Thome that indicate a psychological injury. The Applicant made no complaints of a psychological nature to Dr. Thome immediately following the accident. It was only until after he was involved in another, more serious accident, whereby he reported hitting his head and losing consciousness during the event. In fact, Dr. Thome completed a disability certificate dated October 15, 2015, which diagnosed sprain and strain injuries suffered in the June 24, 2015 accident – no psychological symptoms were noted in the document.

20The disability certificate by Dr. S. Padhi, chiropractor, dated November 26, 2014, also fails to identify a psychological injury. The document lists headaches and sprain and strain injuries, which fall within the minor injury definition. Dr. Padhi completed a second disability certificate, dated August 26, 2015, which diagnosed the Applicant was headaches and sprain and strain injuries as a result of the June 24, 2015 accident. Similarly, Dr. Padhi, completed a third disability certificate, dated September 12, 2017, which diagnosed the Applicant with sprain and strain injuries, and no psychological injuries, as a result of an accident on August 27, 2017.

21The evidence demonstrates that the Applicant sustained psychological injuries from subsequent accidents. The psychological assessment report by G. Gronkawska, psychological associate, dated February 9, 2016 attributes the Applicant’s psychological presentation entirely to the accident on June 24, 2015 and not the subject accident.

22The disability certificate by M. Ansari, physiotherapist, dated July 20, 2020, is uncompelling in light of the other evidence. Physiotherapist Ansari diagnosed the Applicant with sprain and strain injuries as well as: headaches, issues with sleep, nervousness, “lifestyle”, chronic pain, and anxiety as a result of the November 1, 2014 accident. This is the only medical document that attributes the Applicant’s current psychological symptoms to the subject accident. However, physiotherapist Ansari is not qualified to diagnose psychological injuries and failed to demonstrate any consideration that the Applicant was involved in several accidents, including one in June 2015 whereby the Applicant reported that he lost consciousness during the event. I am unable to accept physiotherapist Ansari’s opinion as it is outside the scope of a physiotherapist and is provided without any additional explanation.

The Applicant has not demonstrated that he suffers from accident-related chronic pain

23Like psychological injuries, chronic pain conditions are not included in the minor injury definition and are not subject to the MIG. To establish a chronic pain condition, the Applicant should demonstrate that he meets the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6^th Edition (“the AMA Guides”), or, in the alternative, demonstrate that he suffers from ongoing and persistent pain that continuously impacts his functioning.

24I find that the Applicant does not suffer from a chronic pain condition that can be attributed to the subject accident. For example, the July 6, 2019 chronic pain report by Dr. M. A. Zahavi, physician, attributes the Applicant’s presentation on examination to an accident which occurred on August 27, 2017. The same report states that the Applicant continued working full time following the November 1, 2014 accident and indicates that he was functional after that accident. It further notes that he returned to work and was completing heavy household chores prior to the August 27, 2017 accident. There is no mention of the November 1, 2014 accident in this report, but for one note that states that the Applicant had ongoing pain since about 2014. This is insufficient to attribute the Applicant’s current presentation to the subject accident in light of successive accidents in which he reported more serious injuries.

25Similarly, the chronic pain report by Dr. S. J. Wong, physiatrist, dated March 2, 2016 fails to distinguish the subject accident as the cause, or a material cause of the Applicant’s presentation. Dr. Wong states that the Applicant suffers from ongoing myofascial injuries and chronic pain syndrome as a result of accidents on November 1, 2014 and June 22, 2015. I find this conclusion to be unpersuasive considering that the 2015 accident was more severe than the 2014 accident, as the Applicant reported he lost consciousness in the latter accident. Dr. Wong noted that the Applicant continued to work two jobs following the accident and is able to play with his kids and complete light household chores. The impairments identified by Dr. Wong included minor range of motion restrictions in the back and an inability to complete heavy household chores and carry his children for prolonged periods.

26Notably, Dr. Thome’s CNRs do not attribute the Applicant’s chronic pain to the subject accident. In a note dated June 29, 2020, Dr. Thome documents chronic pain as one of the Applicant’s current ailments however, it is not attributed to the subject accident. Dr. Thome noted on July 29, 2020 that the Applicant had “chronic muscle pain following MVA’s”. This is insufficient evidence to conclude that the Applicant suffers from a chronic pain condition as a result of the subject accident, as it attributes the Applicant’s current presentation to multiple events. I am mindful that the Applicant was involved in at least five motor vehicle accidents between 2013 and 2017. Further, the Applicant has presented no compelling opinion that would lead me to conclude that the subject accident materially contributed to his current presentation, particularly in light of the subsequent accidents and the severity of his reported symptoms following the June 24, 2015 accident.

27I prefer the report and opinion of Dr. F. Abuzgaya, orthopaedic surgeon, dated June 16, 2015. Dr. Abuzgaya had the benefit of assessing the Applicant prior to the 2015 accident and concluded there was no objective evidence of any residual musculoskeletal impairment attributable to the injuries sustained in the subject accident. Dr. Abuzgaya found that the Applicant sustained predominantly soft tissue injuries that fell within the minor injury definition. To me, Dr. Abuzgaya’s report and conclusion is particularly persuasive because it is consistent with the Applicant’s self-reports and notations in Dr. Thome’s CNRs.

28Lastly, the Applicant does demonstrate an ongoing functional impairment caused by pain, nor does he meet the criteria in the “the AMA Guides”. The Tribunal has accepted that an ongoing functional impairment caused by pain may be sufficient to find that someone sustained a non-minor injury. However, the Applicant has demonstrated that he suffers no such functional impairment. The Applicant returned to work at two jobs, is independent with his activities of daily living, and is able to complete light household tasks and provide caregiving for his children. Similarly, he does not meet the criteria in the AMA Guides: The Applicant is not dependent on healthcare providers, he has not deconditioned due to disuse or fear-avoidance behaviour, and he continues to work the two jobs he held prior to the accident. While there is evidence that the Applicant has developed psychological sequalae, it is unlikely it is as a result of the subject accident rather than subsequent ones. I am unable to award benefits to the Applicant where it is unlikely that the benefits are sought as a result of the subject accident.

29The treatment and assessment plans in dispute all propose goods and services that fall outside the parameters of the MIG. Having found that the Applicant sustained a minor injury as a result of the accident, it follows that he would not be entitled to benefits outside the MIG and the $3,500.00 funding limit on treatment.

30While I have concluded that the Applicant is not entitled to the plans in dispute because he sustained a minor injury as a result of the accident, he could still be entitled to the treatment and assessment plans in dispute if they fail to comply with the notice requirements outlined in the Schedule.

31As I will explain further, I find that many of the notices indeed fail to comply with the Schedule, but there is no evidence demonstrating that the Applicant incurred any of the goods and services during the period of non-compliance. In light of this, I assessed the treatment plans on the basis of whether the are reasonable and necessary as a result of the subject accident. I conclude that they are not reasonable and necessary as a result of the subject accident.

32The Applicant submits that the Respondent failed to comply with section 38(8) and section 38(9) of the Schedule when it denied the treatment and assessment plans in dispute. He submits that the Respondent failed to advise that it believed the MIG applied and that it failed to give the medical and other reasons for the denial. For some plans, the Applicant submits that he never received any denial from the Respondent. The Respondent submits that the denials are within the timeline prescribed by the Schedule.

33I partly agree with the Applicant and find that the denials failed to comply with section 38(9) of the Schedule because the Respondent never advised the Applicant that it believed he sustained a minor injury for which the MIG applies. While the denials refer to a minor injury claim, they fail to expressly state that it believes the Applicant sustained a minor injury. Thus, the remedy in section 38(11) of the Schedule is engaged – the Respondent is not permitted to deny the benefit on the basis that the MIG applies, and the Applicant is entitled to payment for the goods and services incurred, starting on the 11^th business day following submission of the treatment and assessment plan, until a proper denial is provided.

34However, the Applicant has not demonstrated that he incurred the goods and services during the period of non-compliance. Thus, from a statutory perspective, I am unable to find that he is entitled to anything related to the treatment and assessment plans. I must then assess the treatment plans on the basis of whether they are reasonable and necessary.

35I find that the Applicant has not met his onus to demonstrate that the treatment and assessment plans are reasonable and necessary as a result of the subject accident. As noted previously, the Applicant was involved in several motor vehicle accidents following the subject accident. Moreover, the injuries reported by the Applicant following the June 24, 2015 accident are significant and raise a reasonable level of doubt as to the cause of the Applicant’s impairments at the time this treatment plan was submitted. The Applicant has failed to adequately address the cause of his current presentation and connect it to the subject accident, rather than the multiple subsequent accidents. As explained earlier, the bulk of the Applicant’s evidence indicates that his injuries are attributed to the June 24, 2015 accident rather than the November 1, 2014 accident.

$65.00 for the production of clinical notes and records

36The Applicant submits that the Respondent failed to reply to the Application for Expenses (“OCF-6”), which included the claim for payment of Dr. Thome’s CNRs. The Applicant submits that this is in violation of sections 38(8) and 38(9) of the Schedule. He also directs me to sections 15(1)(h), 16(3)91), 38(2)(d), and 39(2)(d) of the Schedule, but provides no discernible connection between these sections of the Schedule and his claim for payment. Nevertheless, he submits that the Respondent’s failure to reply entitles him to payment of the expense. The Respondent submits that it is not liable to pay for the records because it never requested them and because they relate to the Applicant’s involvement in subsequent accidents.

37I find that sections 38(8) and 38(9) of the Schedule do not apply to expenses related to the production of medical evidence to support a claim. Instead, section 38 applies to medical and rehabilitation benefits and the approval of assessments or examinations. Here, the Applicant seeks reimbursement for expenses paid to produce the CNRs of Dr. Thome, he is not seeking a medical or rehabilitation benefit, nor approval of an assessment or examination.

38Likewise, I find that sections 15(1)(h), 16(3)(l), and 38(2)(d) of the Schedule are not applicable as the sections relate to expenses incurred that the Respondent agrees are essential for the treatment of the Applicant, and for which a benefit is not otherwise provided in the Schedule. Sections 15(1)(h), 16(3)(l), and 38(2)(d) are dependent on the Respondent’s agreement that the expenses are essential for the treatment or rehabilitation of the Applicant. I conclude from the explanation of benefits, as well as the submissions for this hearing, that the Respondent does not agree that the expenses are essential for the treatment or rehabilitation of the Applicant.

39Section 39(2)(d) of the Schedule pertains to benefits that the Respondent agrees to pay for without the submission of a treatment and assessment plan. Here, there is no evidence that the Respondent agreed to pay for these expenses. Thus, the Applicant is not entitled to payment of the expenses pursuant to section 39(2)(d) of the Schedule.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that no benefits are payable, it follows that no interest is payable.

Award

41The Applicant sought an award under section 10 of Reg. 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. While the Applicant submits that the Respondent treated him unfairly and in bad faith, I find no evidence to support this claim. As explained above, the Applicant never established that he sustained an injury in the subject accident that is not included in the minor injury definition. It follows that he would not be entitled to benefits above and beyond those provided by the MIG.

CONCLUSION AND ORDER

42I find that the Applicant sustained a minor injury as a result of the subject accident and is bound by the MIG and the $3,500.00 funding limit for a minor injury.

43The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury.

44The Applicant has not demonstrated that he incurred any of the goods and services proposed in the treatment and assessment plans in dispute. Thus, he is not entitled to the treatment and assessment plans pursuant to section 38(11)2, and I have found them to be not reasonable and necessary.

45No interest or award is payable.

46The Application is dismissed.