Licence Appeal Tribunal File Number: 20-011128/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:
Mohammad Walizada
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Mohammad Walizada, Applicant
Andrew Suboch, Counsel
For the Respondent:
Claire Mazerolle, Dispute Resolution Claims Adviser
David Koots, Counsel
Court Reporter:
Maureen Biscak
HEARD: by Videoconference:
November 7 and 8, 2022
OVERVIEW
1Mohammad Walizada, the applicant, was involved in an automobile accident on April 26, 2019. He applied for and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) including medical and Income Replacement Benefits (“IRBs”). The applicant was denied benefits by the respondent, BelairDirect, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent denied the applicant’s claims, on the basis that the applicant’s injuries were minor and therefore fall within the Minor Injury Guideline (“MIG”). In the alternative, the respondent takes the position that the medical claims are not reasonable and necessary. The applicant’s position is the opposite. The parties advise that there is $86.91 remaining in medical and rehabilitation benefits within the MIG limit. The parties did not identify which treatment plan they would like to accord this to, should I find that the applicant’s injuries fall within the MIG.
3The respondent also terminated the applicant’s claim for IRBs from November 29, 2019 forward, taking the position that he did not meet the test for entitlement. The applicant disputes the termination and is seeking IRBs for the period of 104 weeks after the accident.
ISSUES
4The issues in dispute are:
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 MIG?
Is the applicant entitled to $164.72 for physiotherapy recommended by East Rehabilitation Center (“ERC”) in a treatment plan/OCF-18 (“plan”) submitted on May 14, 2019?
Is the applicant entitled to $2,754.38 for physiotherapy recommended by ERC in a plan submitted on September 28, 2019?
Is the applicant entitled to $2,882.04 for physiotherapy recommended by ERC in a plan submitted on July 2, 2020?
Is the applicant entitled to $2,484.64 for a psychological assessment recommended by Paramount Medical Assessments (“PMA”) in a plan submitted on November 22, 2019?
Is the applicant entitled to $200.00 for the cost of completing an OCF-18 for psychotherapy recommended by PMA in a plan submitted on March 1, 2020?
Is the applicant entitled to $200.00 for the cost of completing an OCF-18 for a chronic pain assessment recommended by PMA in a plan submitted on July 28, 2020?
Is the applicant entitled to $2,021.57 for an orthopaedic assessment recommended by PMA in a plan submitted on August 18, 2020?
Is the applicant entitled to IRBs of $252.43 per week from November 29, 2019 to 104 weeks after the accident?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant suffered predominantly minor injuries and did not suffer from a psychological injury that would remove him from the MIG.
6Since the MIG limit has been exhausted with the exception of $86.91, it is not necessary to consider whether the treatment plans are reasonable and necessary.
7The applicant is not entitled to payment of IRBs.
8The applicant is not entitled to any interest as there are no overdue payments.
ANALYSIS
The Minor Injury Guideline
9Section 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) of the Schedule 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.”
10An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside 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.
11The applicant submits that he should be removed from the MIG based on his serious ongoing psychological issues as well as his ongoing complaints of pain which demonstrate “a chronic pain type situation.” The respondent submits that there is a lack of supporting objective evidence of the applicant’s physical or psychological impairments that are directly attributable to the accident and that the evidence falls well short of the level required for removal from the MIG.
The applicant sustained predominantly minor physical injuries and has failed to demonstrate that he suffers from chronic pain
12Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.
13The applicant submits that, as a result of the accident, he suffers from a soft tissue injury with ongoing back pain that persisted more than 6 months, which is a classic chronic pain type situation that place his claims outside the MIG. For the reasons that follow, I find that the evidence establishes that the applicant sustained predominantly minor injuries and he has failed to demonstrate on a balance of probabilities that he suffers from chronic pain.
14The applicant testified that he did not have any health problems prior to the accident and after the accident he had a lot of pain, mostly in his lower back. He could not sleep at night because of the pain. The pain was a lot worse in the beginning but got better after he went to therapy. He then felt pain again and did not know if it was because he stopped going to therapy.
15Although the applicant testified that he first sought medical attention the week of the accident, he could not remember which doctor he saw and no medical documents were filed to corroborate this visit. The applicant also testified that he saw his family doctor, Dr. Ali Mansour, and was prescribed medication for his back pain. This is not documented in any of the family doctor’s records that were filed. With respect to treatment, the applicant testified that he used his mother’s “massage thing” that she used on her back as well as a numbing cream from the drug store. He also indicated that he started to attend for physiotherapy about two weeks after the accident and stopped going after 5 or 6 sessions because they stopped calling him and he moved to another city. He indicated that the treatment helped a little bit. The pain is better now but it comes and goes.
16It is significant to note that the applicant’s family doctor’s records were filed into evidence by the respondent and not the applicant. The first notation in the records in relation to the accident was on January 15, 2020, over 8 months after the accident, where Dr. Mansour indicated “chronic low back pain with intermittent flareups.” The doctor also noted there was a normal exam. There was no diagnosis of chronic pain syndrome. Rather, the notation appears to indicate that there is chronic pain based on the applicant’s self reporting, on one occasion, 8 months after the accident. As pointed out in the respondent’s submissions, this is the only supporting OHIP record indicating that the applicant’s low back pain is chronic.
17The only other objective evidence presented in support of the applicant’s position is the orthopaedic assessment of Dr. Tajedin Getahun from August 15, 2020. Dr. Getahun diagnosed the applicant with “Thorocolumbar strain chronic” based on a physical examination of the applicant on this one occasion and the applicant’s self reporting. Dr. Getahun concludes that the applicant’s symptoms have not resolved within the expected time for uncomplicated soft tissue injuries and have entered a chronic phase, which precludes him from achieving maximum medical recovery within the MIG.
18Dr. Ahmed Mian, physician, prepared reports based on his examination and assessment of the applicant in person on November 4, 2019 and June 16, 2020. He was also called by the respondent to testify. Dr. Mian diagnosed the applicant with strain/sprain (soft tissue injuries to the cervical and lumbar spine) but on exam on both occasions found that there were no musculoskeletal, neurological or osseous impairments to support the applicant’s ongoing subjective symptomatology of pain to the cervical and lumbar spine.
19I find that for chronic pain to take someone out of the MIG, there must be an effect on their functionality. On a consideration of all of the evidence, I find there is insufficient medical evidence that the applicant’s accident-related injuries have had a detrimental impact on his functionality. More is required to establish to what extent a chronic pain condition affects functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.
20In this case there is insufficient objective medical evidence to establish that the accident caused a chronic injury to the applicant. The first documented complaint of physical pain to the applicant’s family doctor occurred over 8 months after the accident. There is a lack of evidence to demonstrate that the applicant’s pain is persistent or chronic in nature and no actual diagnosis in this regard. Based on all of the evidence before me, I find that the applicant has failed to prove on a balance of probabilities that his accident-related physical injuries warrant removal from the MIG.
The applicant does not have a psychological impairment
21Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries,” and the prescribed definition does not include psychological impairments.
22The applicant submits that he sustained a psychological injury as a result of the accident that place his claims outside of the MIG. For the reasons that follow, I find that the applicant has not met his burden to prove that he sustained a psychological injury that warrants removal from the MIG.
23On January 3, 2020, the applicant was assessed by Ms. Deni Margarita Herrera, a psychotherapist, under the supervision of Dr. Ana Bodnar, psychologist. The applicant filed their psychological assessment report dated January 11, 2020.
24The applicant reported that he dropped out of college after the accident due to his physical, emotional and cognitive state and that the psychological aftermath of the accident has been profound. He suffers from insomnia and has to smoke cannabis to fall asleep. He indicated that prior to the accident he slept 7 to 8 hours a night and now he sleeps almost all day. Further, since the accident he does not socialize due to pain, fatigue and low mood; he becomes easily frustrated and overthinks everything, such as school, work and his ex-girlfriend. He reported that after the accident, his life was deeply affected. He broke up with his girlfriend of 2 years and a close friend passed away. He advised that all of these events together have been affecting his emotional and psychological well-being. He has not been able to drive since the accident due to his emotional state. He has recurring thoughts about the accident and feels hypervigilant when travelling as a passenger.
25Four psychological tests were administered. The applicant’s test scores were summarized to indicate that he is experiencing severe emotional distress since the accident, mostly in the form of trauma-responses, generalized anxiety and stress, depressed mood, fears and phobias, anger, irritability and somatic pain. Further, he is distressed as a result of various issues resulting from the accident, such as physical and emotional limitations, changes in mood, isolation, decreased motivation, as well as sleep, appetite, cognitive issues and in-car fears. The tests administered were all self-report tests and there was nothing in the report to indicate that any of the tests contained any validity testing measures. The only reference to validity was an indication that the applicant’s responses in his questionnaires were aligned with his presentation at the interview. Since all of the testing is based on self-reports and apparently do not contain any validity testing, I give less weight to the results.
26Based on the interview and the self-report tests, the applicant was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (driving/travelling). Ms. Herrera and Dr. Bodnar concluded that this diagnosis was a direct result of the applicant’s accident as he was reportedly functioning in a satisfactory manner prior to the accident. The report does not explore how much the applicant’s breakup with his girlfriend and the death of his friend might have affected the applicant’s depressed mood.
27The applicant testified that after the accident “everything went downhill.” He could not sleep because of back pain, he had a “really bad breakup” with his girlfriend and then “COVID happened”. At the time of the accident, he was taking a plumbing course and did not graduate because he did not have a car to go to school and he stopped being motivated after the accident. He did not indicate at this point that there was any fear of driving, only that he did not have a car to get to school. He testified that he had a lot of pain in his back and “after that it was just stress.”
28The applicant testified that everything happened after the accident: the breakup with his girlfriend, family issues and money problems. When he discussed being unmotivated after the accident, he testified about his girlfriend being unfaithful and the COVID pandemic. When asked directly whether he had psychological issues in January of 2020, the applicant responded that he was really stressed and it was the first time in his life that he felt hopeless. He added that “COVID made everything worse.” He was asked about his mood and he replied that he smoked a lot of pot every day and this helped him sleep and forget everything that was happening. When the applicant’s counsel asked directly if he suffered from anxiety or depression he answered yes. He had issues with driving. Sitting down was the hardest thing. He did not trust himself to drive because of all the trauma and it was also because of the back pain.
29During the applicant’s psychological insurer’s examination with Dr. Rod Day, psychologist, on May 28, 2020, the applicant reported non-accident-related stresses and anxieties, i.e. COVID, the stress of living with his parents and the breakup with his former girlfriend. The applicant became tearful when discussing the breakup and advised Dr. Day that it was very hard and as a result, he hated everything and hated his life. The applicant reported that he avoids going outside as he is afraid for his life due to the pandemic. This stress was compounded by the fact that he was living with his parents, and they annoyed him increasingly. The applicant described his mood as having improved in the last couple of months.
30The applicant advised Dr. Day that he did not rise from bed until early afternoon. He would then eat and play videogames, read books, draw or watch movies during the day. After dinner, he would watch movies, smoke marijuana and then go to bed at around 1:00 a.m. Prior to the accident, he would arise at about 8:00 a.m., eat breakfast, attend school, meet with friends and spend time with his girlfriend prior to going to bed around 10:00 p.m. He was more physically active in activities such as swimming and playing soccer. Dr. Day indicated in his report that the applicant did not identify any clear accident-related issues or problems.
31Dr. Day administered three psychometric tests: the Personality Assessment Inventory, the Pain Patient Profile and the Pain Catastrophizing Scale (“PCS”). The first two tests which contained validity testing yielded an invalid profile and were not able to be interpreted. The PCS is a 15 item self-report test that measures negative thoughts and beliefs found to be associated with the development of a somatoform disorder such as Chronic Pain Disorder. Dr. Day indicated that individuals scoring in the elevated range are likely to be responding in a psychologically dysfunctional manner to their pain that serves to impair their level of functioning. The applicant’s responses on this test did not indicate the presence of dysfunctional or catastrophic thoughts in response to his pain.
32Dr. Day’s report indicated that the applicant denied depression as a significant issue. He did not report a loss of interest in previously enjoyed activities. He indicated that he generally goes to sleep without difficulty but sometimes awakens at night. His energy is generally adequate although he often sleeps in in the morning. He has good concentration. The applicant reported to Dr. Day that his biggest source of stress is the COVID outbreak and his discomfort and discontent living with his parents.
33Dr. Day concluded that the accident clearly does not satisfy the stressor criteria for PTSD. The applicant did not report distressing dreams related to the accident or intrusive memories during the day while awake. He has not driven since the accident but stated this was due to not having access to a vehicle. He has not replaced his car since the collision. He believes that it would not be difficult for him to resume driving if he had access to a vehicle. Dr. Day concludes that the results of his comprehensive assessment do not indicate the presence of any accident-related psychological impairment that warrants intervention or that would remove the applicant from the MIG.
34During his direct examination, the applicant testified that he had been in school for plumbing but one of the reasons he did not graduate is because he did not have a car to go to school. He did not indicate that he was incapable of driving due to a phobia of driving.
35I give more weight to Dr. Day’s report as the applicant’s reporting to Dr. Day was more consistent with his testimony at the hearing. His psychological distress appears to have been more related to personal problems and the pandemic, rather than to the accident. The respondent submitted that the applicant’s psychological report did not properly delve into the applicant’s non-accident-related concerns. I agree.
36There was no evidence presented that the applicant reported any type of psychological injury to any treatment provider other than to the applicant’s assessor. His only documented visit with his family doctor, Dr. Ali Mansour, was on January 15, 2020, 12 days after his s. 25 psychological assessment. Dr. Mansour did not make note of any psychological issues that were reported by the applicant.
37The respondent submitted that the applicant did not provide any OHIP documentation to demonstrate that he made complaints to any OHIP provider regarding psychological concerns. None were filed as evidence by the applicant.
38I find that there is a lack of supporting objective evidence of a psychological impairment directly attributable to the accident. The applicant’s family doctor would be in the best position to document any psychological effects from the accident. There is no mention in Dr. Mansour’s medical records of any psychological issues. The only documented evidence in this regard comes from the applicant’s assessor which was completed almost 9 months after the accident. The evidence coming from the applicant’s own testimony as well as the respondent’s assessor indicates that there were several concerns in the applicant’s life that were causing him psychological distress that were not related to the accident.
39In all of the circumstances, I find that the applicant has not met his burden of proof on a balance of probabilities that he suffers from a psychological injury as a result of the accident that would warrant his removal from the MIG.
40Based on my findings that the applicant suffered from predominantly minor injuries and falls within the MIG as well as the fact that the MIG limit has been exhausted with the exception of $86.91, it is not necessary to consider whether the treatment plans are reasonable and necessary.
The applicant is not entitled to IRBs
41Section 5(1) of the Schedule provides that an IRB is payable where a person was employed at the time of the accident and suffers, as a result of, and within 104 weeks after the accident, a substantial inability to perform the essential tasks of their employment. The applicant bears the burden of proving on a balance of probabilities that he is entitled to IRBs. For the reasons that follow, I find that the applicant has not met his burden.
42The applicant submits that the Tribunal should find that he cannot complete the essential tasks of his employment duties based on his credible testimony as well as the fact that the respondent’s kinesiologist reports were merely filed and he was not asked to give evidence. The respondent submits that the evidence falls well short of establishing the applicant’s entitlement to IRBs. In consideration of the evidence as outlined below, I agree with the respondent.
43On the date of the accident, the applicant was working part-time at Staples while attending a year-long college plumbing course. The respondent initially paid the applicant IRBs in the amount of $252.43 per week, however issued a denial effective November 28, 2019, after obtaining Insurer’s Examinations by Dr. Ahmed Mian and David Morris, a kinesiologist.
44The applicant testified that his work involved re-stocking boxes, sometimes helping the receiver unload boxes and take them to aisles, and taking things out of the back for customers, such as desks, tables, computer chairs and drawers. He had to restock items, which involved climbing a ladder with boxes. He estimated that the heaviest item he would lift was between 60 to 80 kg (the equivalent of between approximately 132 and 176 lbs).
45When asked how his ability to work was affected, the applicant testified that he did not get enough sleep. After the accident, he was unmotivated to do anything. His girlfriend cheated on him, then the pandemic occurred. He could not go out and breathe air because he was in a lot of pain, he had no work, and had issues with his parents.
46As indicated above, the applicant’s first documented accident-related medical visit was on January 15, 2020, a full 8 months after the accident, when he saw his family doctor. Dr. Mansour prescribed massage and physiotherapy for the noted chronic low back pain with intermittent flareup. There is no indication of any medication prescribed.
47David Morris conducted a Job Site Evaluation on October 25, 2019 and a Functional Abilities Evaluation on November 14, 2019. He interviewed the Sales Manager and the General Manager at Staples, the applicant’s employer at the time of the accident. Mr. Morris was advised that the applicant performed restocking and customer service activities at Staples. The Sales Manager confirmed that the applicant’s work activities involve handling loads between 22 and 44 lbs. This is a significant difference from the 132 to 176 lbs testified to by the applicant. During the Functional Abilities Evaluation, Mr. Morris noted that the applicant exhibited task-avoidance behaviours and self-limitation during the dynamic strength activities and that the results of the strength assessment are not considered to be representative of his current functional abilities.
48Mr. Morris’ report was filed into evidence. The applicant submits that one of the reasons the Tribunal should find that he is unable to complete the essential tasks of his employment duties is because Mr. Morris was not called by the respondent to give evidence and his report was simply filed by the respondent. Presumably, the applicant is arguing that the Tribunal should not place any weight on the report. The applicant was certainly free to call Mr. Morris as a witness to challenge his evidence. Since this was not done, Mr. Morris’ evidence is uncontroverted, with the exception of the applicant’s testimony. In his testimony, the applicant did not address Mr. Morris’ assertion that he exhibited task-avoidance behaviours and self-limitation during the strength assessment portion of the Functional Abilities Evaluation.
49Dr. Day indicated in his report that the applicant advised that he had not returned to work due to COVID and that even if there had not been a pandemic he may not have returned to Staples because he did not want to work there anymore. He also expressed an interest in pursuing industrial design in the future. When asked about this during cross-examination, the applicant advised he thinks he said that he did not return to Staples because of COVID as he was scared for his health, even with a mask on. The applicant did not remember telling Dr. Day that he no longer wanted to work at Staples.
50During the pandemic, the applicant confirmed that he applied for and received the CERB benefit. In cross examination, the applicant advised that he “thought” he knew that the CERB benefit was for people who would be working but for COVID. The applicant further explained that COVID was one reason he was unable to work, but the accident was another reason.
51In Dr. Mian’s report based on his assessment of the applicant on November 4, 2019, he indicated there were no accident-related musculoskeletal, neurological or osseous impairments which would have prevented the applicant’s return to his pre-accident employment. When asked how he made a determination regarding whether the test to qualify for IRBs has been met, Dr. Mian testified that his view is only one piece of the puzzle. Before conducting his assessment of the applicant, Dr. Mian reviewed the applicant’s file of reports from other practitioners, conducted his assessment and made observations. Based on the applicant’s diagnosis and from a medical perspective, Dr. Mian indicated there is a typical amount of time it should take the injuries to heal. In this case, in light of the therapy received by the applicant, Dr. Mian was of the view the applicant would have been expected to heal within 8 to 12 weeks of the accident.
52The applicant proffers Dr. Getahun’s report from August 2020 which briefly notes that the applicant’s impairment would render the applicant substantially unable to perform the essential tasks of his employment. However, Dr. Getahun does not provide a rationale or reasoning to support his opinion.
53Based on a consideration of all of the evidence presented, I find that there is insufficient objective and contemporaneous evidence to support the applicant’s burden to prove, on a balance of probabilities, a substantial inability to perform the essential tasks of his employment. For these reasons, I find the applicant is not entitled to payment of an IRB for the period from November 29, 2019 to 104 weeks after the accident.
Interest
54Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to any interest as there are no overdue payments.
ORDER
55I find that the applicant’s injuries fall within the MIG. Based on this finding, as well as the fact that the MIG limit has been exhausted with the exception of $86.91, it is not necessary to consider whether the treatment plans are reasonable and necessary.
56I find that the applicant is not entitled to payment of an IRB as he has not demonstrated a substantial inability to perform the essential tasks of his employment from November 29, 2019 to 104 weeks after the accident. Accordingly, no IRBs are payable.
57Since there are no overdue payments, the applicant is not entitled to interest.
Released: May 9, 2023
__________________________
Laura Goulet
Adjudicator