Licence Appeal Tribunal

File Number: 21-006811/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:

Laith Yousif Applicant

and

Economical Insurance Company Respondent

DECISION

ADJUDICATOR: Nishant Nayak

APPEARANCES:

For the Applicant: Laith Yousif, Applicant Marissa Bannister, Paralegal

For the Respondent: Ryland MacDonald, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Laith Yousif, the applicant, was injured in an automobile accident on April 18, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”) from Economical Insurance Company, the respondent.

2The respondent denied the applicant’s claims, including a chronic pain assessment, because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG). As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of this dispute.

ISSUES IN DISPUTE

3The following issues are to be decided:

(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 MIG?

(ii) Is the applicant entitled to $2,260.00 for psychological services, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 (“plan”) dated July 26, 2019?

(iii) Is the applicant entitled to $2,034.95 for physiotherapy services, proposed by Activa Brampton in a plan dated November 8, 2019?

(iv) Is the applicant entitled to $3,269.07 for psychological services, proposed by Medex Assessments Inc. in a plan dated November 13, 2020?

(v) 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?

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

[4] I find that the applicant sustained a minor injury as defined in the Schedule. He is subject to the $3,500.00 funding limit on medical benefits for a minor injury.

[5] The applicant is in the MIG and is not entitled to the treatment and assessment plans in dispute.

6Similarly, where no benefits are payable, it follows that the respondent did not unreasonably withhold or delay the payment of benefits to justify an award under s. 10 of Reg. 664.

[7] No interest is payable.

ANALYSIS

The Minor Injury Guideline (the MIG)

8The 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, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.

9Section 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.

10The 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.

11I find that the applicant has failed to meet his onus of proving on a balance of probabilities that he suffers from chronic pain syndrome or psychological impairments and, therefore, he is not removed from the MIG.

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

12An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

13In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

15The applicant relies upon the psychological report dated November 13, 2020, from Dr. Waxer, psychologist. In his report, Dr. Waxer diagnosed the applicant with Persistent Somatic Symptom Disorder with Predominant Pain: Severe and Chronic Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. Dr. Waxer concluded that the applicant’s current level of emotional distress constitutes a substantial impairment interfering with his efforts to return to his previous employment potential and to many of his activities of daily living.

16The respondent relies upon the insurer examination (“IE”) report of Dr. Ellick, psychologist, dated October 2, 2019. In her report, on the combined recall recognition component, Dr. Ellick finds that the applicant’s score was within normal limits, indicating that he exhibited overall solid effort. Results from the Patient Health Questionnaire indicate that the applicant’s total score fell within the mild range with regard to symptoms of depression on this self-report inventory. The applicant produced a valid profile on the Pain Patient Profile. On both the Depression and Anxiety scales, his scores fell within the average range in comparison to other pain patients.

17Dr. Ellick found there are no psychological injuries as a direct result of the accident because the applicant did not report symptoms consistent with mood disturbance, including anxiety and/or depression and did not endorse symptoms indicative of post-traumatic stressors in life. Further, he has not sought out or participated in any mental health treatment. Dr. Ellick is of the opinion that MVA-related psychological counseling is not warranted as the applicant does not experience substantial emotional distress.

18The respondent further submits there are glaring weaknesses with Dr. Waxer’s assessments. Firstly, there is no corroborating evidence in family physician Dr. Loka’s clinical notes and records (CNRs). Dr. Loka’s CNRs did not report any emotional or psychological complaints from the applicant. Dr. Loka did not refer the applicant for any psychological intervention or treatment. Secondly, there is no evidence that an interpreter or translator was utilized during Dr. Waxer’s assessment, even though the applicant has difficulties with English. As such, it is possible that the applicant did not fully understand the questions posed during the assessment, which likely accounted for the discrepancies between Dr. Waxer’s assessment and the balance of medical evidence provided. Further, it is likely that the language barrier was compounded by fact that the assessment was conducted via videoconference rather than in-person.

19I agree with the respondent and place more weight on Dr. Ellick’s assessment. Dr. Ellick’s assessment was in person. She employed an Arabic interpreter to ensure the utmost accuracy of the applicant’s reporting, she employed psychometric testing and her assessment is congruent with Dr. Loka’s clinical notes. The applicant advised Dr. Ellick that he did not report symptoms consistent with mood disturbance, including anxiety and/or depression. He continues to maintain close relationships with his wife, four children and extended family. There was no reported vehicular anxiety, and he drives on a frequent basis given his occupation. He also did not endorse symptoms indicative of post-traumatic stress. The applicant further advised Dr. Ellick that he is of the opinion that MVA-related psychological counseling is not warranted as he does not experience substantial emotional distress. The severity of the psychological symptoms noted by Dr. Waxer are not noted in Dr. Loka’s CNRs. I am not directed to any notations from his family doctor of any psychological symptoms that would warrant his removal from the MIG.

20The onus is on the applicant. I am not satisfied on a balance of probabilities that the applicant has psychological impairments as a result of the accident that would remove him from the MIG.

Does the applicant have chronic pain that would remove him from the MIG?

21The applicant submits that he suffers from chronic pain, as diagnosed by Dr. Loka, family physician. The applicant further submits that section 25 assessor Dr. Waxer, psychologist, diagnosed the applicant with Persistent Somatic Symptom Disorder with Predominant Pain: Severe, and Chronic Adjustment Disorder with Mixed Disturbance of Emotions and Conduct. The applicant relies on 16-000438 v. The Personal Insurance Company, 2017 CANLII 59515 (ON LAT) and T.S v. Aviva General Insurance Canada, 2018 CANLII 83520 (ON LAT) for support that the applicant should be removed from the MIG for this reason.

22The respondent argues and submits that in P.S. v. Wawanesa Mutual Insurance Company, 2020 CanLII 87934 the applicant suffered from chronic pain based on medical evidence which showed that the applicant’s pain symptoms persisted for 14 months post-accident. In finding that the applicant did not meet the evidentiary burden for chronic pain, the Tribunal held that chronic pain cannot be inferred based solely on the length of time that has elapsed since the date of the accident or based on the length of time the applicant has attended for treatment.

23The respondent further submits although Dr. Loka diagnosed the applicant with “chronic pain”, this diagnosis should be given little weight as it was based solely on the applicant’s pain complaints and made no reference to the applicant’s post-accident functionality. Moreover, as per the IE report of Dr. Ellick, the applicant returned to his normal activities of daily living within months of the subject accident.

24I agree with the respondent and give little weight to Dr. Loka’s diagnosis of chronic back pain. Even though Dr. Loka described the applicant’s pain as chronic pain, Dr. Loka’s CNRs on four different dates - July 15, 2019, July 29, 2019, August 14, 2019, and January 22, 2020 - mention good overall range of motion (ROM). Notations of chronic pain in the CNRs of Dr. Loka do not establish that the applicant suffers from chronic pain syndrome. Similarly, the notations do not discuss how the applicant’s functionality is impaired as a result of chronic pain. The applicant only took couple days off work post-accident and after that continued to work as full-time truck driver; he also continued to do household jobs within his home such as painting, fixing cabinets, and fixing his cars. Also, he immediately resumed attending church on a weekly basis. Because of these reasons I find Dr. Loka’s CNRs not persuasive enough to demonstrate functional impairment of the applicant, which is what the applicant must demonstrate to warrant removal from the MIG under this ground.

25The respondent also points to the report of Dr. Safinia, neurologist, dated May 5, 2021. Dr. Safinia notes the neurological exam was essentially unremarkable. Given the mild severity of findings on the MRI of the lumbosacral spine and the absence of significant neurological deficits on examination, she reassured the applicant that there is no evidence of significant nerve damage and explained to him that he is best served with conservative therapies. She advised the applicant to participate in routine and regular self-directed exercises and stretches at home.

26The OCF-3 dated June 17, 2019, prepared by Dr. Furgal, the applicant’s treating chiropractor, diagnosed sprain and strain of sacroiliac joint, sprain and strain of lumbar spine, sprain and strain of ribs and sternum, sprain and strain of thoracic spine, other sprain and strain of cervical spine. These injuries are soft-tissue injuries, as defined by s. 3, and which fall within the MIG.

27With respect to Dr. Waxer and Dr. Ellick’s reports, I place more weight on Dr. Ellick’s report as mentioned above. Dr. Ellick states that the applicant has returned to full-time work as truck driver for which he leaves home between 6:15am and 6:30 am and arrives home back by 7:00pm. The applicant has returned to performing small household jobs within his home, such as painting and fixing cabinets. He has also resumed fixing his cars. Following the accident, he immediately resumed attending church on a weekly basis. Dr. Ellick further states that the applicant has largely returned to his pre-accident lifestyle.

28In addition, the 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, the Tribunal has adopted the AMA Guides as an interpretative tool for evaluating chronic pain claims. The AMA Guides state that at least three of the following six criteria must be present for chronic pain to be established:

(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 need; and

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

29The respondent made reference to the AMA Guides and provides compelling arguments that the AMA Guides are not met in this case. The respondent submits that the applicant: is not dependent on prescription drugs usage beyond recommended duration nor is there evidence of abuse of prescription drugs; there is no evidence of excessive dependence on health care providers, spouse or family; Dr. Loka’s clinical notes indicate that the applicant periodically attends his clinic with complaints of back pain since the accident. There is no evidence which shows the frequency in which the applicant attended facility-based treatment. The applicant has $300.00 per year in coverage for chiropractic and massage therapy treatment through his extended health care plan with IA Financial. The IA Financial claims summary indicates that the applicant has not undergone any chiropractic or physiotherapy treatment since October 2, 2019. The applicant has not undergone any massage therapy since December 19, 2019. The applicant has returned to pre-accident full-time employment as a truck driver and there is no evidence of withdrawal from social contacts or recreational activities. The applicant did not suffer from a psychological disorder as a result of the accident.

29Based on all of the evidence before me, and in consideration of the AMA Guides criteria, I find that the applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain.

30The applicant did not provide any evidence to substantiate the amount of benefits paid to date. In any event, I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans given my finding that the applicant sustained predominantly minor injuries as a result of the accident and is not removed from the MIG.

Interest

31Interest is payable on the overdue payment of benefits, as outlined in s. 51 of the Schedule. As there are no benefits owing, no interest is payable.

Award

32Similarly, where no benefits are payable, it follows that the respondent did not unreasonably withhold or delay the payment of benefits to justify an award under s. 10 of Reg. 664.

Order

33For the reasons outlined above, I find that:

(i) I find that the applicant sustained a minor injury as defined in the Schedule. and is subject to the $3,500.00 funding limit on medical benefits for a minor injury.

(ii) The applicant is not entitled to the plans in dispute because they propose treatment outside of the MIG.

(iii) The applicant is not entitled to an award or interest.