Citation: Afkhamizadeh v. Aviva General Insurance, 2023 ONLAT 21-005115/AABS

Licence Appeal Tribunal File Number: 21-005115/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:

Abdul Afkhamizadeh

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Saloumeh Baghbani, Counsel

For the Respondent: Nisaa Khan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Abdul Afkhamizadeh (“A.A.”), the applicant, was involved in an automobile accident on May 1, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). A.A. was denied benefits by the respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is A.A. entitled to a non-earner benefit (“NEB”) of $185.00 per week from May 1, 2019 to May 1, 2021?

ii. Is A.A. entitled to $2,460.00 for a chronic pain assessment, recommended by Healthmax Physiotherapy in a treatment plan (OCF-18) dated October 13, 2020?

iii. Is A.A. entitled to $3,796.35 for a chronic pain assessment, recommended by Healthmax Physiotherapy in an OCF-18 dated December 17, 2020?

iv. Is Aviva liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to A.A.?

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

3In his submissions, A.A. indicated that issues 2(ii), (iii) and (iv) are withdrawn. As such, the decision will focus on the remaining issues in dispute.

RESULT

4A.A. has demonstrated that he suffers a complete inability to carry on a normal life as a result of the accident. He is entitled to the NEB claimed with interest payable in accordance with s. 51 of the Schedule.

BACKGROUND

Pre-existing medical condition

5A.A.’s medical history is significant for various injuries as follows:

i. August 22, 1989 – work-related lumbosacral strain;

ii. December 18, 1989 – work-related slip and fall, diagnosed with a back strain;

iii. October 18, 1990 – work-related slip and fall;

iv. May 27, 1994 – diagnosed with acute lumbosacral strain caused by repetitive bending; and

v. September 29, 1999 – work-related fall.

6As a result of the above incidents, A.A. has not returned to work in any capacity since the incident in 1999.

7A.A. underwent a procedure and suffered additional injuries as follows:

i. In 2010, A.A. underwent a discectomy surgery;

ii. 2013 – injured himself while lifting a weight;

iii. 2014 – car accident resulting in worsened chronic pain;

iv. June 6, 2016 – MRI report notes multiple level degenerative disc disease, broad posterior C4/C5 disc protrusion causing compressive cervical myelomalacia; spinal stenosis of the cervical spine; degenerative disc disease of the lumbar spine;

v. November 1, 2016 – surgery was recommended to treat the C5-C6 disc herniation and spinal cord compression to prevent neurological deterioration;

vi. March 27, 2017 – underwent back surgery;

vii. January 26, 2018 – Family physician, Dr. Vincent, notes ongoing radiculopathy, secondary to myelomalacia, neck injury and chronic musculoskeletal pain syndrome; and

viii. February 4, 2019 – MRI of the cervical spine reveals multilevel degenerative disc disease; stenosis of the thoracic spine; and disc protrusions. The changes were not noted to have been significant compared to the September 26, 2017 MRI, indicating that A.A.’s condition from 2017 to 2018 has not change substantially since the corrective surgery (April 15, 2019 clinical note from Dr. Kumar, family physician).

Post-accident medical condition

8On May 1, 2019, A.A. was brought to the Mackenzie Hospital emergency department with a traumatic back/spine injury following the accident. A.A. reported back and neck pain and was noted to be experiencing severe pain. Upon release, A.A. was prescribed Percocet, Flexeril and Advil.

9On May 3, 2019, A.A. visited family physician, Dr. Vincent, presenting with severe pain from his neck to his leg, burning pain in the neck, blurry vision and flashing lights. Dr. Vincent diagnosed A.A. with acute on neck chronic pain, thoracic and lumbar strain with marked increase in pain.

10Dr. Vincent made several more diagnoses, post-accident, as follows:

i. June 4, 2019 – acute on chronic pain, exacerbation of pre-existing injuries with worsening in pain scores, increase nerve pain on the right side;

ii. July 9, 2019 – acute on chronic pain;

iii. December 18, 2019 – ongoing chronic pain syndrome, spinal stenosis, rotator cuff disease, chronic myofascial pain and cervicogenic pain;

iv. September 18, 2020 – chronic pain syndrome;

v. April 28, 2021 – new family physician, Dr. Ip noted severe lumbar radiculopathy and spinal stenosis;

vi. June 6, 2021 – MRI report indicated moderately advanced multilevel spondylosis notably resulting in moderate to severe central canal and bilateral neuroforaminal stenosis at L3-L4, moderate at L4-L5 and L5-S1. There is a note that A.A. is awaiting surgery for severe stenosis and compression of L2-S1;

vii. June 24, 2021 – A.A. underwent spinal surgery;

viii. December 15, 2021 – a CT scan of the lumbar spine noted mild spinal stenosis, degenerative disc disease and osteoarthritis; and

ix. March 1, 2022 – A.A. underwent another subsequent back surgery.

ANALYSIS

NEBs

11A.A. claims entitlement to an NEB as a result of the accident. Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which focuses on a comparison of a claimant’s pre- and post-accident activities.

Does A.A. suffer a complete inability to carry on a normal life as a result of the accident?

12I find that A.A. has demonstrated that he suffers a complete inability to carry on a normal life as a result of the accident.

13A.A. relies on the facets of the Heath test that there may be circumstances where a comparison of the pre-accident and post-accident circumstances is unnecessary, as it pertains to the nature of a claimant’s post-accident condition. Heath also established that going through the motions of an activity is not necessarily considered to be engaging in that activity and, further, the manner in which an activity is performed, and the quality of the post-accident performance must also be considered. A.A. further submits that where pain is a primary factor in preventing an insured from engaging in an activity, the question is not whether the insured can physically do the activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, practically prevents the insured from engaging in the activity.

14A.A. submits that prior to the subject accident, he did suffer from ongoing injuries and impairments, however, he was able to travel, ambulate to the washroom and perform housekeeping and home maintenance tasks. His pain was managed with injections and his condition was reported by his treatment providers to be stable. His position is that he has lost his independence and is no longer able to engage in his pre-accident activities.

15Aviva argues that A.A.’s evidence and submissions fail to demonstrate that he suffered a complete inability to carry on a normal life. In this regard, its position is that A.A.’s post-accident condition was already significantly limited, and that the pre-and post-accident analysis is necessary. It submits that A.A. is still able to engage in his pre-accident activities, such as travel, leisure, home maintenance tasks, and ambulation. Regarding sleep, mental health, and self-care, it submits that his sleep was quite disturbed prior to the accident (Dr. Vincent – September 20, 2018 record); the post-accident depression is irrelevant as it falls outside the 104-week period of eligibility, and pre-accident, A.A. had difficulty with showering, bathing, washing his hair, dressing and tying his shoes, receiving assistance from his children and bathing while seated. Post-accident, A.A. continues to brush his teeth, perform self-care tasks, shower with modifications, dress and undress, and eat independently. As such, there is no difference between his pre-and post-accident abilities.

16Regarding the Heath test of whether a pre-and post-accident analysis is required, I agree with Aviva on the issue. While I appreciate A.A. has significant pre-accident medical conditions, the analysis of his level of pre-accident function is still necessary to understand the extent of his post-accident ability. This is especially so, where he submits that he was able to function despite his pre-accident condition. Further, the Heath test provides that an applicant may identify their “valued” activities of daily living, and how, as a result of the accident, the most valued activities have fundamentally changed due to pain, thus resulting in a complete inability to carry on a normal life. Accordingly, a pre-and post-accident analysis would reasonably be required.

Pre-accident activities

17A.A. provided evidence on his pre-accident activities that he was able to engage in, as follows:

i. November 1, 2016 – A.A. reported to his treating physician that he would be travelling to Iran to visit his father – submitting that he has demonstrated that prior to the collision, he was able to tolerate travelling to Iran despite pain and the need for surgery;

ii. December 23, 2016 – A.A. reported that he would like to have his 2017 surgery in the spring as he does not have much help with the labour at home – submitting that he was still completing his home maintenance duties;

iii. September 20, 2018 – a consult note from Dr. Kumar (treatment provider), note that he had no issues with bowel or bladder function and that he is independent with activities of daily living; and

iv. December 20, 2018 – reported that he would be leaving to go on vacation – submitting that before the collision, he was still travelling for leisure activities.

Post-accident activities

18A.A. submits that the accident exacerbated his chronic pain and mobility difficulties. A.A. also submits that he has difficulty engaging in home maintenance tasks, ambulation, suffers from poor sleep, his mental health has been impacted and he experiences difficulties performing self-care tasks.

19He relies on the records of Dr. Hatamian, specifically a May 16, 2019, note where Dr. Hatamian noted that A.A. has a lot of difficulty moving around because of pain. Similarly on May 21, 25 and 27, 2019, he reported being unable to lie down due to pain. On May 27, 2019, he reported that his right leg “gives out” and on February 27, 2020, he reported to Dr. Curcio that his right leg gave out two weeks prior causing him to fall and land on his back.

20A.A. also submits that he has sustained more post-accident falls due to exacerbation of his pain and weakness as a result of the collision. On December 18, 2019, A.A. reported that he was falling twice a week due to right leg numbness. On March 27, 2020, A.A. reported a slip and fall walking to the washroom, which caused severe back pain. On September 18, 2020, A.A. reported experiencing several falls since his last appointment.

21A.A. relies on additional clinical records that note difficulty with sleeping, using a walking cane to ambulate, being scared to drive, anxiety approaching intersections, constant pain in his back and legs and incidents of losing urine and stool due to poor mobility and requiring his wife’s assistance to ambulate.

22A.A.’s position is that little weight should be assigned to the reports of the s. 44 assessors due to not having reviewed his medical records. As such, he submits that their conclusions are not based on all of the information available, and therefore, not reliable. He points to the fact that none of the assessors list any of the medical records as having been reviewed (despite being provided), with the exception of the OCF documents.

23In support of its determination, Aviva relies on the conclusions of its assessors in a September 10, 2019 s. 44 multidisciplinary report: orthopaedic surgeon Dr. Tansey (uncomplicated myofascial strain type injuries); psychologist Dr. Lee (no psychological impairment as a result of the accident), occupational therapist Ms. Markandu (demonstrated adequate functional range of motion, strength and physical abilities), and physiatrist Dr. Bhangu (A.A. would benefit from continuing to engage in his activities of daily living).

24I agree with A.A. The medical documentation supports that he has a significantly reduced ability to carry on a normal life as a result of the accident, having already been very limited and now having to excessively rely on treatment providers and family. It is well documented in the family physician records and the records of North Woodlands that he suffered pre-accident chronic pain, which was managed by injections, and that the accident has exacerbated his chronic condition. Further, the increase in falls, pain, leg weakness, ambulation issues, the requirement now of using a cane, and remaining in bed most days all speak to A.A.’s post-accident condition that has also been reported to various treating practitioners. In addition, I question the thoroughness of the s. 44 assessors, as none of them reviewed any of A.A.’s treatment records. Basing their opinions solely on the results of their assessments and the OCF documents does not allow for a fulsome consideration of A.A.’s pre- and post-accident health status to allow for a well-informed conclusion.

25Also, considering the ability to engage in activities of daily living requiring pain-free and uninhibited mobility, I find that A.A. is not able to do so for any substantial period of time. I find that his current reduced ability to engage in various pre-accident activities is limited as a direct result of the accident. Further, having a significantly compromised back as a result of pre-accident falls and surgeries and subsequently involved in a rear-end collision resulting in further surgery would likely contribute to a worsening of an already compromised back. My finding is supported by the medical records noting the increased documentation of exacerbated chronic pain; ongoing back pain; associated pain in the legs; the resulting mobility issues due to back and leg pain; pain affecting sleep and challenges with simple engagement in performing his daily activities.

26For these reasons, I find that A.A. has demonstrated that he suffers a complete inability to carry on a normal life as a result of the accident.

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

28Having found that A.A. is entitled to a NEB, interest is payable on the outstanding payment of the NEB.

ORDER

29A.A. is entitled to a NEB for the period of May 1, 2019 to May 1, 2021. Interest is payable in accordance with s. 51 of the Schedule.