Homayoun v. Pembridge Insurance Company, 2023 CanLII 58496

Citation: Homayoun v. Pembridge Insurance Company, 2023 ONLAT 20-008027/AABS

Licence Appeal Tribunal File Number: 20-008027/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 Homayoun

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Gareth Neilson

APPEARANCES:

For the Applicant: Mohammad Homayoun, Applicant Paul Barrafato, Counsel

For the Respondent: Pembridge Insurance Company, Representative Jasmina Mrkalj-Skelly, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Mohammad Homayoun, the applicant, was involved in an automobile accident on January 7, 2018, and sought benefits from the respondent, Pembridge, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied the treatment on the basis that he sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (MIG), and that he did not suffer a complete inability to carry on a normal life as a result of the accident. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES

2The issues in dispute are:

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 Minor Injury Guideline?

ii. Is the applicant entitled to $2,123.11 for psychological services as proposed by Unison Medical Assessments in a treatment plan dated April 23, 2018 and denied on July 16, 2018?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not demonstrated that removal from the MIG is warranted.

4The applicant has not demonstrated that the proposed treatment plan for psychological services is reasonable or necessary.

5No interest on overdue payments is warranted as the treatment plan is deemed not to be reasonable or necessary.

ANALYSIS

Applicability of the Minor Injury Guideline

6Section 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. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant submits that they should be removed from the MIG due to the full-thickness tear of the anterior to mid left supraspinatus tendon, concussion, and psychological impairments. The applicant argues that the partial tear in the shoulder became a full tear due to the denial of treatment needed by the applicant. The applicant relies on the reports of Dr. Arora (family physician), Dr. Gallou (Psychologist), Pinjalkumar Suthar of WG Wellness and Physio (Physiotherapist), Dr. Tobin (MD, Medical Consultant), Dr. Syed (Chiropractor) along with two ultrasounds, an x-ray and cortisone injections used to treat the shoulder injury.

8In response, Pembridge points to the report from St. Joseph’s Hospital, Hamilton, where the applicant was first treated after the accident. The applicant did not report any shoulder or head injury, did not lose consciousness and was diagnosed with whiplash. It also relies on the OCF-18 filed by Dr. Gallou, where the applicant stated that after the accident he went to a funeral before heading to the hospital. The respondent also relies on Psychological and Physiatry s. 44 reports from Dr. Dumitrascu (Psychologist), Dr. Mathoo (Physiatrist) and surveillance taken of the applicant.

9The respondent also argues contemporaneous evidence should be given more weight in deciding whether the applicant is in the MIG or not. It argues that the applicant suffered a partial tear in the shoulder, which only became a full tear after four years of an active lifestyle. It relies on Ilangeshwaran v. Aviva¹ and Applicant v. Aviva² to state their case.

10I agree with Pembridge that the applicant presented with injuries that fall within the MIG as a result of the accident. The fact that the applicant was able to drive after the accident, went to a funeral and then hours later attended a hospital (all stated in the OCF-18 from April 23, 2018), is evidence of a minor physical injury. Additionally, when the applicant initially attended the hospital, the applicant did not complain of any shoulder pain or a head injury that would warrant treatment beyond the MIG. The applicant’s motor skills were normal, the CT scan was normal, he had no sensitivity to light, and was diagnosed with whiplash, which is considered a minor injury under s. 3.

11While I sympathize with the applicant and understand through various reports that the applicant’s condition worsened over time, the applicant has failed to meet his burden of proof that the injuries relied upon to be removed from the MIG, were in fact caused by the accident.

12The contemporaneous evidence of the initial treatment at the hospital, Dr. Arora’s reports of January 11, 2018 and January 15, 2018, along with the OCF-3 dated January 22, 2018, all show that the applicant sustained injuries consistent with the MIG.

13The OCF-18 dated April 23, 2018 suggests that the applicant may have a need for psychological treatment due to Mixed Anxiety and Depressive Disorder and Non-Organic Insomnia. The applicant relies on reports from Dr. Labuda, Dr. Arora, Dr. Syed and Pinjalkumar Suthar when setting out this case for post-concussion syndrome. Notably, Pinjalkumar Suthar, a physiotherapist, opined that the applicant should be referred for “further investigation for Concussion/Vertigo and Psychologist for other post concussion symptoms.” However, the applicant has not proven that he accepted the referral or that further investigation into the post concussion symptoms was done.

14The applicant did not initially complain of a shoulder injury at St. Joseph’s Hospital and I find the argument that the injury was sustained in the accident difficult to accept. Upon initial treatment by Dr. Channan, it was found that the applicant scored 5/5 on his motor skills in his shoulder.

15I accept the fact that the applicant visited Dr. Arora on January 11, 2018 complaining about shoulder pain. I also accept that over a period of four years the applicant complained on numerous occasions of shoulder pain. I also accept that the applicant received treatment for said shoulder pain. However, even if I accepted the fact that the injury was sustained in the accident, the injury was diagnosed as a partial tear, which is consistent with an injury that would keep the applicant subject to the MIG. In addition, paragraph 26 of the respondent’s submission notes that the applicant did not attend $3,397.00 in approved physical treatment.

16The applicant opines that after four years it was found that the partial tear in the shoulder had become a full tear. The applicant goes on to say that he should be removed from the MIG as the full tear was a direct result of inaction by the respondent. I am not compelled by this argument, because there is no direct causation link between the purported full tear and the accident and it is the applicant’s burden to demonstrate that his impairments were caused by the accident. In fact, surveillance conducted on the applicant shows him leading an active lifestyle and the applicant submitted on September 28, 2020 to Dr. Arora that the pain is worse with heavy lifting. Additionally, Dr. Dumitrascu reports that when questioned about the surveillance footage and lifting heavy objects, the applicant responded: “I have never said I can’t do anything; I do what needs to be done but the next day pain comes and I have to suffer.” This suggests that the applicant was living an active life and the purported full tear in the applicants’ shoulder cannot be directly attributed to the accident or the inaction of the respondent.

17For the reasons stated above I find that the applicants injuries fall within the MIG.

Is the applicant entitled to $2,123.11 for a psychological assessment?

18The report by Dr. Gallou was a pre-screening report and suggested that the applicant undergo a psychological assessment to determine the extent of the applicants’ injuries. The applicant has failed to prove that the psychological assessment is reasonable and necessary. Furthermore, I find that the applicant has failed to prove that the need for a psychological assessment was the result of the motor vehicle accident. Lastly, it is not clear whether there is any room left in the MIG limits and, therefore, with my finding that the MIG applies to the applicant’s impairments, I cannot accept that the applicant is entitled to $2,123.11 for a psychological assessment.

19The contemporaneous evidence of the initial treatment at the hospital, Dr. Arora’s reports of January 11, 2018, January 15, 2018 along with the OCF-3 dated January 22, 2018 all show that the applicant sustained injuries consistent with the MIG.

20The OCF-18 dated April 23, 2018 suggests that the applicant may have a need for psychological treatment because of symptoms that could suggest post concussion syndrome. However, it is not clear if the applicant ever attended a psychological assessment or underwent any treatment for any psychological impairment. Therefore the psychological assessment is deemed not reasonable or necessary.

Interest

21The applicant is not entitled to any interest on overdue payments.

ORDER

22The applicant has failed to demonstrate that removal from the MIG is warranted.

23The applicant is not entitled to the assessment plan as he has not demonstrated that it is reasonable and necessary.

24The applicant is not entitled to any interest.

Footnotes

1. 1Ilangeshwarren v Aviva, 2022 CanLII 8661 (ONLAT)
2. 2Applicant v Aviva, 2018 CanLII 110941 (ONLAT)