Anwar v. Intact Insurance, 2023 CanLII 58530

Licence Appeal Tribunal Decision

Citation: Anwar v. Intact Insurance, 2023 ONLAT 21-006045/AABS

Licence Appeal Tribunal File Number: 21-006045/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 Naim Mohammad Anwar

Applicant

and

Intact Insurance

Respondent

DECISION

VICE-CHAIR: Ian Maedel

APPEARANCES:

For the Applicant: Moninder Khattra, Counsel Golan Mergui, Counsel

For the Respondent: Brittany Rizzo, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mohammad Naim Mohammad Anwar, the applicant, was involved in an automobile accident on September 28, 2019, and sought benefits 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, Intact Insurance, 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. 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 (“MIG”)?

ii. Is the applicant entitled to $4,912.80 for psychological treatment, proposed by 101 Physio in a treatment plan/OCF-18 dated July 22, 2020?

iii. Is the applicant entitled to $2,460.00 for a driving evaluation assessment, proposed by 101 Assessments in a treatment plan/OCF-18 dated August 12, 2020?

iv. Is the applicant entitled to $2,460.00 for a psychological assessment proposed by 101 Assessment in a treatment plan/OCF-18 dated October 30, 2019?

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

RESULT

3I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

4Having found that the applicant sustained a minor injury as a result of the accident, he is not entitled to the disputed OCF-18s because they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment.

5Given there are no benefits owed, or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of 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.

8Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive funding for treatment beyond the $3,500.00 limit if they can provide evidence of an injury that is not included in the minor injury definition.

9It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. (See: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).)

10The applicant submits he suffered from pre-existing impairments, psychological impairments, and chronic pain as a result of the accident and these injuries fall outside of the definition of a minor injury and is therefore entitled to treatment beyond the $3,500.00 MIG limit. The respondent submits the applicant has failed to meet his evidentiary onus, as the evidence tendered does not support the position that he suffered any physical or psychological impairments, nor any chronic pain symptoms that fall outside the scope of the MIG. I agree with the respondent.

The applicant has not established he suffers from a pre-existing impairment that precludes his recovery in the MIG

11I am not persuaded the applicant has established on a balance of probabilities that he suffered from any pre-existing condition which would otherwise preclude his recovery following the accident if he is subject to the MIG and the $3,500.00 treatment funding limit.

12Pursuant to s. 18(2) of the Schedule, a pre-existing condition does not automatically exclude a person’s impairment from the MIG. Such a condition must have been documented by a health professional before the accident and shown to prevent maximal medical recovery within the cap imposed by the MIG.

13The applicant submits he suffered from pre-existing back pain that was exacerbated by the subject accident. However, the pre-accident clinical notes from CHN Family Practice & Walk In indicate only three reports of pre-accident back or neck pain. The first was on May 16, 2017, when the applicant reported back pain for three days and that his job required repetitive stress on his back. The second, on June 12, 2017, included a diagnosis of mechanical back pain. The applicant was further advised to take Advil or Tylenol as required and to seek physical therapy. The third, on June 10, 2019, indicated that the applicant was suffering from neck and shoulder pain related to his employment as a truck driver, working for 10-12 hours a day. He was diagnosed with neck and back strain as result.

14In my view, these three entries over a two-year period are insufficient to establish a pattern of reported back or neck pain. This also accords with the applicant’s self-reporting to L. Grinberg, registered psychotherapist, in the applicant’s psychological assessment report dated April 8, 2020, where he denied any chronic or pre-existing conditions. Similarly, in two of the tendered insurer’s examination reports, the applicant reported to Dr. A. Marino, psychologist, that he had no chronic health issues and to Dr. R. Tse, physician, that he had an unrelated pre-existing condition.

15Additionally, the applicant has failed to establish his pre-accident sleep issues would prevent maximal recovery within the MIG. The clinical notes and records indicate only sporadic reporting of sleep issues. On June 13, 2017 it was noted he occasionally woke up due to shortness of breath. On January 15, 2019, it was noted that the applicant was likely suffering from sleep apnea and referred to a sleep study. The Sleep Study Report dated April 15, 2019 was non-diagnostic due to insufficient sleep. Otherwise, there were no reports of sleep disturbance related to the accident in any of the clinical notes and records tendered. However, the applicant reported to Dr. Marino, psychologist, in the report dated November 24, 2020, that his sleep had improved since the accident, that he was not experiencing nightmares or nocturnal awakenings, and that he was attaining seven hours of sleep per night.

16When I consider the totality of the evidence tendered, the applicant has failed to provide compelling medical evidence of a pre-existing condition preventing maximal recovery within the MIG. Even if I were to place weight upon the applicant’s reports of pre-accident back/neck pain and sleep disturbances, he has not established how his recovery would be impaired by these pre-existing conditions. Additionally, the applicant stated to his own assessor and the insurance assessors that he was not suffering from a pre-existing condition prior to the accident.

The applicant has not established he suffered accident-related psychological impairment

17I am not persuaded the applicant has adduced sufficient evidence to establish he suffered an accident-related psychological impairment.

18The OCF-18 dated October 30, 2019 by Dr. P. Waxer, psychologist, listed a number of accident-related psychological symptoms in the additional comments section. These included depressive symptoms, sadness/low mood, isolation, negative thinking, sleep disturbances, nightmares, flashbacks, fatigue, and driver anxiety. However, I place no weight upon these observations, as they remain wholly unsupported by the clinical notes and records tendered.

19Similarly, I place little weight on the applicant’s psychological assessment report by L. Grinberg, registered psychotherapist, and Dr. P. Waxer dated April 8, 2020. Following a clinical interview and psychometric testing by telephone the applicant was diagnosed with somatic symptom disorder with predominant pain, severe. Sixteen sessions of psychotherapy were recommended, as was a cognitive assessment, and a driving evaluation. However, at the outset of the report, it is clear that Ms. Grinberg has a supervised practice and Dr. Waxer was the supervising psychologist. It remains unclear who conducted the clinical interview and psychometric testing in support of the diagnosis rendered. As a registered psychotherapist, Ms. Grinberg is not qualified to render a psychological diagnosis and Dr. Waxer’s involvement in this assessment remains unclear, although he co-signed the report. This uncertainty markedly reduces any weight attributed to this report. Otherwise, I view this report as an outlier, as there were no reports of any psychological symptoms in any of the clinical notes and records tendered.

20Conversely, I place weight upon the insurer’s examination (“IE”) psychological reports prepared by Dr. A. Marino, psychologist, dated January 21, 2020 and November 24, 2020. Dr. Marino conducted two in-person assessments. In the first assessment, following a review of the documents provided, a clinical interview, and six psychometric tests, Dr. Marino concluded the applicant did not present with any functional impairments from a psychological standpoint. He indicated that no psychological treatment was warranted. Similarly, in his re-assessment report following the receipt of Ms. Grinberg and Dr. Waxer’s report, he conducted an additional clinical interview and administered four additional psychometric tests. He again concluded the applicant did not present with any significant psychological diagnosis. Further, the applicant reported that he felt well from a psychological perspective and was not interested in any psychological treatment.

21Dr. Marino raised further concerns regarding the reliability of Ms. Grinberg and Dr. Waxer’s assessment report dated April 8, 2020. During his second clinical interview with Dr. Marino, the applicant denied meeting or speaking with Dr. Waxer, was unaware of the recommended psychological treatment, and was surprised that 16 treatment sessions were considered necessary.

22Considering the evidence, the applicant has failed to establish any accident-related psychological impairment that would fall outside of the MIG and the prescribed definition of a minor injury. This is in light of the conspicuous lack of any psychological symptom reporting in the clinical notes provided, the weaknesses of the report prepared by Ms. Grinberg, and Dr. Waxer, and the strength of both of Dr. Marino’s IE reports.

The applicant has not established he suffers accident-related chronic pain

23The applicant has not established he suffers chronic pain causing a functional impairment as result of the accident.

24I have been provided with no compelling evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on his functionality. The applicant failed to make any reference to potential chronic pain or a chronicity of pain symptoms tied to the index accident. The applicant only referred to post-accident pain on two occasions, the first on October 1, 2019 within days of the accident, and the second more than three-years post accident on April 26, 2022. Aside from this sporadic reporting of pain symptoms, the clinical notes fail to demonstrate that the applicant suffered any functional impairment due to ongoing accident-related pain.

25I place weight upon the IE report provided by Dr. R. Tse, physician, dated October 19, 2020. Following a physical assessment, Dr. Tse concluded the applicant’s accident-related impairments were soft-tissue in nature and consistent with cervical and lumbar strain. Dr. Tse further indicated these were minor injuries as defined in the Schedule. He found that a chronic pain assessment was not reasonable and necessary, or essential as a direct result of the subject accident.

26Furthermore, the applicant fails to particularize any of his chronic pain symptoms despite his submission that he “experiences almost all” of the six criteria utilized in the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”), to determine chronic pain.

27Instead, the clinical notes and records fail to establish the applicant met three of the six AMA Guides criteria to demonstrate that he suffers from chronic pain as a result of the index accident. The records do not establish abuse or dependence upon prescription drugs, excessive dependence upon health care providers or family, any secondary deconditioning due to disuse or fear-avoidance, no withdrawal from social milieu, failure to restore pre-injury function insufficient to pursue work, family, or recreational needs, nor any psychosocial sequelae stemming from the accident.

28Given the sporadic reports of pain and a lack of functional impairment related to the accident, I cannot otherwise conclude the applicant suffers from chronic pain sufficient to remove him from the treatment limits of the MIG. This is based on the lack of evidence tendered, the strength of Dr. Tse’s IE report, and the applicant’s failure to demonstrate any chronic pain symptoms related to the AMA Guides criteria.

The applicant is not entitled to the treatment plans in dispute

29Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans, as they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.

The applicant is not entitled to interest

30Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

31The application is dismissed, and I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the disputed treatment plans, as they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment;

iii. The applicant not entitled to interest pursuant to s. 51 of the Schedule.