Citation: Sikandari v. BelairDirect Insurance Company, 2023 ONLAT 21-003820/AABS

Licence Appeal Tribunal File Number: 21-003820/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:

Ali Sikandari

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Carla Barcelo, Paralegal

For the Respondent:

Robbie Brar, Counsel

HEARD:

By Way of Written Submissions

1Ali Sikandari, the applicant, was involved in an automobile accident on January 17, 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 Belair Direct Insurance Company, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are to be decided:

i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?¹

ii. Is the applicant entitled to $1,845.72 for a psychological assessment proposed by Svetlana Gabidulina in a treatment plan (“OCF-18”) submitted March 19, 2019?

iii. Is the applicant entitled to $3,090.09 for chiropractic services proposed by Solmaz Zanjani in an OCF-18 submitted April 8, 2019?

iv. Is the applicant entitled to $2,688.66 for chiropractic services proposed by Solmaz Zanjani in an OCF-18 submitted July 30, 2019?

v. Is the applicant entitled to $4,164.59 for psychological services proposed by Svetlana Gabidulina in an OCF-18 submitted September 26, 2019?

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

RESULT

3I find that:

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

ii. The treatment plans in dispute are not payable; and

iii. The applicant is not entitled to interest.

ANALYSIS

4On January 17, 2019, the front end of the applicant’s vehicle was struck by a third-party driver. The airbags did not deploy. The applicant was admitted to the Emergency Department at Mackenzie Richmond Hill Hospital, x-rays completed were unremarkable. He was prescribed pain medication and advised to take Advil.

APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)

5The 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.”

6Section 8(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.

7An 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.

8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

9The respondent approved medical benefits up to the statutory limit of $3,500.00.

10The applicant submits that he should be removed from the MIG on the basis that both his physical and psychological impairments are not considered a minor injury and cannot be treated within the MIG.

Did the applicants suffer physical injuries that warrant the removal from the MIG?

11I find that the applicant has failed to prove, on a balance of probabilities, that he suffered from physical injuries that are not predominately minor in nature as defined in the Schedule, as it has not been substantiated by medical evidence.

12On January 17, 2019, the date of the accident, the applicant was admitted to the Emergency Department at Mackenzie Richmond Hill Hospital, the applicant had x-rays ordered on his left leg, right shoulder, and lower back. The Clinical Notes and Records (“CNRs”) from Mackenzie Richmond Hill Hospital provide there were no fractures. The applicant was prescribed pain medication, advised to take Advil and to follow up with his family physician.

13The applicant relies on the CNRs of Dr. Afshin Mobarakeh, family physician. The applicant attended the office of Dr. Mobarakeh with neck, lower back and left knee pain and headaches. Dr. Mobarakeh did not refer the applicant to any medical specialist or provide pain medication. Dr. Mobarakeh recommended the applicant continue with physiotherapy. The applicant also relies on the CNRs from chiropractic examinations at Life Point Medical at which time the applicant self rated his pain. The June 18, 2021, CNRs of Dr. Vicenzo Basile, neurologist, provide that the applicant is symptom-free, and feels back to his normal self, it was recommended that should continue with Advil if he has a headache. Nothing here supports the applicant’s claims to suffering physical pain that would warrant his removal from the MIG.

14The applicant also relies on the Disability Certificate (“OCF-3”) completed by Mr. Solmaz Zanjani, chiropractor, who noted the applicant’s injuries as sprains and strains, while also mentioning nervousness and anxiety. In my opinion, it is beyond the scope of the chiropractor to opine on the applicant’s cognitive ability, and the remainder injuries identified are minor.

15I am persuaded by the medical opinion of the respondent’s Insurer Examination (“IE”) assessor, Dr. Paul Tepperman, occupational health physician. Dr. Tepperman completed a physician assessment report, dated April 10, 2019, and concluded that the applicant suffered uncomplicated soft tissue injuries, finding no objective evidence of musculoskeletal or neurological impairment. Furthermore, the respondent relies on the Physician Paper Review, completed by Dr. Tepperman dated April 23, 2019. Dr. Tepperman did not interview the applicant for these findings but rather a review of documentation surrounding the applicant. Dr. Tepperman concluded that the applicant suffered a myofascial strain of his cervical and lumbar paraspinal musculature, post-traumatic headaches, and left knee strain as a result of the accident. Dr. Tepperman opined that the applicants’ injuries should resolve within 9-12 weeks following the accident, as injuries were minor.

16After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffers physical injuries that would remove him from the MIG. I am persuaded by the medical opinion of Dr. Tepperman, which is consistent with the sprains and strains mentioned by Mr. Zanjani.

17As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has a physical injury resulting from the accident that would warrant his removal from the MIG.

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

18I find that the applicant has failed to prove, on a balance of probabilities, that he sustained a psychological injury that is not predominately minor in nature as defined in the Schedule.

19An 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.

20In 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.

21The applicant submits that his psychological impairments are well documented and warrant removal from the MIG.

22The applicant relies on the CNRs of Mr. Zanjani, chiropractor, and Mr. Chan, chiropractor that following their assessments concluded that the applicant had sleeping problems, anxiety, nightmares. As stated above, in my opinion, it is beyond the scope of the chiropractor to opine on the applicant’s cognitive ability, and as such I do not find this persuasive.

23The applicant further relies on the psychological rehabilitation pre-screening report, dated February 20, 2019, by Dr. Sventlana Gabidulina, psychologist. Dr. Gabidulina, completed the Automobile Anxiety Inventory, and opined the applicant had “situational (isolated) phobias, moderate; and depressive episode, moderate.” The recommendation was a full assessment. The applicant underwent a psychological assessment in March 2019. Dr. Gabidulina concluded that the applicant had depression, a severe level of general anxiety, and recommended psychological treatment.

24In the applicant’s submissions, Dr. Gabidulina’s findings is referenced in Tab 16 of the application record, I note that Tab 16 and Dr. Gabidulina’s reports were not in the submissions to the Tribunal. Therefore, I was unable to review the reports.

25By contrast, the respondent relies on the IE psychological assessment report, dated May 2, 2019, by Dr. Fabio Salerno, psychologist. The report concluded that the applicant did not have a psychological impairment as a result of the accident, as there was insufficient evidence in support of a DSM-5 psychological diagnosis and the applicant’s prognosis was very good.

26I prefer and adopt the findings of Dr. Salerno, his findings are supported by a comprehensive psychological assessment and an extensive psychometric test. This conclusion is consistent with Dr. Mobarakeh’s CNRs, which include virtually no reference to psychological injuries. The CNRs provided from February 2019- June 2020 reveal one reference to driving anxiety on February 25, 2019. I find this reference to a self identified symptom is insufficient to find that the applicant sustained a psychological injury as a result of the injury. Lastly, the applicant has not attended any psychological counselling since the accident which was 4 years ago. Even if the findings of Dr. Gabidulina’s evidence are taken in its totality this suggests to me the psychological complaints, if any, are minor.

27Accordingly, I find that the applicant has not sustained a psychological injury as a result of the accident that cannot be addressed within the MIG.

THE DISPUTED TREATMENT PLANS

28The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG’s limit. As a result, any analysis on whether the treatment plans are reasonable and necessary is not required.

INTEREST

29Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest.

ORDER

30I find that:

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

ii. The treatment plans in dispute are not payable; and

iii. The applicant is not entitled to interest.

31The application is dismissed.

Released: August 28, 2023

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