Atie v. Aviva General Insurance Company, 2023 CanLII 84401
Licence Appeal Tribunal File Number: 20-012054/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:
Khalil Atie
Applicant
And
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Anita Goela
APPEARANCES:
For the Applicant:
Maziar Mortezaei, Counsel
For the Respondent:
James Kolumbus, Counsel
HEARD:
In Writing
OVERVIEW
1Khalil Atie, the applicant, was involved in an automobile accident on January 19, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The 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 medical services proposed by Mississauga Active Physiotherapy Services as follows:
a. $202.00 ($1,339.00 less $1,137.00 approved) for physiotherapy services, in a treatment plan (“plan”) denied May 13, 2019?
b. $2,078.00 for physiotherapy services, in a plan denied September 4, 2019?
c. $1,758.71 for an in-home assessment, in a plan denied October 14, 2020?
d. $1,750.00 for a Functional Abilities Evaluation, in a plan denied February 14, 2019?
e. $2,200.00 for a chronic pain assessment, in a plan denied January 4, 2021?
iii. 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?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is subject to the MIG.
5The applicant is not entitled to the disputed benefits, award or interest.
ANALYSIS
Minor Injury Guideline
6The applicant bears the onus of proving, on a balance of probabilities, that he is not subject to the MIG. I find that he has not satisfied the onus.
7For the reasons that follow, I find that the applicant’s injuries meet the definition of minor and that he has not met his onus of proving that his psychological impairment or chronic pain are accident-related.
8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustained impairments that are predominantly a minor injury in accordance with the MIG.
9Section 3(1) defines a “minor injury.” This definition includes “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and clinically-related sequelae.” The applicant submits that he is not subject to the MIG because of accident-related psychological injuries and chronic pain, which are not covered by the definition of “minor injury.”
10Section 18(2) provides that the MIG does not apply if the insured has a documented pre-existing injury or condition that precludes maximal medical recovery if confined to the MIG. The applicant did not provide any submissions related to this factor for removal.
11In support of the applicant’s position, he relies on the clinical notes and records (CNR) from his chiropractor, family physician and s. 25 reports, including a functional capacities evaluation and chronic pain report.
12The respondent’s position is that the applicant is subject to the MIG and has not met his evidentiary onus for removal. The respondent raises concerns with the quality and reliability of the applicant’s medical evidence.
Physical impairments
13The applicant submits that his injury is not minor because he suffers from chronic pain and psychological impairment. He submits that his physical injuries include sprains and strains, pain to various area of his body, sleep disturbances, low mood and anxiety.
14The applicant's few, and sporadic, attendances with his family physician following the accident, are inconsistent with an injury that is more than minor. The applicant visited his family physician, Dr. Ramtin Samie, 10 days after the accident. He complained of shoulder, neck and back pain. The next visit was 6 months later for pain regarding arm, leg and back. The following visit was 3 years later, complaining of neck, shoulder, back and leg pain. I find that the significant gaps in visiting Dr. Samie, and the fact that there were relatively few visits, weakens the applicant’s position that his accident-related injury was more than minor.
15I have reviewed the CNRs from the applicant's chiropractor and find them to lack clarity with respect to the status and progress of the applicant's accident-related injuries. As the respondent pointed out, for example, the notes frequently contained inconsistent comments such as "no change" and "aggravation" at the same visit. As a result I give the chiropractor's CNRs little weight. The applicant received chiropractic therapy following the accident. I agree with the respondent that the CNR are unclear regarding the status and progress of the applicant’s accident-related injuries.
16The applicant submitted an x-ray in support of his position but did not provide a medical expert opinion that connected how the findings of the x-ray demonstrated accident-related injuries.
17According to some medical assessors, including the applicant’s own s. 25 Functional Capacities Evaluation assessor, there is a concern that the applicant is exaggerating his complaints. The respondent highlights that the s. 25 Functional Capacities Evaluation assessor found that the applicant gave a self-limited effort with only 6 out of 15 consistency measures within expected limits. The applicant did not provide an explanation for this and I find that it weakens the applicant’s credibility regarding his accident-related impairments.
18Overall, I do not find that the applicant has demonstrated, on a balance of probabilities, that his physical injuries were more than minor.
Psychological impairments
19I do not find that the applicant provided reliable evidence that he suffers from an accident-related psychological impairment. Other than a psychiatry referral on June 28, 2022, there are no reports in the CNR of Dr. Samie regarding accident-related psychological impairment. Dr. Grigory Karmy, chronic pain specialist, and Dr. Collins Egbujuo, general practitioner, both opined that the applicant sustained accident-related psychological impairments, based on the applicant’s self-reports. Dr. Samie, Dr. Karmy and Dr. Egbujuo refer the applicant for psychological treatment, but the evidence provided for those referrals is insufficient for me to determine that the applicant suffers from an accident-related impairment. I found the notations related to sleep disturbance, low mood, anxiety and passenger anxiety to be relevant but holistically, I did not find that the CNR persuaded me that the applicant suffers from an accident-related psychological impairment. Specifically, there were no complaints in the CNR of Dr. Samie prior to the psychiatric referral and I found this difficult to reconcile with the recommendations for psychological treatment.
20The applicant submits that he suffers from accident-related chronic pain. He submits that he meets all six of the criteria used by the American Medical Association to diagnose chronic pain. Although the AMA criteria for chronic pain are not binding on this Tribunal, I am persuaded to apply them here, particularly since the applicant relies on them for his case. That said, I agree with the respondent that the applicant’s medical evidence does not support that he meets the criteria. He did not demonstrate excessive dependence on painkillers, which is supported in the report of Dr. Karmy. His limited visits with Dr. Samie do not demonstrate excessive reliance on health care providers. He has not demonstrated physical deconditioning. I do not find that the applicant has persuaded me that following the accident he has experienced withdrawal from social milieu, failure to restore pre-injury function such that physical capacity is insufficient to pursue work, family or recreational needs, and development of psychosocial sequelae including anxiety, fear avoidance and depression.
21Finally, he has not demonstrated functional limitation. While all of the criteria are relevant in the analysis, this Tribunal has repeatedly found that evidence of functional limitation or impairment is essential when an applicant claims to be impaired by chronic pain: See Y.S.L. v. Security National Insurance Company, 18-0033354/AABS, 2017 CanLII 149039 (ON LAT). He continues to be independent in his self-care, perform modified housekeeping duties, drive, accompany his wife to medical appointments and enjoy watching sporting events.
22For the reasons above, I do not find that the applicant has met his onus that he suffers from accident-related chronic pain.
Award and Interest
23The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
24As I have found that no benefits are owing, the applicant is not entitled to an award or interest.
ORDER
25The applicant is subject to the MIG.
26No benefits are owing.
27The application is dismissed.
Released: September 13, 2023
Anita Goela
Adjudicator