Citation: Munir v. Economical Mutual Insurance Company, 2023 ONLAT 21-002118/AABS

Licence Appeal Tribunal File Number: 21-002118/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:

Talha Munir

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Muhammad Aftab Alam, Counsel

For the Respondent:

Modasir Rajabali, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Talha Munir (the “applicant”) was involved in an automobile accident on April 14, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by Economical Mutual Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES IN DISPUTE

2The following issues are agreed to be in dispute:

Are the applicant’s injuries predominantly minor as defined in s. 3(1) of the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (“MIG”)?
Is the applicant entitled to the following medical benefits proposed by Shadlock Physio and Wellness Clinic?

i. $1,330.51 ($2,006.86 less $676.35 approved) for physiotherapy in a treatment plan (“OCF-18”) dated September 26, 2018;

ii. $2,287.24 for physiotherapy in an OCF-18 dated September 26, 2018;

iii. $2,693.75 for physiotherapy in an OCF-18 dated September 21, 2019; and

iv. $2,693.75 for physiotherapy in an OCF-18 dated August 19, 2020.

Is the applicant entitled to the following cost of examination expenses proposed by Pearson Medical Assessment Centre?

i. $2,200.00 for a psychological assessment in an OCF-18 dated February 13, 2019;

ii. $1,651.00 for an in-home assessment in an OCF-18 dated July 23, 2019;

iii. $2,000.00 for an orthopedic assessment in an OCF-18 dated September 16, 2019;

iv. $2,200.00 for a chronic pain assessment in an OCF-18 dated October 2, 2019;

v. $2,000.00 for a physiatry assessment in an OCF-18 dated December 6, 2019; and

vi. $2,200.00 for a psychological assessment by Pearson Medical Assessment Centre in an OCF-18 dated March 9, 2021.

Is the applicant entitled to a medical benefit in the amount of $191.64 for medication submitted on an expense form (“OCF-6”) on July 24, 2018?
Is the applicant entitled to a medical benefit in the amount of $25.95 for medication submitted on an OCF-6 on July 24, 2020?
Is the applicant entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3I find that:

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

ii. The applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, therefore the treatment plans and expenses in dispute are not payable;

iii. The applicant is not entitled to interest, as there are no overdue benefits;

iv. The applicant is not entitled to an award, as there are no overdue benefits.

BACKGROUND

4The applicant was the driver of a vehicle involved in an accident on April 14, 2018 near the intersection of Church St. and Maitland St. in Toronto. He was stopped on the side of the road when another vehicle rear-ended him on the driver’s side. Paramedics attended the scene of the collision, but the applicant refused treatment or transportation to hospital.²

5In the days following the accident, the applicant visited his family physician, Dr. Kristen Scavuzzo, with complaints of injuries to his neck/left shoulder, left biceps/upper arm, left knee, and back.³ The applicant also reported headaches, sleep disorders, and psychological symptoms as a result of the accident in follow-up appointments with Dr. Scavuzzo.⁴ He received physical therapy for these injuries, which was funded by the insurer under the MIG until the $3,500.00 funding limit was exhausted.

6The applicant submits that he has sustained more than a predominantly minor injury as a result of the accident due to chronic pain and psychological impairments. He further argues that the treatment plans and expenses in dispute should be treated outside of the MIG, and that the plans and expenses in dispute are reasonable and necessary. He claims interest on the medical benefits in dispute, as well as an award pursuant to s. 10 of Reg. 664.

7The respondent takes the position that the applicant’s injuries fall within the definition of a minor injury as defined in s. 3(1) of the Schedule, and that the medical benefits in dispute have not been proven to be reasonable and necessary regardless of the applicant’s MIG status.

8Both the applicant and the respondent agree that the MIG treatment limit of $3,500.00 has been exhausted.

ANALYSIS

The Minor Injury Guideline (MIG)

9The MIG establishes a framework of treatment 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 also defined in the Schedule.

10Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive funding for treatment beyond this limit if they can demonstrate through compelling medical evidence that a pre-existing condition, documented by a medical practitioner prior to the accident, prevents maximal medical recovery under the MIG. Chronic pain with a functional impairment and/or a psychological impairment also fall outside of the MIG definition of a minor injury.

11If an insurer deems an applicant’s injuries to be minor in nature, the evidentiary onus is on the applicant to establish that the MIG and its related $3,500.00 funding limit should not apply.⁵

Are the Applicant’s Injuries Minor Injuries?

12I am not persuaded that the applicant has demonstrated that his accident-related impairments warrant removal from the MIG. The applicant has offered limited objective medical evidence to suggest that he suffers from a chronic pain condition or from psychological impairments that would fall outside of the definition of a minor injury under s. 3(1) of the Schedule.

Does the Applicant Suffer From a Chronic Pain Condition?

13I am not persuaded that the applicant suffers from chronic pain. The applicant presents limited medical evidence beyond self-reported complaints regarding ongoing pain symptoms. This is not a substitute for a medical analysis leading to a formal diagnosis of a chronic pain condition.

14The applicant relies primarily on the clinical notes and records (“CNRs”) and reports of two physicians regarding the physical component of his chronic pain complaints. Dr. Alireza Kachooie, physiatrist, examined the applicant and wrote a report dated November 19, 2018.⁶ Dr. S.W. Joseph Wong, physiatrist, assessed the applicant and filed a report dated May 27, 2021.⁷

15Dr. Kachooie does not assess whether the applicant suffers from a chronic pain condition. He concludes that the applicant suffers from mild chronic C6 radiculopathy and mild carpal tunnel syndrome, although there is no evidence linking these issues to the accident.⁸ Diagnostic imaging ordered by Dr. Kachooie reveals mostly “normal” and “unremarkable” results.⁹ An ultrasound shows supraspinatus tendinosis in the applicant’s left shoulder, although there is nothing to indicate that this condition is connected to the subject accident.¹⁰

16Dr. Wong diagnoses the applicant with chronic pain due to several soft-tissue injuries resulting in ongoing back pain and cervicogenic headache. But I assign his report little weight as it relies heavily on the self-reported complaints of the applicant. Dr. Wong’s examination of the applicant also reveals only minor restrictions to the range of motion in his back and moderate swelling and tenderness of the left knee.¹¹ However, Dr. Wong still concludes that the applicant is suffering from chronic pain likely to be permanent in nature.¹² This conclusion does not align with Dr. Wong’s examination of the applicant, or the medical imaging.

17There are also key inconsistencies in the applicant’s evidence. While the applicant informed his family physician that he hit his head against the interior window glass of his vehicle during the accident,¹³ he initially denied hitting his head to ambulance personnel who attended the scene.¹⁴ Although the applicant claims functional disabilities as a result of the accident and that he left a job as a casino auditor as a result of injuries sustained in the accident, he also reports starting his own business as a wholesale seller of cellular phone accessories in 2018.¹⁵

18I prefer the report of Dr. Mohamed Khaled, general physician, dated March 23, 2021.¹⁶ This insurer’s examination (“IE”) assessment contains notations about the applicant’s uncomplicated “soft-tissue injuries” that present without evidence of “significant orthopaedic or neurological sequelae.”¹⁷ Range-of-motion testing revealed “subjective limitations that can likely be attributed to pain anticipation.”¹⁸ Dr. Khaled diagnosed the applicant with left knee and left arm sprain/strain as a result of the accident, but with a “good prognosis for a complete functional recovery.”¹⁹

19Although Dr. Khaled does not specifically assess whether the applicant suffers from a chronic pain condition, he does conclude that the applicant experienced minor injuries in the accident that could be treated within the limits of the MIG. I infer from this conclusion that Dr. Khaled saw no indication of chronic pain.

20Dr. Khaled assessed the applicant as being almost fully functional and concluded that he suffered from no impairments. This conclusion speaks to the chronic pain question without referring directly to it, as it is accepted that for a chronic pain condition to rise to the level of no longer being a minor injury, it must be accompanied by a functional impairment.

21The respondent refers to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”), and submits that the applicant does not meet at least five of the six criteria, although only three are required for a diagnosis of chronic pain, according to the Guides.²⁰ The criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

22Although the applicant is not required to meet the test as set forth in the Guides in order to be successful at proving a diagnosis of chronic pain, I accept it as a useful tool. Moreover, I find the respondent’s analysis that the applicant does not meet at least five of the six criteria listed in the Guides to be persuasive.

23The applicant has not noted any dependence on prescription medication in his evidence, or cited any excessive dependence on health care providers. While the applicant claims withdrawal from social settings and work, as well as failure to return to a pre-injury level of function, there is no evidence of this beyond the self-reporting of the applicant, and that is at least somewhat contradicted by him starting a business post-accident. The applicant’s psychological reports contain significant contradictions, while the respondent’s psychological assessment results in conclusions of symptom amplification (see below).

24As a result of the above, I find that the applicant has not demonstrated that he suffers from a chronic pain condition.

Does the Applicant Suffer From Psychological Injuries?

25I am not persuaded that the applicant suffers from a psychological impairment that would warrant removal from the MIG. The applicant submits inconsistent and contradictory evidence regarding psychological issues, and an IE submitted by the respondent shows evidence of symptom amplification.

26I favour the conclusions of Dr. Arnold Rubenstein, psychologist, with regard to the applicant’s psychological complaints. Dr. Rubenstein notes in an IE report dated March 25, 2019²¹ that the applicant displayed “amplification of symptoms related to somatic, affective, psychiatric and cognitive function” that “makes it difficult if not impossible to lend validity to other test scores.”²² He further opines that the applicant’s test results are “relatively common in personal injury circumstances in which the individual is claiming a broad range of physical and mental health problems in order to portray disability.”²³ As a result, Dr. Rubenstein concludes that the applicant has “not sustained any diagnosable psychological impairments as a direct result of the subject accident.”²⁴

27I assign limited weight to the psychological evidence of the applicant. I find the reports provided by Dr. Tony Toneatto, psychologist,²⁵ and Dr. Liaqat Ali,²⁶ psychiatrist, to be overly reliant on the self-reported complaints of the applicant as well as contradictory with regard to significant details about the applicant’s life following the accident.

28Dr. Toneatto’s initial consultation report dated August 21, 2018 consists of a brief single paragraph that includes only the applicant’s self-reported complaints.²⁷ Dr. Toneatto’s full psychological assessment report dated October 18, 2019 notes a diagnosis of the applicant “tentatively” with Somatic Symptom Disorder, post-traumatic stress disorder, and depression, and a conclusion that the applicant’s injuries fall outside the Schedule’s definition of a minor injury.²⁸ But Dr. Toneatto has no basis for these conclusions outside of the self-reported claims of the applicant during an interview and during testing. He did not review any other medical reports in the context of making his assessment of the applicant.

29In a report dated April 3, 2021, Dr. Ali supports the conclusions of Dr. Toneatto.²⁹ Again, however, these conclusions are based almost entirely (Dr. Ali reviewed the applicant’s medical records in the context of writing his report) on the self-reported claims of the applicant in both an interview and in testing. Dr. Ali also claims that the applicant “is failing in all important areas of his life,”³⁰ which is not supported by the other evidence, particularly with regard to his starting a new business post-accident.

30The Dr. Toneatto and Dr. Ali reports contradict one another in important areas. Most notably, Dr. Ali notes the applicant saying he does not want to worry his family “back home,” and cites that they still live in the applicant’s original home country of Pakistan.³¹ But Dr. Toneatto describes the applicant’s parents as living in Markham.³² Dr. Ali also notes that the applicant claims to reside in a house with four friends and that the accident caused issues keeping up with his household responsibilities.³³ But Dr. Toneatto writes that the applicant told him that he resided at home in Markham with his parents and siblings and that the accident caused him to curtail his responsibilities to them, including grocery shopping and snow removal.³⁴

31It is challenging to reconcile the conflicting reports of Dr. Toneatto and Dr. Ali. That these reports are at odds in such significant ways with regard to the applicant’s self-reported impairments and their impact on his life undermines their reliability as evidence. This lack of consistency in the applicant’s account also helps validate the conclusions of Dr. Rubenstein.

32As a result of the above, I find that the applicant has not demonstrated that he suffers from psychological impairments that fall outside of the Schedule’s definition of a minor injury and warrant his removal from the MIG. The psychological diagnoses that the applicant has received are not supported by a preponderance of the evidence.

The Treatment Plans and Expenses

33All of the treatment plans in dispute propose treatment outside of the MIG and its $3,500.00 funding limit on treatment, which has been exhausted. The applicant is not entitled to any of the medical benefits in dispute because he sustained a minor injury and is subject to the MIG.

Interest and Award

34As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

35As no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed any such benefits pursuant to s. 10 of Reg. 664. Thus, no award is payable.

CONCLUSION AND ORDER

36I find that: