Licence Appeal Tribunal File Number: 21-000233/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:
Mian Wadood
Applicant
and
Economical Insurance
Respondent
DECISION AND ORDER
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the Applicant:
Maria Makarova, Paralegal
For the Respondent:
Modasir Rajabali, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1The applicant was involved in an automobile accident on September 30, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are before the Tribunal:
i. Are the applicant’s injuries predominantly minor as defined in the Minor Injury Guideline?
ii. Is the applicant entitled to the following medical benefits for physiotherapy recommended by Heartland Wellness as follows:
a. $4,264.57 submitted October 11, 2019?
b. $220.04 (being $1,320.28 less the amount of $1,100.24 partially approved)?
c. $2,110.03 submitted February 18, 2020?
iii. Is the applicant entitled to the following cost of examinations recommended by Tier 1 Assessments as follows:
a. $2,516.36 for an OT assessment?
b. $2,610 for a psychological assessment?
c. $2,460 for a chronic pain assessment?
iv. Is the applicant entitled to a non-earner benefit in the weekly amount of $185 from January 7, 2021, to date and ongoing?
v. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Ontario Regulation 664?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor, as defined by the Minor Injury Guideline.
4The applicant is not entitled to a non-earner benefit in the weekly amount of $185.00 for the period of January 10, 2021, until September 30, 2021.
5The applicant is not entitled to an award section 10 of Ontario Regulation 664.
6The applicant is not entitled to interest
7The application is dismissed.
Minor Injury Guideline (MIG)
8Section 3(1) of the Schedule states that a minor injury consists of one or more: sprains, strains, whiplash-associated disorders, contusions, abrasions, lacerations or subluxations and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries. Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury, the total cost of their medical and rehabilitation benefits payable shall not exceed $3,500.00.
9Section 18(2) of the Schedule provides that the $3,500.00 funding limit does not apply if an insured provides compelling medical evidence that they have a pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the MIG funding limit. The Tribunal has also determined that psychological impairments or chronic pain with functional impairment may warrant removal from the MIG. The applicant must establish entitlement to coverage beyond the $3,500 cap for minor injuries.
10The applicant submitted that his accident-related injuries warrant exclusion from the MIG due to his concussion, pre-existing conditions, chronic pain syndrome and psychological injuries. The respondent submitted that the applicant suffered minor injuries as a result of his accident and has not shown that he suffered from a concussion, pre-existing conditions, chronic pain, or psychological injuries that warrant removal from the MIG.
Concussion
11The applicant submitted that as a result of his accident, he suffered a concussion and was rendered fully unconscious and therefore, his injuries fall outside the MIG. The respondent disagreed.
12Concussions and post-concussion issues, if established, fall outside the MIG, because:
a. The MIG relates only to “minor injuries”, as defined in section 3(1) of the Schedule, and the definition does not include brain injuries.
b. Concussion and post-concussion syndrome are brain injuries, according to recognized health authorities such as Health Guide Canada and the American Association of Neurological Surgeons (“AANS”).
13To support this position, the applicant relied on the Ambulance Call Report of Headwaters Health Care dated September 30th, 2019, which the applicant argued noted that the applicant was very drowsy, had a temporary loss of consciousness, a concussion and a Glasgow Coma Scale rating of 14, meaning the applicant suffered a mild head injury.
14In addition, the applicant relied on the disability certificate (“COF-3”) of Susan Jones, physiotherapist, the psychological pre-screen report of Dr. Erin Langis, psychologist, the clinical notes and records of Dr. Ihsan Waraich, physician, and the Functional Abilities Evaluation (“FAE”) of Dr. Adib Asharf, chiropractor, which all found the applicant sustained a concussion or concussion symptoms as a result of his accident.
15The respondent submitted that the applicant has not proven that he suffered from a concussion as a result of his accident. The respondent submitted that the Ambulance Call Report was actually his Emergency Treatment Record and that it did not state that the applicant suffered a “concussion” but rather a “contusion”, which the applicant misread in the handwritten notes. Moreover, the respondent submitted this evidence demonstrates that the applicant had a mild head injury and not a concussion or neurological injury.
16The respondent submitted that the Insurer’s Examination (“IE”) of Dr. Dubravka Dodig, neurologist, found that the applicant did not suffer from a neurological impairment as a result of his accident.
17The respondent submitted that Dr. Waraich’s evidence did not support the applicant’s position and that Dr. Ashraf’s report was of little value, as the doctor is not qualified to diagnose a concussion.
18The respondent relied on the matter of Davidenko v Unifund Assurance Company, 2021 CanLII 13189 (ON LAT) (“Davidenko”), where the Tribunal found that the diagnosis of a concussion and post-concussion injuries made by a family doctor ought to be supported by evidence from a concussion expert such as a neurologist, which is not the case in the subject matter before the Tribunal.
19The applicant submitted that Dr. Dodig’s IE report should be given little to no weight, as Dr. Dodig failed to acknowledge the applicant’s Emergency Treatment Record, showing he lost consciousness.
20I am not persuaded that the applicant suffered a concussion as a result of his accident. On review of the applicant’s Emergency Treatment Record, I was confident that the word disputed by the parties stated “contusion” and not a concussion. Moreover, I would have expected this finding to be supported by contemporaneous evidence from Dr. Waraich, which was not the case. Instead, I agreed with the respondent’s arguments regarding the matter of Davidenko, and that even if Dr. Waraich had diagnosed the applicant with a concussion, this finding was not supported by expert evidence.
21The evidence did support that the applicant fell unconscious after his accident. However, I disagree with the applicant’s position that this alone supports the applicant’s removal from the MIG. Falling unconscious alone does not consist of a brain injury requiring removal from the MIG and this argument was not supported in case law or legislation.
22Concerning Dr. Ashraf’s FAE, I agree with the respondent’s argument that as a chiropractor, diagnosing a concussion goes outside the scope of practice of the doctor, and therefore, I afford this finding little weight. I also find that Ms. Jones’s diagnosis of a concussion in her OCF-3 goes beyond her purview as a physiotherapist.
23In terms of the applicant’s arguments about Dr. Dodig’s IE and his failure to review the applicant’s Emergency Record, as the applicant raised this issue, he carries the onus of showing that he provided the record to Dr. Dodig before the IE. Instead, I was provided with evidence from the respondent that the record was provided to the respondent after the applicant’s IE and therefore, was impossible for the doctor to consider. I find that the IE shall be considered for this hearing.
24Therefore, I find that the applicant did not suffer a concussion as a result of his accident.
Pre-existing conditions
25For the applicant to be removed from the MIG based on pre-existing conditions, he must provide compelling evidence that:
a. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and,
b. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 treatment costs under the MIG.
26The standard for excluding an impairment based on a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.
27The applicant submitted that before his accident, he did not have any major health conditions beyond reports of low mood, as reported to Ms. Jones and Dr. Getahun.
28The applicant reported his low mood to Dr. Tadros, Dr. Waraich. Dr. Ashraf also noted the applicant’s emotional symptoms and Dr. Getahun recommended the applicant obtain a psychological assessment.
29The respondent submitted that none of the doctors specifically commented on the applicant’s pre-existing low mood being impacted by his accident or how this required treatment beyond the limits of the MIG to reach maximum medical recovery.
30I find that the applicant has not shown that he suffered from a pre-existing condition that would prevent maximal medical recovery under the MIG. Beyond the note of Ms. Jones that states that the applicant suffered from low mood before his accident and his self-report to Dr. Getahun, the applicant has not provided evidence that speaks to how this pre-existing condition requires treatment beyond the limits of the MIG, which is the requirement for removal under s. 18(2). Further, the OCF-18 containing the psychological pre-screen does not comment on this, nor does do the applicant’s family doctors’ clinical notes and records. Therefore, the applicant has not met his evidentiary burden.
Psychological injuries
31The applicant submitted that he suffered psychological injuries as a result of his accident. The respondent submitted that the applicant has not shown that he has any accident-related psychological impairments that require treatment beyond the MIG.
32Psychological injuries, if established, may fall outside the MIG because the MIG only governs “minor injuries,” and the prescribed definition does not include psychological impairments.
33The applicant relied on the clinical notes and records of Dr. Tardros, Dr. Waraich FAE of Dr. Ashraf, the Report of Dr. Getahun and the Pre-Screen of Dr. Langis.
34The respondent disagreed with the applicant’s position and noted that much of the evidence was based entirely on self-reporting and not based on objective testing or assessment. Moreover, the respondent submitted none of the doctors actually diagnose the applicant with a psychological impairment or a Diagnostic and Statistical Manual of Mental Disorders, 5th Edition (“DSM-5”) diagnosis, as a result of the accident.
35I find the applicant has not shown that he suffers from a psychological impairment as a result of his accident. I note that Dr. Tadros captured the applicant’s self-reports of low mood and insomnia in his notes but never actually diagnosed the applicant with a DSM-5 diagnosis, nor suggested that he suffers from such. Instead, I find that Dr. Tadros captured the applicant’s psychological symptomology but did not feel these symptoms warranted treatment.
36This position is supported by the clinical notes and records of Dr. Waraich. Though Dr. Waraich states that the applicant suffers from chronic mental health issues, the doctor did not diagnose, treat or refer the applicant for psychological treatment.
37I put little weight on Dr. Ashraf’s findings with respect to the applicant’s alleged psychological injury, as the doctor captured the applicant’s symptoms and did not make a diagnosis.
38With respect to Dr. Getahun’s recommendation, I did accept the doctor’s recordings of the applicant’s self-reporting of psychological symptomology. However, I also agree with the respondent that this finding does not diagnose the applicant with a DSM-5 impairment.
39I also reviewed the disputed OCF-18 that contained the psychological pre-screen and found that the document was authored by Ms. Nunes, under the supervision of Dr. Langis. However, I did not find the “provisional diagnosis” provided to the applicant to be compelling. Firstly, the diagnosis of adjustment disorder with mixed anxiety and depressed mood was made based only on the applicant’s self-reporting during his interview. Though I agree that this demonstrates that the applicant communicated his symptoms to the assessor, these symptoms were not assessed objectively, meaning via psychometrics.
40Moreover, this specific issue was addressed in the matter of J.C. v Aviva General Insurance Company, 2019 CanLII 119752 (ON LAT), where the Tribunal found that a psychological pre-screen is not a diagnosis. I agree with this case because it dealt with a similar set of facts, meaning an applicant with a pre-screen and not a formal diagnosis.
41Therefore, since the applicant has not provided persuasive evidence of being diagnosed with a DMS-5 condition, he has not met his evidentiary burden.
42Though I did consider the matter of 16-002818, I did not find it persuasive, as the applicant has not provided evidence that he has been diagnosed with a DSM-5 psychological impairment.
Chronic Pain
43The applicant submits that he suffers from chronic pain, which removes him from the MIG because the prescribed definition of “minor injury” does not include chronic pain conditions. The respondent submitted that the applicant has not shown that he suffers from chronic pain requiring removal from the MIG.
44The applicant submitted that the OCF-3 of Ms. Jones, the clinical notes and records of Dr. Tadros and Dr. Waraich, the FAE of Dr. Ashraf, and the Chronic Pain Report of Dr. Getahun not only show the applicant suffers from chronic pain but was diagnosed with chronic pain syndrome.
45Dr. Getahun opined that the applicant fulfilled the American Medical Association -4th Edition (“AMA Guides 4th Edition”) criteria for a diagnosis of chronic pain syndrome.
46The applicant submitted that he has shown that he has been regularly attending his doctors to report his ongoing, accident-related pain, and that his injuries have not resolved within the timelines of the MIG, which impacts his ADLs. The applicant also argued that he takes Tylenol every night, showing that he has a dependence on pain medication to function and that his pain has prevented him from returning to work.
47The respondent submitted that the applicant has not shown that he suffers from chronic pain warranting removal from the MIG as a result of his accident. The respondent relied on the matter of 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) (“17-007825”), where the Tribunal found that for an applicant to claim chronic pain beyond the MIG, the applicant must show that he fulfils three of the six in the American Medical Association – 5th Edition (“AMA Guides 5th Edition”). The respondent submitted that the applicant has failed to show he fulfills these criteria.
48The respondent submitted that the applicant was found to have no limitations by Dr. Saplys in an IE nor have any impairment as a result of his minor injuries. The respondent submitted that neither Dr. Waraich nor Dr. Ashraf diagnosed the applicant with chronic pain requiring removal from the MIG and that their evidence is based on the applicant’s self reporting.
49The respondent also submitted that little to no weight should be placed on Dr. Getahun’s report, as the doctor diagnosed the applicant with chronic pain without providing a fulsome unpacking of the diagnosis. The respondent submitted that Dr. Getahun did not apply the AMA Guides – 5th Edition to his diagnosis of chronic pain and therefore, it should be given little to no weight.
50The respondent also relied on the matter of R.J. v Pembridge Insurance Company, 2020 CanLII 80289 (ON LAT) (“R.J.”) where the Tribunal found that for chronic pain requiring removal from the MIG to be found, the applicant must show a functional limitation as a result of the pain. The respondent submitted that the applicant has not done so, and therefore, has not met his evidentiary burden.
51The applicant also submitted that R.J. was not relevant, as in that matter, the applicant had not been diagnosed with chronic pain by several doctors, which the applicant submitted is not the case in the subject matter, as the applicant has been diagnosed with chronic pain by many of his doctors.
52I find that the applicant has not shown that he suffers from chronic pain as a result of his accident that requires removal from the MIG. I agreed with the respondent’s submissions with respect to chronic pain and the AMA Guidelines – 5th edition and have chosen to adapt them into my considerations in this decision Though I am not bound by the Guides, the Tribunal has generally accepted them as a useful tool.
53I agree that Dr. Tadros and Ms. Jones captured the applicant’s complaints of pain after his accident. However, I did not find that Dr. Waraich’s evidence showed that the doctor diagnosed the applicant with chronic pain requiring removal from the MIG. I note that the doctor did not provide a fulsome explanation, basis, or referral for this chronic pain beyond relying on the applicant’s self-reporting, which I agreed is not persuasive in itself to show that the applicant suffers from chronic pain requiring removal from the MIG.
54When applying the AMA Guidelines to the applicant’s circumstances, I find:
a. The applicant did not provide evidence of overuse of prescription medication, and instead only submitted he was relying on Tylenol and Advil.
b. The applicant did not provide evidence of overreliance on friends, family or medical professionals.
c. The applicant did not provide direct evidence that his withdrawal from the social, work, family or recreation setting was a result of his accident rather than the current pandemic or being unable to complete his ADLs.
55Since I have found that the applicant does not fulfil four of the six AMA Guidelines, his chronic pain is found to be within the MIG.
Benefits and Examinations
56As the parties agree that the applicant has exhausted the limits of the MIG, I do not need to address if the disputed treatment plans and assessments are reasonable and necessary.
Non-Earner benefit (“NEB”)
57Section 3(7) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.
58Section 12(1)1 states that the insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of, and within one hundred and four weeks after the accident and does not qualify for an income replacement benefit.
59The applicant submitted he suffers a complete inability as a result of the accident and meets the requirements outlined by the Court in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”). The respondent submitted that the applicant did not suffer a complete inability based on Heath, which found that the test for non-earner benefit is one of the most rigid tests under the Schedule. This test is subjective and requires a comparison of the insured person’s “normal life” before and after the accident over a reasonable period of time.
60There are six factors from Heath that the Court of Appeal considered when determining if an insured person suffers a complete inability to carry on a normal life under section 3(7) of the Schedule.
61To establish entitlement to an NEB, the applicant must discharge his burden of proving that he is prevented from engaging in “substantially all” of the pre-accident activities in which he ordinarily engaged. In doing so, the applicant must provide evidence of the frequency and time commitments of his pre-accident activities to compare how much less they can dedicate to the same activity post-accident.
62The applicant submitted that as the respondent had approved and paid his NEB until January 10, 2021, he is claiming the benefit from January 10, 2020, until September 30, 2021. The applicant relied on his OCF-3 of Ms. Jones, the clinical notes and records of Dr. Waraich, the FAE of Dr. Ashraf, and Dr. Getahun’s report to support that the applicant suffers a complete inability to lead a normal life as a result of his accident.
63The respondent submitted that the applicant has not shown that he fulfils the criteria to qualify for an NEB, as he has not met the test. The respondent relied on the applicant’s Canada Revenue Agency (“CRA”) Tax Returns from 2020, which showed that the applicant applied for and received a Canada Emergency Response Benefit (“CERB”) benefit. The respondent submitted that to qualify for such, the applicant certified that he was able to work in March 2020 but could not because of COVID-19. Since the applicant stated that he was able to work, he cannot also claim to suffer a complete inability as a result of his accident. The applicant submitted that the respondent’s position concerning CERB was incorrect as the benefit was paid to those unable to work due to medical conditions and was not supported by evidence.
64The respondent also relied on the IEs of Dr. Saplys and Ms. Mehta, which found that the applicant was able to engage in all of his ADLs and did not suffer a complete inability to carry or a normal life as a result of his accident.
65I find that the applicant has not shown that he suffers a complete inability to carry on a normal life as a result of his accident. The applicant has not provided detailed information regarding his pre-accident activities which he normally engaged in with details such as the frequency and time commitments of said activities and how long these now take after his accident.
66Though I appreciated the applicant’s self-reports of issues with his ADLs, I agreed that Heath requires a comparison between the insured person’s “normal life” before and after the accident over a reasonable period of time. I also agreed that the applicant has not provided this comparison.
67The evidence of Ms. Jones, Dr. Waraich, Dr. Ashraf and Dr. Getahun failed to speak to this. There was no detailed account of how the applicant spent his time and days before his accident, versus after, nor was there a comparison with the applicant’s pre- and post-accident life. As this is a requirement for entitlement, the applicant has not met his evidentiary burden, and therefore, cannot proceed with this benefit. Instead, the medical professionals captured the applicant’s subjective reports without providing details.
68Therefore, the applicant is not entitled to an NEB.
Interest and award
69Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.
70Section 10 of R.R.O. 1990, Regulation 664, Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to the insured person, may award a lump sum of up to fifty percent of the amount to which the insured person was entitled to at the time of the award, with interest, on all amounts owing to the insured person.
71Since I have found that the applicant is not entitled to any of the disputed benefits, no interest or award is owed.
order
72The applicant’s injuries are predominantly minor, as defined by the Minor Injury Guideline.
73The applicant is not entitled to a non-earner benefit in the weekly amount of $185.00 for the period of January 10, 2021, until September 30, 2021.
74The applicant is not entitled to an award section 10 of Ontario Regulation 664.
75The applicant is not entitled to interest.
76The application is dismissed.
Released: February 13, 2023
Stephanie Kepman
Adjudicator