Jaafar v. Co-operators General Insurance Company, 2024 CanLII 102097

Licence Appeal Tribunal

Citation: Jaafar v. Co-operators General Insurance Company, 2024 ONLAT 22-010680/AABS Licence Appeal Tribunal File Number: 22-010680/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:

Sobhi Jaafar Applicant

and

Co-operators General Insurance Company Respondent

Decision

Adjudicator: Nathan Prince

Appearances: For the Applicant: Lawrence Calenti, Counsel For the Respondent: Daniel M Himelfarb, Counsel

Heard: In Writing

Overview

1Sobhi Jaafar, the applicant, was involved in an automobile accident on March 16, 2022, 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, Insurer, 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 Minor Injury Guideline ("MIG") limit?

ii. Is the applicant entitled to $3,692.58 for chiropractic services, proposed by North Toronto Rehab in a treatment plan submitted April 11, 2022?

iii. Is the applicant entitled to $1,299.43 for chiropractic services, proposed by North Toronto Rehab in a treatment plan submitted January 19, 2023?

iv. Is the applicant entitled to $150.00 for the cost of preparation of an OCF-3, submitted on April 19, 2022?

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

Result

3The applicant has not demonstrated an injury or impairment that warrants removal from the MIG.

4The applicant is not entitled to the treatment plans in dispute.

5No interest is payable.

Procedural Issues

6On December 29, 2023, the applicant filed a Notice of Motion requesting that the Tribunal:

i. Remove non-earner benefits and an award under s. 10 of Reg. 664 from the issues in dispute.

ii. Vacate the currently scheduled videoconference hearing dates; and

iii. Convert the format of the hearing to a written hearing on a timetable determined by the Tribunal.

7The respondent consented to the motion.

8By a Motion Order dated January 3, 2024, the Tribunal granted the motion removing non-earner benefits and an award under s.10 as issues in dispute and the hearing was converted to a written hearing.

Analysis

The applicant has not demonstrated that he warrants removal from the MIG

9I find that the applicant has not demonstrated, on a balance of probabilities, that he should be removed from the MIG.

10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

11Under s. 18(2), an insured may be removed from the MIG if they can establish 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. In all cases, the burden of proof lies with the applicant.

12The applicant's alleged accident-related injuries fall within the definition of a minor injury and include neck pain, upper and lower back pain, and right shoulder pain.

13However, the applicant submits that he should be removed from the MIG based on three grounds: his pre-existing right shoulder injury, his pre-existing diagnosis of multiple morbidities including diabetes and heart disease, and his chronic pain. He relies on his OCF-3 disability certificate ("OCF-3"), the clinical notes and records ("CNRs") of his family doctor, Dr. Nijmeh, the CNRs from North Toronto Rehabilitation and Physiotherapy ("NTR"), and the s.25 physiatry report of Dr. Yen-Fu Chen.

14The respondent does not dispute the existence of the pre-existing conditions; however, it submits that the applicant's injuries fall within the definition of a minor injury in that:

i. There is no evidence that the applicant's pre-existing condition would prevent his recovery if he were to remain within the MIG; and

ii. The applicant's injuries are not consistent with a diagnosis of chronic pain with a functional impairment as set out in the American Medical Association's Guides to the Evaluation of Permanent Impairment, 6th ed. ("AMA Guides").

15For the reasons that follow, I find that the applicant's pre-existing medical conditions and chronic pain do not warrant removal from the MIG.

The applicant has not demonstrated that he has a pre-existing condition that will prevent maximal recovery within the MIG

16I find that the applicant has not established that he should be removed from the MIG on the basis of his pre-existing conditions.

17As set out above, under s. 18(2), the applicant must show, on a balance of probabilities, that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if he is kept within the confines of the MIG.

18The applicant's OCF-3 indicates that the applicant suffered from a pre-existing right shoulder injury at the time of the accident. The evidence submitted by the applicant corroborates the existence of a pre-existing right shoulder injury and the CNRs of Dr. Nijmeh make numerous references to the applicant's complaints of shoulder pain between May 2019 and the date of the accident. However, the mere existence of a pre-existing condition does not automatically remove the applicant from the MIG. The applicant must also show that this pre-existing condition will preclude maximal recovery if he is subject to the limits of the MIG.

19The applicant relies on Dr. Nijmeh's CNRs to demonstrate that his pre-existing shoulder injury will preclude his maximal recovery within the limits of the MIG. On March 12, 2022, four days pre-accident, the applicant attended Dr. Nijmeh's office with complaints of worsening shoulder pain. He was diagnosed with rotator cuff tendinitis with the suggested treatment being physiotherapy, ice, and pain gel. On March 27, 2022, eleven days after the accident, the applicant presented with right shoulder pain which he stated had worsened since the accident; however, no additional diagnosis was made, no medical intervention was made in the form of diagnostic imaging, and the suggested treatment of pain medication and physiotherapy remained the same as pre-accident. During subsequent visits, there are minimal references to the applicant's shoulder pain, and by November 29, 2022, Dr. Nijmeh's CNR makes the same objective finding with respect to the applicant's right shoulder injury as a pre-accident CNR dated October 16, 2021. Furthermore, the CNRs of Dr. Nijmeh do not address whether the applicant's pre-existing injury would preclude the applicant from maximal recovery within the confines of the MIG. As a result, I find that the CNRs of Dr. Nijmeh's do not support a finding that the applicant's pre-existing right shoulder injury would prevent maximal recovery within the limits of the MIG.

20The applicant further relies upon a July 12, 2023 questionnaire provided by applicant's counsel to Dr. Nijmeh, in which he indicated that the applicant's pre-existing right shoulder injury would prevent the applicant from achieving maximal medical recovery. I am not persuaded by this questionnaire. The answers provided by Dr. Nijmeh are very brief, are not supported by reference to his contemporaneous CNRs, and do not provide any explanation on how the determination was reached. In my view, without providing any details, a mere affirmative statement to a question posed by counsel does not rise to the level of compelling medical evidence as required by s. 18(2) of the Schedule. As such, I find that this questionnaire is insufficient to demonstrate that the applicant should be removed from the MIG.

21The CNRs of NTR do not indicate that the applicant's shoulder injury is preventing him from maximal recovery. On March 24, 2022, nine days after the accident, the applicant attended at NTR for an initial appointment. Although not listed as one of his complaints in his initial post-accident intake, the applicant received treatment to his right shoulder for approximately 8 weeks until May 25, 2022, after which, he ceased treatment for over 4 months. I was not provided with submissions as to why the applicant stopped attending NTR during this period; however, I find the lack of treatment to be indicative of the applicant's condition during this time. The applicant resumed treatment on October 5, 2022 and stopped again on March 10, 2023. No submissions were made with respect to why treatment recommenced. In any event, while the CNRs of NTR note that the applicant did receive treatment on his right shoulder, they do not indicate that the applicant's shoulder injury is preventing him from maximal recovery within the limits of the MIG.

22On July 19, 2023 the applicant obtained a s.25 physiatry report completed by Dr. Yen-Fu Chen. In his report, Dr. Chen concluded that the applicant would be prevented from achieving maximal recovery if limited to only $3,500 in treatment. However, in coming to that conclusion, Dr. Chen heavily relies upon the previously mentioned July 12, 2023 questionnaire and the March 27, 2022 and November 29, 2022 CNRs of Dr. Nijmeh. As discussed above, the questionnaire and CNRs are not persuasive in demonstrating that the applicant should be removed from the MIG, and therefore, I am not persuaded by Dr. Chen's report which relies upon this same evidence.

23Dr. Chen's report also notes that the applicant has multiple morbidities including diabetes and heart disease which preclude the use of many medications including nonsteroidal anti-inflammatories; however, I was not pointed to any explanation of how the lack of access to these medications will limit the applicant's recovery within the MIG. As such, I find that the s.25 report of Dr. Chen is insufficient to demonstrate that the applicant will not obtain maximal recovery if left within the MIG.

24I find that while there is documentation of the applicant having a pre-existing shoulder injury and multiple morbidities, I was not directed to compelling medical evidence which demonstrated that these pre-existing conditions would preclude recovery if the applicant were left within the MIG. Therefore, I find that the applicant does not have a pre-existing condition that will prevent maximal recovery within the MIG.

The applicant has failed to demonstrate that he suffers from chronic pain with a functional impairment as a result of the accident

25I find that the applicant has not established, on a balance of probabilities, that he suffers from chronic pain with functional impairments that would warrant removal from the MIG.

26The applicant relies on the opinions of Dr. Nijmeh and Dr. Chen who both diagnosed the applicant with chronic pain based on the definition provided to them by the applicant's representative as being "ongoing recurrent pain, lasting beyond the usual course of acute illness or injury or more than three to six months which adversely affect the individual's well-being." A key part of this definition is that the ongoing recurrent pain must adversely affect the applicant's well-being. Chronic pain by itself is not sufficient to remove the applicant from the MIG - the applicant must demonstrate that his chronic pain is accompanied by functional impairment. Dr. Chen noted impairments in the applicant's ability to complete housekeeping and home maintenance, in addition to limitations in his ability to fully participate at his mosque as well as limitations in his ability to shop and travel, all of which the applicant submits is sufficient to demonstrate a level of functional impairment which would warrant removal from the MIG.

27The respondent submits that the AMA Guides should be considered when evaluating the applicant's functional impairments. The applicant argues that the AMA Guides should not be used and points me to N.R. v. Aviva Insurance Company of Canada, 2019 CanLII 51313 (ON LAT), a 2019 Tribunal decision in which the adjudicator chose not to consider the AMA Guides on the basis that they are not referenced in the Schedule with respect to chronic pain. I am not bound by this decision and note that the Tribunal has long held that the AMA Guides are a helpful tool. As such, I find that the AMA Guides are beneficial to my analysis of whether the applicant suffers from chronic pain with functional impairments that would warrant removal from the MIG.

28The AMA Guides list six criteria for assessing chronic pain claims. To support a diagnosis of chronic pain under the AMA Guides, the applicant must meet at least three of the following six criteria:

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 contracts.

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.

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

29Turning to the criteria in the AMA Guides, I was not pointed to any evidence that the applicant has used prescription drugs beyond the recommended duration and/or that he has abused or is dependent on prescription drugs or other substances.

30I find that the applicant is not excessively dependant on health care providers, spouse, or family. I was not pointed to any evidence that the applicant is currently dependant on health care providers. With respect to dependence on his spouse and family, the applicant's regular pre-accident housekeeping activities included grocery shopping, emptying the garbage, washing clothes, and folding laundry. I was not advised as to whether he is still completing any of these tasks or to what extent if he is. The applicant reported that he has had some assistance from his wife and daughter with cleaning, but again, the extent of this assistance is not provided. I find there is insufficient evidence to support a finding that the applicant is excessively dependent on his spouse or family.

31I was not pointed to any evidence of secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

32I find that the applicant has not withdrawn from social milieu, including work, recreation, or other social contracts. With respect to vocational activities, the applicant stated that he was unable to return to his previous job as a general labourer and reported that he is limited in his ability to actively search for jobs. However, the applicant's claimed employment status is not supported by the OCF-3 he completed which indicates that he was not working at the time of the accident and was not working for at least 26 weeks of the previous 52 weeks preceding the accident. With respect to recreational or other social contracts, the applicant reports that he is limited in his ability to attend mosque as frequently and has difficulty sitting and kneeling on the floor to pray. While the applicant may be experiencing some limitations with respect to attendance at his mosque, this is insufficient to demonstrate that he has withdrawn from social milieu. The applicant also reported that he has not enjoyed travelling since the accident; however, no further details regarding how this has impacted his ability to travel has been provided. The applicant's lack of enjoyment with respect to travel is insufficient to support a finding that he has withdrawn from social milieu.

33I find that the applicant has not developed psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours. The applicant relies on the OCF-3 and July 12, 2023 questionnaire completed by Dr. Nijmeh, wherein anxiety is listed as one of the applicants ongoing conditions. However, these findings are not supported by Dr. Nijmeh's CNRs which do not mention the applicant reporting symptoms of anxiety or depression, despite numerous visits. The applicant further relies on the report of Dr. Chen in which the applicant self-reported experiencing anxiety and depression to Dr. Chen. In addition, Dr. Chen notes the aforementioned OCF-3 and July 12, 2023 questionnaire as a basis for a finding of anxiety. While the applicant may have reported symptoms of anxiety to Dr. Chen, I am nonetheless persuaded by the numerous CNRs of Dr. Nijmeh which do not mention anxiety. As such, I find that the applicant has not developed psychosocial sequelae after the accident.

34The applicant has not met at least three of the six criteria to support a diagnosis of chronic pain with functional impairment under the AMA Guides. Therefore, I find that he has not demonstrated, on a balance of probabilities, that he suffers from chronic pain with a functional impairment as a result of the accident.

The treatment plans in dispute are not reasonable or necessary

35The parties have not identified whether the MIG limits have been exhausted. Therefore, I will consider whether the treatment plants in dispute are reasonable and necessary.

36The applicant is seeking payment of the following disputed OCF-18s:

i. $3,692.58 for chiropractic services, proposed by North Toronto Rehab in a treatment plan submitted April 11, 2022?

ii. $1,299.43 for chiropractic services, proposed by North Toronto Rehab in a treatment plan submitted January 19, 2023?

37To be entitled to a treatment plan under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.

38The applicant relies on the questionnaire completed by Dr. Nijmeh which states that the treatment plans are reasonable and necessary as the applicant suffers from multiple morbidities including diabetes and heart disease which preclude the use of many medications, including nonsteroidal anti-inflammatories, making physical therapy critical. Dr. Chen echoes this position in his s. 25 physiatry report. Finally, the applicant points to the fact that the respondent has not proffered any medical opinion with respect to whether the treatment plans are reasonable and necessary and the only medical evidence before this Tribunal is that the treatment plans are reasonable and necessary.

39The respondent submits that the treatment plans, without more, are not enough to establish entitlement and there is no medical evidence of accident-related impairment to support that further chiropractic treatment is reasonable and necessary.

40I find that the applicant has not demonstrated that the treatment plans in dispute are reasonable and necessary. The OCF-18s recommend 33 treatment sessions; however, they fail to document how chiropractic treatment is reasonable and necessary to address the applicant's injuries. While I am alive to the fact that the OCF-18s indicate that the goals of treatment include pain reduction, increased range of motion, and increase in strength, I was not pointed to any evidence which discusses how chiropractic treatment would reasonably achieve these goals. Both Dr. Nijmeh and Dr. Chen assert that the treatment plans are reasonable and necessary; however, they do not discuss why this is the case. Again, a mere assertion that the treatment is reasonable and necessary is insufficient to demonstrate that the treatment plans will achieve the goals of treatment. Finally, although the CNRs of Dr. Nijmeh suggest physiotherapy in the month after the accident, by November 29, 2022, Dr. Nijmeh suggests home exercises in conjunction with Tylenol and ice to treat the applicant's shoulder pain. Therefore, I find that the treatment plans in dispute are not reasonable or necessary.

41With respect to the $150.00 for the cost of preparation of an OCF-3, submitted on April 19, 2022, neither party made submissions. As such, the applicant has not met its onus to establish that this amount is reasonable and necessary and therefore the applicant is not entitled to this benefit.

The applicant is not entitled to interest

42As there are no payments owed, the applicant is not entitled to interest.

Order

43For the reasons above, I find that:

i. The applicant's injuries fall within the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to interest; and

iv. The application is dismissed.