Barakzai v. Economical Insurance Company
Licence Appeal Tribunal File Number: 21-013501/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:
Ahmad Masih Barakzai
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Leo Demarce
APPEARANCES:
For the Applicant: Ardi Deti, Paralegal
For the Respondent: Stephen Whibbs, Counsel
HEARD: In Writing
OVERVIEW
1Ahmad Barakzai, the applicant, was involved in an automobile accident on October 9, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).
3The 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
4The 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 MIG?
ii. Is the applicant entitled to $2,460.00 for orthopedic assessment, proposed by All Health Medical Centre in a treatment plan/OCF-18 (“plan”) submitted on September 23, 2021, and denied on October 07, 2021?
iii. Is the applicant entitled to $1,995.32 for psychological assessment, proposed by Pilowsky Psychology Professional Corp. (PPPC) in a plan submitted on February 15, 2021, and denied on March 29, 2021?
iv. Is the applicant entitled to $3,259.48 for psychological services, proposed by PPPC in a plan submitted on March 03, 2021, and denied on May 04, 2021?
v. Is the applicant entitled to $3,795.50 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre (MMRC) in a plan submitted on November 16, 2020, and denied on December 10, 2020?
vi. Is the applicant entitled to $2,062.55 for chiropractic services, proposed by MMRC in a plan submitted on April 09, 2021, and denied on April 26, 2021?
vii. Is the applicant entitled to $1,417.70 for chiropractic services, proposed by MMRC in a plan submitted on May 21, 2021, and denied on June 08, 2021?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule
5I find that the applicant did not provide sufficient evidence to prove removal from the MIG is warranted.
6Section 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.”
7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), 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 a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
8The applicant submits he should be removed from the MIG on these grounds.
i. Chronic pain.
ii. A psychological injury.
Chronic Pain
9The applicant failed to meet the burden of proof that he suffers from chronic pain with functional impairment as a result of the accident.
10Chronic pain by itself is not included in the definition of a minor injury in the Schedule. Chronic pain also does not fit into the 12-week functional restoration model of the MIG. The applicant seeks to qualify as having chronic pain by suffering from at least three of the six criteria as set out in the American Medical Association’s Guides (AMA) that the Tribunal has adopted as an interpretive tool for chronic pain claims in the absence of a diagnosis.
11The following are the criteria that the applicant identified as supporting his claim that his chronic pain warrants removal from the MIG:
i. Drug Dependence: Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
a. Applicant’s position: Various doctors and clinics report that the applicant has been prescribed medications such as Naproxen, Meloxicam, Clotrimazole, Baclofen, Tylenol #2 and at one time Toradol for control of pain.
b. Respondent’s position: The respondent submits that there is no evidence that the applicant relied on prescription drugs beyond the recommended duration, or that he abused or became dependent on painkillers.
c. I find that the applicant is not dependent on prescription drugs or other substances because I was not pointed to any history of over-prescribing, the prescription drug use is occasional, and there is no evidence of any request for alternative prescription strength pain medications.
ii. Dependence on others: Excessive dependence on health care providers, spouse or family.
a. Applicant’s position: The applicant relies on the report of Dr. Ogilvie Harris. This report states that the applicant self-reported that he does very little in the house compared to before the accident.
b. Respondent’s position: The applicant has not pointed to any proof of excessive dependence on any health care provider, spouse of family.
c. I find that the applicant has not proven to have a dependence on others. While the applicant may claim to be reliant on their family, there is no evidence provided other than his statement to that fact. The respondent points out that there is no undue reliance on his family doctor, nor has there been a reliance on any other medical practitioners since the accident.
iii. Social withdrawal: Withdrawal from social milieu, including work, recreation, or other social contacts.
a. Applicant’s position: Dr. Harris reported that the applicant has stopped working out at the gym, playing basketball or swimming. The applicant also reported to Dr. Harris that he has lost about 20 lbs of muscle mass. He further reported that he does not socialize with his friends or go to the mosque on Fridays.
b. Respondent’s position: The applicant returned to pre-accident work immediately following the accident as a metal shop worker.
c. I am not persuaded that the applicant has suffered from a withdrawal from social milieu, including work, recreation or other social contacts. The applicant returned to work immediately after the accident. I find that the applicant has not provided sufficient evidence to support this issue.
iv. Restore pre-injury function: 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.
a. Applicant’s position: The applicant relies on the report from Dr. Harris who states that the applicant had modified his duties especially with heavy physical tasks and after work he has no energy left.
b. Respondent’s position: The applicant has returned to work immediately following the accident. Other than s.25 reports the applicant has not reported requiring help with any activities of daily life or with functional tasks.
c. I find that the applicant has been able to restore pre-injury function. The report from Dr. Harris submits that the applicant was not off work following the accident. He reports that the applicant modified his duties, but I was not pointed to any supporting evidence regarding this matter.
12The applicant has failed to demonstrate that they suffer from chronic pain with functional impairment. To be removed from the MIG the applicant must demonstrate that they have at least 3 out of the 6 criteria as set out by the AMA. The applicant has relied on 5 of those criteria but I am not persuaded that any of those criteria apply to the applicant.
Potential psychological impairments arising from the accident
13Applicant’s position: The applicant relies on the report from Dr. Sagrati who diagnosed the applicant with Adjustment Disorder with mixed anxiety and depressed mood; and Vehicular Anxiety.
14Respondent’s position: The respondent submits that the report of Sagrati is flawed and employs faulty methodology. It does not accord with the treatment records produced to date.
15I find that the applicant has not persuaded me that he suffers from a psychological impairment as a result of the accident. The applicant is relying on a s. 25 examination for the diagnosis but has not pointed to any supporting evidence from any of his treating physicians or other treating facilities. The applicant returned to work at a physically demanding job. The applicant did not point to any supporting evidence that he has had issues with driving of commuting.
The applicant has not provided sufficient evidence to be removed from the MIG
16I am not persuaded by the applicant’s evidence that he suffers from chronic pain as per the AMA Guides. The applicant is required to prove that he is suffering from at least three criteria set out by the AMA Guides and I find that the applicant is unable to meet that burden of proof. Similarly, he has not demonstrated that he has a psychological impairment warranting removal from the MIG under s. 18(2). As a result, I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
17Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.
18Having found that the applicant remains in the MIG, s. 40(8) of the Schedule applies and the benefits in dispute are deemed reasonable and necessary. Accordingly, the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.
Interest not payable
19I find that as there are no benefits overdue, there is no interest on overdue benefits payable.
ORDER
20I find that:
i. The applicant sustained a predominantly minor injury as a result of the subject accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.
ii. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.
iii. The application is dismissed.
Released: February 15, 2024
__________________________
Leo Demarce
Adjudicator