Licence Appeal Tribunal File Number: 22-009632/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:
Afsaneh Adelkhani
Applicant
and
Aviva General Insurance
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Neha Kohli, Paralegal
For the Respondent: Juny Kim, Counsel
HEARD: In Writing
OVERVIEW
1Afsaneh Adelkhani, the applicant, was involved in an automobile accident on August 19, 2020, 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, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The respondent seeks to strike three pages of the applicant’s submissions as it did not comply with the Case Conference Report and Order (“CCRO”) dated May 8, 2023, that limited party submissions to 12 pages. The applicant’s submissions are 15 pages. The respondent’s submissions are 12 pages.
3The applicant did not file a motion to extend the page limit in advance of the hearing nor make submissions as to why the submissions are over the page limit.
4Rule 9.3 of the Licence Appeal Tribunal Rules (“Rules”) states that if a party fails to comply with any direction with respect to disclosure, the party may not rely on the document as evidence without permission of the Tribunal. I find that the applicant did not comply with the CCRO page limit and failed to file a motion for an extension. I also find that the respondent complied with the CCRO. Despite these findings, I am not persuaded that it would be prejudicial to the respondent to allow the additional pages.
5As a result, I am denying the relief sought by the respondent, I will admit the full submissions of the applicant, and accord it whatever weight I deem appropriate in the context of rendering my decision.
ISSUES
6The following issues are to be decided:
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 limit?
ii Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Q Medical in a treatment plan dated February 19, 2021?
iii Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Q Medical in a treatment plan dated March 9, 2021?
iv Is the applicant entitled to $253.73 ($1,353.72 less approved amount of $1,100.00) for chiropractic services, proposed by Success Rehab Clinic in a treatment plan dated February 4, 2021?
v Is the applicant entitled to $789.67 for chiropractic services, proposed by Success Rehab Clinic in a treatment plan dated July 9, 2021?
vi Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
Applicability of the Minor Injury Guideline (“MIG”)
7The MIG establishes a framework 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.”
8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
9An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
10It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from chronic, pre-existing and physical injuries, which are not included in the definition of a minor injury. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor and that they can be treated within the confines of the MIG.
The applicant did not suffer physical injuries that warrant removal from the MIG
11I find that the applicant has not provided sufficient evidence to demonstrate that her physical impairments justify treatment beyond the MIG.
12The applicant provides limited submissions as to how her accident-related physical injuries fall outside of the MIG. The applicant submits that following the accident she was taken to Scarborough General Hospital, with primarily neck pain, a cervical spine x-ray revealed no fracture or dislocation, she was given ibuprofen and discharged. Furthermore, the medical conclusion of Dr. Alborz Oshidari, physiatrist, within the section 44 multidisciplinary assessment dated April 23, 2021, diagnosis the injuries as strains and sprains.
13The respondent submits that the applicant has not provided medical evidence demonstrating any injuries beyond the MIG. In addition to the medical evidence presented by the applicant which demonstrates minor injuries, the respondent relies on the clinical notes and records (“CNRs”) of Dr. Yasmin Shaikh, family physician, who assessed the applicant on August 25, 2020, and diagnosed the applicant with soft tissue sprain and recommended Advil and physical therapy.
14After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers physical injuries that would remove her from the MIG. I am persuaded by the bulk of the undisputed medical evidence from the Scarborough General Hospital, Dr. Oshidari, and Dr. Shaikh who all concluded that the applicant suffered from minor soft tissue injuries. This supports my finding that the applicant sustained minor soft tissue injuries which fall squarely within the section 3 definition of a minor injury under the Schedule.
15As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.
The applicant did not suffer a pre-existing psychological injury that warrants removal from the MIG
16Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:
i There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.
17The standard for excluding an impairment on the basis of pre-existing conditions 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.
18The applicant provides a medically documented pre-existing psychological condition, which the respondent does not dispute. The applicant relies on the CNRs of Dr. Shaikh, and the diagnosis of Dr. Sher Baz Khan, psychiatrist. The applicant has been under the care of Dr. Khan since at least 2018 as a result of personal challenges and was diagnosed with major depressive disorder and prescribed medication. The applicant submits that the accident exacerbated her pre-existing depression and anxiety, and relies on the opinion of Dr. Bruce Ballon, psychiatrist, in the multidisciplinary assessment dated April 23, 2021. Dr. Ballon acknowledged her prior diagnosis and concluded that a direct casual link between the accident and the applicant’s psychiatric state could not be conclusively established. During the assessment the applicant reported that prior to the accident her psychiatric symptoms were improving, that she had stopped taking her medication and after the accident she engaged in new symptoms including hair pulling. In reviewing the medical evidence, the applicant’s self reporting during the assessment conflicts with the CNRs Dr. Khan and Dr. Shaikh that reveal that the applicant was taking maximum doses of her medication, with no improvements, and had been engaged in hair pulling prior to the accident.
19The respondent concedes that the applicant has a pre-existing history of severe anxiety, depression and panic attacks. The respondent takes the position that the accident did not exacerbate her injuries nor is there any medical evidence to suggest that the pre-existing condition would prevent maximal recovery if it is treated within the MIG. The respondent relies on the conclusion of Dr. Ballon who determined that the applicant’s self-reporting is inconsistent with her medical records, and that while the accident may have exacerbated her pre-existing mood, anxiety and trauma conditions initially there was no evidence to support that the accident is related to exacerbating them at the time of the assessment. It was Dr. Ballon’s opinion that the applicant’s current psychiatric symptoms appeared to be similar to those before the subject accident, with the same level of intensity.
20While I accept that the applicant has a pre-existing psychological condition, I am not satisfied that the applicant has met the second part of the test pursuant to section 18(2) of the Schedule, as she has not directed me to a medical opinion or compelling medical evidence that her pre-existing condition would prevent maximal recovery within the MIG. While there is documented evidence of pre-existing condition, the CNRs of Dr. Khan and Dr. Shaikh are silent with respect to whether the applicant’s pre-existing condition was worsened by the accident, and more importantly, whether this would prevent maximal medical recovery if she were to remain within the monetary limits of the MIG. Furthermore, the five post-accident progress reports of Dr. Khan, do not include reference to the exacerbation of the applicant’s psychological symptoms.
21This is also supported by the opinion of Dr. Ballon who opines that the accident may have exacerbated her pre-existing psychological condition initially, but there is no medical evidence to support that at present. I am persuaded by the medical evidence that determines the applicant has a pre-existing condition but is silent on whether it was exacerbated, finding no evidence that the applicant’s current psychological condition is different than her concerns prior to the accident, or would prevent maximal medical recovery within the MIG.
22As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a pre-existing psychological condition that would warrant her removal from the MIG.
23As I have found the Applicant to remain within the MIG, I find that it is not required to review the treatment plan in dispute to determine if it is reasonable and necessary.
Interest
24As there are no overdue payment of benefits, the Applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
25For the reasons outlined above, I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of 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.
Released: November 4, 2024
__________________________
Monica Ciriello
Vice-Chair