Licence Appeal Tribunal

Citation: Nana v. Economical Insurance Company, 2024 ONLAT 22-010093/AABS

Licence Appeal Tribunal File Number: 22-010093/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:

Milad Nana

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Pamela Vlasic, Counsel

HEARD: By way of written submissions

OVERVIEW

1Milad Nana ("the Applicant"), was involved in an automobile accident on August 29, 2020, and sought benefits from Economical Insurance Company ("the Respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").

2The Respondent characterized the Applicant's injuries as falling within the "minor injury" definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Respondent also denied the Applicant's claims for income replacement benefits ("IRBs") and attendant care benefits ("ACBs"). The Applicant disagrees and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

3The issues in dispute are:

i. Are the applicant's injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline ("the MIG") and the $3,500.00 funding limit for a minor injury?

ii. Is the applicant entitled to medical benefits proposed by Health Pro Wellness as follows:

i. $2,788.33 for assistive devices recommended in a treatment and assessment plan dated December 24, 2020;

ii. $2,770.76 for a chiropractic treatment plan, dated May 13, 2021;

iii. $1,800.00 for an in-home assessment plan, dated December 5, 2020;

iv. $2,200.00 for a psychological assessment plan, dated December 15, 2020;

v. $3,822.92, less $1,080.50 approved by the Respondent, for a chiropractic treatment plan, dated December 5, 2020; and

vi. $3,566.29 for a psychological treatment plan, dated March 4, 2021?

iii. Is the applicant entitled to $2,770.76 for chiropractic services from Health Pro Wellness dated April 29, 2021?

iv. Is the applicant entitled to IRBs in the amount of $400 per week for the period from September 5, 2020 to-date and ongoing?

v. Is the applicant entitled to ACBs in the monthly amount of $2792.55, for the period from August 29, 2020 to-date and ongoing?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The Applicant withdrew his claim for a chiropractic treatment plan in the amount of $2,770.76, dated April 29, 2021.

5The Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

6The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit.

7The Applicant is not entitled to ACBs because he sustained a minor injury.

8The Applicant has not met his onus to demonstrate that he is entitled to IRBs as a result of the accident.

9No interest or award is payable.

BACKGROUND

10The Applicant was the driver of a vehicle which struck a left-turning vehicle while traversing an urban intersection. He was taken from the scene of the accident to the hospital, via ambulance, with complaints of left wrist and forearm pain. He was examined by emergency department doctors who diagnosed him with soft tissue injuries and he was discharged.

11The Applicant's health history is significant for a right wrist injury. It was surgically repaired in 2017, but he continued to suffer from complications related to that injury. On August 10, 2020, nineteen days before the accident, the Applicant consulted with an orthopaedic surgeon was scheduled for further surgical intervention, on December 1, 2020.

12The Applicant claims that his right wrist pain was aggravated by the accident, and that he now suffers from chronic pain and psychological injuries as a result of the accident. He further submits that his accident-related injuries cause him to suffer a complete inability to carry on his employment as a sales associate at a furniture store and cause him to require attendant care benefits.

13The Respondent submits that the Applicant's injuries as a result of the accident are soft tissue injuries that fall within the minor injury definition in section 3 of the Schedule. It further submits that the Applicant's right wrist issues pre-date the accident and that his right wrist issues are the cause of any disability he claims, and not the accident.

ANALYSIS

Minor Injury Guideline ("MIG")

14The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

15The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

16For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

Pre-existing injury and chronic pain

17I find that the Applicant's right wrist injury pre-dates the subject accident and that it was not exacerbated as a result of the accident.

18The Applicant's right wrist pathology dates back more than two years before the accident. He injured it playing soccer and it was surgically repaired with the assistance of internal hardware. He continued to have pain and weakness with the right wrist and was referred by his family physician, Dr. A. Al-Hellawi, to Dr. J. Rusen, orthopaedic surgeon, on December 18, 2018. Dr. Rusen had no access to elective surgical time in 2019 and referred the Applicant to another orthopaedic surgeon for a second opinion. Eventually, the Applicant consulted with Dr. D. Nam, orthopaedic surgeon, shortly before the accident on August 10, 2020, who recommended surgical intervention. The surgery occurred on December 1, 2020, performed by Dr. Nam.

19I conclude that the Applicant's right wrist issues would have progressed regardless of the accident. Prior to the accident, the Applicant regularly complained of right wrist pain, was referred for orthopaedic consultations as a result, and was recommended for surgical intervention. Recall, both Dr. Rusen and Dr. Nam recommended surgical intervention prior to the accident. The fact that the accident occurred between the Applicant's consultation with Dr. Nam, and the surgery, does not cause me to conclude that his right wrist injury was exacerbated as a result of the accident.

20I find that the Applicant's right wrist injury was not exacerbated in the accident. The CNRs from Dr. Al-Hellawi do not include any information for me to conclude that the accident exacerbated the Applicant's right wrist pain. The Applicant never met with Dr. Al-Hellawi for any accident-related complaints between his visit on September 3, 2019 until his post-surgical visit on January 28, 2021. There is minor reference to the accident in the January 28, 2021 entry however, the balance of the records causes me to conclude that the visit is due to post-surgical headaches and pain.

21I am unable to conclude that the Applicant's chronic pain complaints are as a result of the accident. The Applicant claims that his ongoing right wrist pain is a chronic pain condition that falls outside of the definition of a minor injury. However, having concluded that his right wrist pathology pre-dates the accident and was not exacerbated as a result of the accident, it follows that the chronic pain condition and related functional impairment are unrelated to the accident.

Psychological injury

22I find that the Applicant has not demonstrated that he suffers from a psychological injury as a result of the accident.

23I give no weight to the report of Dr. F. Aghamohseni, psychologist, dated February 27, 2021. The report relies far too heavily on the Applicant's self-reported health history and condition, which is inconsistent with his medical record, and included no review of the Applicant's medical record. Notably, Dr. Aghamohseni recorded that the Applicant reported no medical history which inhibits his day-to-day functioning, and never discussed his right wrist issues, which plagued him for years preceding the accident, and required surgical intervention about three months prior to the psychological assessment. The fact that Dr. Aghamohseni never objectively examined, or discussed the causal connection within the Applicant's health history – specifically his right wrist pathology – is fatal to the persuasiveness of the report.

24Instead, I prefer the report of Dr. A. Rubenstein, psychologist, dated September 7, ,2021. Dr. Rubenstein reviewed the Applicant's medical records and identified his existing right wrist issues. Dr. Rubenstein administered psychometric testing, but concluded that the Applicant compromised the validity of the testing, based on symptom magnification. Overall, Dr. Rubenstein found that the Applicant had not sustained any diagnosable psychological impairment as a direct result of the accident. I find this to be consistent with Dr. Al-Hellawi's CNRs, which do not include reference to any meaningful psychological complaints.

25For the reasons above, I find that the Applicant has not sustained a psychological injury as a result of the accident. Accordingly, I conclude that his injuries are rightfully characterized as a minor injury and subject to the MIG and the $3,500.00 funding limit for a minor injury.

26The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services which fall outside the MIG and beyond the $3,500.00 funding limit.

27Similarly, the Applicant is disentitled from claiming entitlement to ACBs pursuant to section 14(2) of the Schedule because he sustained a minor injury.

Income replacement benefits ("IRBs")

28I find that the Applicant has not met his onus to demonstrate entitlement to IRBs.

29To be eligible for IRBs, the Applicant must demonstrate that he suffers a substantial inability to complete the essential tasks of his employment at the time of the accident. To demonstrate this, the Applicant should provide a clear description of his employment and the essential tasks it involves and explain how his accident-related injuries prevent him from completing those tasks.

30Considering that the Applicant's right wrist pathology is unrelated to the accident, I must note that the Respondent is not liable for any disability arising out of the surgical procedure.

31The Applicant's employment at the time of the accident appears to be that of a salesperson and a general helper at a furniture store. Determining the essential tasks of the Applicant's employment is difficult because he never provided his employment file, despite being ordered by the Tribunal to produce the records. The OCF-2 completed by the employer states that the Applicant's role at the business was "sales," he reported to Dr. Aghamohseni that he was a manager and salesperson, he reported to Dr. Weisleder that he was employed in sales and as a general helper, and he reported to Dr. H. Kaufman, in a report dated September 7, 2021 that he worked sales but had other duties such as moving furniture, occasional delivery, and some furniture assembling. I find that salesperson is consistently reported, and it is likely that someone working in that role at a small store would carry out other duties, such as assembling and moving furniture.

32I find no persuasive evidence demonstrating that the Applicant is disabled from working as a result of the accident. Dr. Al-Hellawi's CNRs do not indicate that the Applicant is disabled from working as a result of the accident. The Applicant met with Dr. Al-Hellawi twice following the accident and before his wrist surgery on December 1, 2020: on September 3, three days following the accident, and on September 17, 2020, where he complained of foot pain that was unrelated to the accident. These two entries are not indicative of someone who is disabled from working and I find nothing in the CNRs indicating that Dr. Al-Hellawi recommends that the Applicant refrain from working as a result of the accident.

33I give no weight to the disability certificate by Dr. R. Tarulli, chiropractor, dated September 16, 2020. The document is missing helpful information that degrades the overall persuasiveness of it. It is blank where it asks when the Applicant's last date of work was, and it does not state the type of work the Applicant was doing at the time of the accident. I query how Dr. Tarulli can determine that the Applicant is disabled from working when it is unclear if Dr. Tarulli knew the essential tasks of the Applicant's employment. The disability certificate, dated December 5, 2020, also completed by Dr. Tarulli, was completed immediately following the Applicant's wrist surgery, which is not related to the accident.

34The IE reports conclude that the Applicant is not disabled from working as a sales associate in a furniture store. Dr. Weisleder, in the report dated September 7, 2021, found that the Applicant does not suffer a substantial inability to perform the essential tasks as a salesperson, and there are no limitations or restrictions that may be delaying or preventing the Applicant from working. Dr. Rubenstein found no accident-related mental impairment providing any barrier to the Applicant's ability to carry on his normal daily activities and does not suffer from an inability to perform the essential tasks of his employment.

35There are other factors that undermine the Applicant's claim for IRBs, aside from the lack of medical evidence demonstrating his disability. Oddly, the OCF-1and the two OCF-3's include areas to state the last day worked, but they are blank. The Applicant maintains in his submissions that he never returned to work following the accident, but this is contradicted by the information in his 2021 and 2022 income tax returns, which report income earned during these years. Lastly, the Applicant enrolled in, and regularly attended at, a fulltime police foundations college program in 2021. Enrolling in such a program suggests that the Applicant is reasonably functional, both physically and psychologically.

36Accordingly, I find that the Applicant has not demonstrated that he suffers a substantial inability to complete his essential tasks as a salesperson at a furniture store.

Interest

37Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits overdue, it follows that no interest is payable.

Award

38The applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

39The Applicant's claim for an award flows from the denial of the benefits listed in dispute for this hearing. Having concluded that the Applicant is not entitled to any of the benefits, it follows that none of them were unreasonably withheld of delayed.

CONCLUSION AND ORDER

40The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.

41The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services which fall outside the MIG.

42The Applicant is not entitled to ACBs because he sustained a minor injury.

43The Applicant has not met his onus to demonstrate entitlement to IRBs.

44No interest or award is payable.