Licence Appeal Tribunal File Number: 22-005713/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:
Kaywan Gholami G Afshar
Applicant
and
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR:
Tyler Moore
APPEARANCES:
For the Applicant:
Denis Chubar, Paralegal
For the Respondent:
Kathy Conteh, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kaywan Gholami G Afshar, the applicant, was involved in an automobile accident on December 29, 2019, 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, Intact Insurance Company, 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. Is the applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week from January 6, 2020, and ongoing (less $500.00 paid)?
ii. 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?
iii. Is the applicant entitled to $634.04 ($1,923.20 less $1,289.16 approved) for chiropractic services proposed by Scarborough Medial Centre in a treatment plan/OCF-18 (“plan”) dated October 20, 2020?
iv. Is the applicant entitled to $1,995.00 for a psychological assessment proposed by Scarborough Medical Centre in a plan dated February 22, 2021?
v. Is the applicant entitled to $4,089.95 for psychotherapy services proposed by Scarborough Medical Centre in a plan dated August 18, 2021?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to IRBs from January 6, 2020, and ongoing (less $500.00 paid).
4The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.
5The applicant is not entitled to the treatment plans in dispute.
6The applicant is not entitled to interest.
ANALYSIS
IRBs
7I find, on a balance of probabilities, that the applicant is not entitled to IRBs in the amount of $400.00 per week from January 6, 2020, and ongoing, less $500.00 paid to date.
8To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
9At the time of the accident the applicant was working as an Uber and Lyft driver. The applicant submits that he is not able to recall if he took any time off work after the accident. Instead, he argues that the injuries he sustained as a result of the accident have impacted his overall level of function.
10The respondent relies on the s. 44 IE assessment report of general practitioner Dr. Inderdeep Manhas dated March 13, 2020, which concludes that the applicant does not suffer an inability to perform the essential tasks of his employment as a result of the accident. The respondent also submits that on January 27, 2023, the applicant reported to psychologist Dr. Charlotte Gooden that he continued to work in his pre-accident employment as an Uber and Lyft driver. Dr. Gooden concluded that the applicant did not demonstrate any evidence of an ongoing inability to perform the essential tasks of his pre-accident employment.
11I find that the applicant has not pointed me to medical evidence that explicitly indicates he is substantially disabled from completing the essential tasks as an Uber and Lyft driver. He has also not identified the essential tasks of his employment or which tasks he is unable to perform and to what extent he is unable to perform them. As a result, I find that he has not met his onus to demonstrate entitlement to IRBs.
12I have placed significant weight on the fact that it remains unclear whether the applicant took any time off work after the accident, and he continues to work as an Uber and Lyft driver. This is supported by the clinical notes and records from NeuLife Pain clinic dated March 25, 2020, where it was noted that the applicant continues to work full-time as an Uber driver. I also rely on the s. 44 IE report of Dr. Manhas and the functional assessment report of physiotherapist Dennis Polygenis dated February 10, 2020, who concluded that the applicant did not demonstrate evidence of an ongoing inability to perform the essential tasks of his pre-accident work as an Uber and Lyft driver. Mr. Polygenis also found that the applicant satisfied the load and frequency requirements of his pre-accident job tasks.
13For these reasons I conclude, on a balance of probabilities, that the applicant is not substantially disabled from completing the essential tasks of his employment as a result of the accident and within the 104-week post-accident period. For the same reasons I find that the applicant is not entitled to post-104-week IRBs as he has not demonstrated a substantial inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience. The applicant is therefore not entitled to IRBs from January 6, 2020, and ongoing, less the $500.00 already paid.
MIG
14Section 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.”
15An 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 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.
16The applicant submits that he should be removed from the MIG because he suffers from pre-existing conditions, accident-related chronic pain, and accident-related psychological injury that cannot be adequately treated within the confines of the MIG.
17For the following reasons, I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 funding limit on treatment.
Pre-Existing Condition
18I find that the applicant has not demonstrated, on a balance of probabilities, that he has satisfied the second part of the two-part test pursuant to section 18(2) of the Schedule to be removed from the MIG based on a pre-existing medical condition.
19To be removed from the MIG based on a pre-existing condition pursuant to section 18(2) of the Schedule, the applicant must provide documented evidence of a pre-existing medical condition by a health practitioner, and evidence that the pre-existing condition will prevent him from achieving maximal recovery from the minor injury if he is subject to the MIG limits.
20The presence of a pre-existing condition alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that he has a pre-existing condition but also that it prevents him from achieving maximal recovery within the MIG.
21The applicant has provided documented evidence by a health practitioner of a pre-existing medical condition. The applicant’s family doctor, Dr. Nidhi Pandey, documented on July 24, 2018, that the applicant had been suffering from chronic pain for over 10 years that was stable with narcotic pain medication. Dr. Amir Mortazavi, cardiologist, also noted just a few months before the accident on August 22, 2019, that the applicant used many painkillers for multiple disabling musculoskeletal disorders and was being treated for depression by a psychiatrist.
22I find that the applicant has not, however, met his onus of providing evidence from a health practitioner specifying that his pre-existing medical conditions will prevent him from achieving maximal medical recovery if he is subject to the MIG limits. As a result, I find that the applicant has not satisfied the requirements of section 18(2) of the Schedule.
Psychological Injuries
23I find that the applicant has not established on a balance of probabilities that the applicant suffers from a psychological injury as a result of the accident that would warrant removal from the MIG.
24The applicant relies on the psychological screening and psychological assessment reports of Dr. Svetlana Gabidulina dated February 22, 2021, and April 28, 2021, to demonstrate that the applicant suffers from situational phobia and severe depressive episode as a result of the accident. Dr. Gabidulina reported that the seriousness of the applicant’s psychological condition may lead to a chronic disability if left untreated, and that the applicant reported depressed mood, disrupted sleep, over thinking, headaches, lack of concentration, and driving anxiety since the accident.
25The respondent submits that the applicant denied a pre-existing psychological condition when being assessed by Dr. Gabidulina. It also submits that although Dr. Gabidulina concluded that the applicant did not meet the definition of ‘minor injury’ as defined by the Schedule, she did not make any reference to the applicant’s medical records for corroboration when arriving at that conclusion.
26The respondent relies on the psychological assessment of Dr. Gooden dated January 27, 2023, who found that the applicant’s accident-related condition did not warrant removal from the MIG. Dr. Gooden concluded that the applicant’s reported symptoms were not of such severity to result in a formal psychological diagnosis as a direct result of the accident. The respondent submits that in arriving at her conclusion, Dr. Gooden considered that the applicant continued working as an Uber driver, gained enjoyment from the same activities he previously enjoyed, and he did not report that his psychological symptoms interfered with his social or occupational functioning.
27I prefer Dr. Gooden’s report and conclusions. First, I find that there is no indication that Dr. Gabidulina reviewed the applicant’s relevant pre-accident medical records, or acknowledged his positive history of mental illness, particularly depression. Dr. Gabidulina did not know the specifics of the applicant’s numerous pre-accident medications for pain and depression or that he had been receiving regular pain injections before the accident. Dr. Gabidulina reported that the applicant denied a history of cognitive difficulties and that the two previous motor vehicle accidents he was involved in years earlier were not bad and did not result in long-lasting consequences. I find that this is inconsistent with the other medical evidence before me, particularly Dr. Pandey’s clinical notes and records which reflect that the applicant has been reliant on narcotic pain medication and was consulting regularly with a psychiatrist for many years leading up to the accident. I find that Dr. Gabidulina’s findings and recommendations are based on self-reports which are not consistent with the other evidence before me, and an incomplete medical record. I find that Dr. Gooden, on the other hand, reviewed the applicant’s pre-accident medical records.
28I also find it significant that the applicant continues to drive for a living, and that there is no record of any accident-related psychological complaints made to Dr. Pandey, and no evidence of any accident-related psychological treatment recommendations that Dr. Pandey has made.
29While I accept that the applicant may have had some symptoms of anxiety and depression following the accident, I find that this has not been to a degree that has precluded him from working. As a result, I am not satisfied, on a balance of probabilities, that the applicant’s psychological condition is a direct result of the December 29, 2019, accident or that it would warrant removal from the MIG.
Chronic Pain
30I find the applicant has not demonstrated on a balance of probabilities that he suffers from a functional impairment due to accident-related chronic pain.
31The applicant relies on Dr. Pandey’s clinical note dated January 7, 2020, to show that he sustained whiplash, right sided body pain, right ankle pain, and a flare-up of right knee pain following the accident. The applicant also relies on the clinical notes and records from Dr. Pandey and pain specialist Dr. Dana Sarca to demonstrate a reliance on narcotic pain medication, pain injections, and the applicant’s chronic pain.
32The respondent submits that in the three years following the accident, the applicant only reported accident-related complaints to Dr. Pandey on three occasions. The respondent also submits that the applicant has not provided a medical report from a qualified health practitioner who explains how the applicant’s pain is sufficiently severe, how he is functionally impaired, or how the accident was the material cause of his chronic pain condition. The respondent relies on the s. 44 reports of Dr. Manhas which found that the applicant did not have any accident-related functional limitations.
33The applicant acknowledges that the pre-accident clinical notes and records from Dr. Pandey dated July 24, 2018, support that he has been suffering from chronic pain or fibromyalgia, and that he has been stable on narcotic pain medication, including Oxyneo and Oxycocet, for a decade. The evidence is also clear that the applicant has been getting regular pain injections for his back and neck from Dr. Sarca since well before the accident, and that he was in receipt of ODSP according to Dr. Pandey’s clinical notes dated March 25, 2019.
34In the context of the applicant’s claim that he should be removed from the MIG based on accident-related chronic pain, I find that it is significant that he was involved in subsequent motor vehicle accidents on August 2, 2022, September 11, 2022, and December 13, 2022. According to Dr. Pandey, the applicant doubled his narcotic pain medication of his own volition after the September 11, 2022, accident when his pain increased. Up until that time the applicant’s pain medication remained relatively unchanged since before the accident. The applicant continued on the same medication regimen following the accident and continued with the same pre-accident pain injections with Dr. Dana Sarca.
35To summarize, the applicant has had chronic pain for at least a decade before the accident, his medication was relatively unchanged until the September 11, 2022, accident, and he made limited post-accident pain complaints to Dr. Pandey. For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that he suffers from chronic pain with functional limitations as a direct result of the accident.
36The applicant is subject to the MIG and the $3,500.00 finding limit for a minor injury. The treatment plans in dispute propose goods and services that fall outside of the MIG. As a result, I find that the applicant is not entitled to the treatment and assessment plans in dispute dated October 20, 2020, for chiropractic services, February 21, 2021, for a psychological assessment, and August 18, 2021, for psychotherapy services. The applicant is only entitled to treatment up to the MIG limits.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
ORDER
38The applicant is not entitled to IRBs from January 6, 2020, and ongoing (less $500.00 paid).
39The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.
40The applicant is not entitled to the treatment plans in dispute.
41The applicant is not entitled to interest.
Released: November 21, 2024
Tyler Moore
Vice-Chair