Mohamud v. TD General Insurance Company, 2024 CanLII 121072

Citation: Mohamud v. TD General Insurance Company, 2024 ONLAT 22-006178/AABS

Licence Appeal Tribunal File Number: 22-006178/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:

Osman Mohamud

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Anita Sol-Edeigba

APPEARANCES:

For the Applicant: Matthew Hyland, Counsel

For the Respondent: Adrianna Klukowska, Counsel

HEARD: In Writing

OVERVIEW

1Osman Mohamud, the applicant, was involved in an automobile accident on August 26, 2021, 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, TD General 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. Are the applicant’s injuries predominantly minor as defined in the s.3 of the Schedule, subject to treatment within the $3,500 limit in the MIG?

ii. Is the applicant entitled to $2,460 for an orthopedic assessment, proposed by Dr. Ogilvie -Harris of All Health Medical Centre in a treatment plan/OCF -18, which was submitted on May 3, 2022?

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

RESULT

3The applicant has demonstrated that removal from the MIG is warranted. I find that the applicant is entitled to the treatment plan, plus interest in accordance with s. 51 of the Schedule.

ANALYSIS

Minor Injury Guideline (MIG)

4The MIG establishes a framework available to injured persons who sustains 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. The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of a “minor injury.’’

Medical and Rehabilitation Benefits

5Section 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 strain, sprain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury.”

6Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

7The applicant has the onus of proving on a balance of probabilities that the treatment plan is reasonable and necessary and as a result of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree, and whether the time and cost expended to achieve these goals is proportional to the benefit.

OCF-18 For Chronic Pain Assessment.

(a) Dr Darrel Ogilvie-Harris

8I find that the applicant has non-minor injury that takes him out of the MIG.

9To support the claim the applicant relies on the notes, reports of several medical practitioners as follows

10The applicant submitted an OCF-18 for a s. 25 Orthopaedic assessment by Dr. Darrel Ogilvie-Harris. Dr. Ogilvie-Harris had carried out a telephone assessment on the applicant on August 12, 2022. The purpose of the assessment was to determine the applicant’s orthopedic injuries, to provide diagnoses and recommend treatment. The medical evidence relied upon was a May 3, 2022, virtual orthopedic assessment report of Dr. Ogilvie-Harris, who diagnosed the applicant with chronic pain injuries and opined that he required a multidisciplinary rehabilitation program.

11The respondent denied the treatment plan in dispute, relying on the insurer’s examination (IE) assessment of its General Practitioner, Dr. Seung-Jun Lee, dated March 18, 2022. Dr. Lee submitted that the applicant had sustained a soft tissue injuries including whiplash associated disorder, bilateral shoulder sprain/strain, and lumber myofascial sprain sprain/strain. Dr. Lee opined that the treatment was not reasonable and necessary.

12The respondent contends that a physiatrist-type examination has ‘’little value’’ without a physical examination. In addition, the respondent stated that the report of the applicant was therefore considered as self reporting since there was no physical effect considering the submissions and evidence of the parties. However, I will be assigning much weight to the report of Dr. Ogilvie-Harris conducted by telephone assessment because I find that the reports of ongoing pain were further corroborated by the applicant’s physician, Dr E. Abdulkarim. On October 27, 2021, Mr. Phillip McNeely of Pro Physics & Sports Medicine, completed an OCF-3, Disability Certificate, diagnosing the applicant with the same diagnoses.

(b) Dr. Emad Abdulkarim-Applicant family physician

13In terms of the applicant accident, Dr. Emad Abdulkarim, family physician noted in his report dated August 31, 2021, that the applicant complained of pain in his neck, shoulder, and lower back, general muscle ache, headache, as well as feeling anxious. He also complained of having Post Trauma Stress Disorder (PTSD) and was unable to sleep. Dr. E Abdulkarim observed tenderness in the left shoulder with restriction of movement, and prescribed Baclofen, Naproxen and Tecta.

14The respondent denied the treatment plan in dispute, relying on the insurer’s examination (IE) assessment of its General Practitioner, Dr. Seung-Jun Lee, dated March 18, 2022. Dr. Lee observed that the applicant was able to remain seated in a singular seat for 20 minutes, his cervical spine extension was limited to 15 degrees and noted for the examination of the upper extremities, the applicant’s upper extremities was fully supported by the examiner. Dr. Lee submitted that the applicant had sustained soft tissue injuries including whiplash associated disorder, bilateral shoulder sprain /strain, and lumber myofascial sprain sprain/strain. Dr. Lee opined that the treatment was not reasonable and necessary.

15I find that the applicant has adduced sufficient medical evidence to establish that the proposed orthopedic assessment treatment is necessary and reasonable.

16With respect to the accident, I find that the medical records establish that the applicant sustained a number of physical impairments as a result of the subject accident. Throughout 2021 and 2022, the applicant consulted with his family physician and specialist, including orthopaedic surgeon such as Dr. Darrel Ogilvie-Harris regarding his pain.

OCF-18 For Chronic Pain Assessment.

(c) Dr Darrel Ogilvie-Harris

Chronic Pain

17I am satisfied that the applicant has chronic pain as a result of the accident.

18The American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition 2008, (‘’AMA Guides’’) identify six criteria major’ characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome.

19The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule for MIG purposes. The Tribunal has adopted the use of the AMA Guides as an interpretive tool for evaluating chronic pain claims in the absence of a diagnoses.

1. the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
2. excessive dependence on health care providers, spouse, or family;
3. secondary physical deconditioning due to disuse and/or fear/avoidance of physical activity due to pain;
4. withdrawal form social milieu, including work, recreation, or other social contacts;
5. a 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; and
6. the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behavior.

Dr. Ogilvie-Harris report

20In his report dated August 12, 2022, Dr. Ogilvie-Harris addresses the criteria under the AMA Guides. However, for reasons below, I assign much weight to Dr. Ogilvie-Harris’ opinion, he opined that the applicant scored positive criteria to 2, 3, 4, 5 and 6, which is a score of 5/6, which meets the threshold for a probable diagnosis of chronic pain syndrome. Based on the above-noted score as well as my own finding that the applicant has developed chronic pain syndrome. I find that the applicant met criteria 3, 4, 5 and 6, which is a score of 4/6.

21With respect to secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain, Dr. Ogilvie-Harris stated that the applicant has become socially withdrawn because of his pain and lack of energy. Dr. Natalia Zhukova, psychotherapist and Dr. Leon Steiner, rehabilitation psychologist and neuropsychologist, also conducted physiotherapy and a comprehensive pain management program in their report of February 28, 2023

22Under criterion 4, Dr. Ogilvie-Harris noted that the applicant experiences a substantial and continuous impairment of his ability to perform his employment, orthopedic assessment treatment functions, housekeeping/home maintenance tasks and recreational activities as a result of his impairment.

23Pertaining to criterion 5, Ogilvie-Harris reports constant pain in applicant’s shoulder, lower back, and neck as well as frequent headaches which has been present for a duration of approximately two years which is well beyond the normal healing time for his injury to resolve. Dr. Ogilvie-Harris indicated that the applicant has sought psychological relief which was provided by the respondent. His pain complaints were also corroborated by Dr. Rhonda Nemeth, the psychologist, who examined the applicant on March 4, 2022, and opined that the applicant is prone to somatic concerns. Dr. Nemeth expressed that the applicant has symptoms meeting the criteria for the diagnoses of other specified trauma – and stressor-related disorder. She added that these diagnoses reflect the existence of symptoms of PTSD, including anxiety in a motor vehicle and that it did not meet the criteria of a minor injury because they required psychological treatment that is not included within the Minor Injury Guideline.’’

24With respect to criterion 6, the applicant returned to work in October 2021 and reported to Dr. Ogilvie-Harris indicated that applicant pain and limitation prevent him from spending leisure time with his daughter and friends, attending social and community events, playing basketball and soccer. He used to go biking and hiking with friends.

25After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has met his evidentiary onus of showing that his chronic pain requires removal from the MIG

Treatment plan

26The applicant has demonstrated on a balance of probabilities that he sustained impairment that justifies removal from the MIG.

27Having determined that the applicant sustained an impairment that justifies removal from the MIG, I turn to an analysis of the treatment plan in dispute. In order for a medical or rehabilitation benefit to be payable under the Schedule the applicant must demonstrate that it is reasonable and necessary.

28The treatment plan in dispute here is reasonable and necessary as $2,460.00 is a modest cost to pay in order to improve the applicant’s functioning.

Interest

29The applicant is entitled to Interest that applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

30The applicant is entitled to $2,460.00 for an orthopedic assessment, proposed in a treatment plan/OCF-18, which was submitted on May 3, 2022.