Syed Hamza v. Economical Insurance, 2024 CanLII 13103

Citation: Syed Hamza vs. Economical Insurance, 2024 ONLAT 22-002523/AABS

Licence Appeal Tribunal File Number: 22-002523/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:

Syed Hamza

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Bahman Azimi, Counsel

For the Respondent: Patrick G Myers, Counsel

HEARD: By way of written submissions

OVERVIEW

1Syed Hamza, the applicant, was involved in an automobile accident on August 21, 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, Economical Insurance, 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 s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to the treatment plans/OCF-18s proposed by HealthMax Physiotherapy Scarborough (“HealthMax”) for chiropractic services, as follows:

a. $500.00 ($1,300.00 less $800.00 approved) in a treatment plan/OCF 18 (“plan”) submitted January 13, 2021, and denied March 23, 2021?

Note: see paragraph [4]

b. $3,149.74 in a treatment plan/OCF 18 (“plan”) submitted March 23, 2021, and denied April 13, 2021?

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

3The respondent confirmed in submissions that as of January 18, 2022, the applicant had used $443.81 in benefits.

4The respondent’s evidence included the denial letter for the OCF-18 in the amount of $1,300.00. The letter indicates that the treatment plan was partially approved for $800.00 (up to the MIG monetary limit of $3,500.00).

RESULT

5The applicant remains within the MIG. However, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits if they already have been incurred under the MIG are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

6Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

PROCEDURAL ISSUE

7The respondent advised in submissions that the applicant had relied on two letters from Dr. Anu Jacob, the applicant’s general physician (“GP”), that were not disclosed in accordance with the deadlines established by the case conference report and order (“CCRO”). The two letters and attachments were included in the applicant’s adduced evidence to his written submissions dated August 5, 2023.

8The respondent submits that these documents were produced long after the last production date provided by the CCRO which was May 21, 2023. The respondent also acknowledges that it had provided its own productions approximately ten days later than the expected CCRO deadline.

9Given that the respondent seeks no specific relief in relation to the matter and both parties conceded they had agreed to be cooperative with regard to document exchange and the set deadlines, I will consider all evidence provided for this hearing.

ANALYSIS

The Minor Injury Guideline (“MIG”)

10I find that the applicant’s injuries meet the definition of minor under s. 3 of the Schedule.

11Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

12An insured person 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 before the accident, they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

13The applicant submits that his injuries are not minor, and he should be removed from the limits of the MIG due to chronic pain and a psychological impairment. He relies on an OCF-3 from chiropractor Dr. Icatar at HealthMax, the clinical notes and records (“CNRs”) of his GP Dr. Jacob, and a psychological screening report from Rehabilitation Psychology.

14The respondent submits that the applicant has not provided compelling medical evidence of either chronic pain or psychological impairment and relies on the conclusions of its s. 44 assessor Dr. Belfon, the CNRs of GP Dr. Jacob, and the functional ability assessments from Dr. Icatar at HealthMax.

Chronic Pain

15I find that the applicant has not established that he has chronic pain with a functional impairment that would warrant removal from the MIG.

16The applicant submits that he has consistently reported his pain and discomfort to his healthcare providers in the years after the accident. He points to the initial hospital record on the day of the accident, the OCF-3 from HealthMax shortly after the accident, and the CNRs from his GP. Indeed, the injuries documented in these records are consistent, and include sprains and strains with pain in the spine, wrist, neck, and elbow, with accompanying headache, dizziness, and a burn near the wrist. However, while consistent, I note that the injuries cited are all minor as defined by the Schedule.

17The applicant also submits that he was referred for ongoing physiotherapy, claimed both short and long-term disability benefits, and ultimately changed jobs due to his inability to function at his pre-accident levels. The respondent notes that his visits to his GP for accident-related issues were minimal, and none of Drs. Icarat, Jacob, or Belfon identify any injuries beyond soft tissue injuries, nor is there a referral at any time to a chronic pain specialist.

18The applicant visited his GP, Dr. Jacob, after the accident on August 25, 2020. She referred him for physiotherapy and did so several times between the accident and March 22, 2023. However, the respondent points out that there is a significant time lag after the two initial visits right after the accident, and it is not until the following year on July 27, 2021, that the applicant meets again with Dr. Jacob about his shoulder pain. The next visit was not until March 22, 2023, almost nine months later. While I agree with the respondent that the applicant’s visits to his GP were few and far between, nevertheless, Dr. Jacob confirmed in a letter dated August 4, 2023, that in her opinion, the applicant could benefit from physical therapy for his low back and shoulder pain.

19The applicant also highlights his progress at HealthMax with regard to his functional capabilities. He points to Dr. Icatar’s ongoing functional ability assessments which record his continual progress in reports dated September 28, November 12 and December 12, 2020, and January 14, 2021. However, by the February 16, 2021 assessment, only slight progress is reported, aligning with the conclusions from Dr. Belfon’s s. 44 assessment that maximal medical recovery had been reached.

20The respondent relies on the March 10, 2023 report of Dr. Belfon, a physical medicine and rehabilitation specialist. He found that the applicant’s injuries were soft tissue in nature and treatable within the MIG. Highlights of the report include assessments that the applicant was independent in his daily activities and there was no objective musculoskeletal impairment. Dr. Belfon acknowledged that there were some lingering pain symptoms, but nevertheless, opined that further facility-based treatment would not result in any further functional or therapeutic gains, given the length of time since the accident and the treatments already provided at the clinic.

21Both parties refer me to the six criteria for making a chronic pain diagnosis, of which an individual must meet at least three, found in the American Medical Association (AMA) Guides 6th ed. (“the Guides”). The Tribunal has recognized that this framework can be useful to establish an understanding of an individual’s functional capacity. Those six criteria are as follows:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other circumstances;

ii. Excessive dependence on health care providers spouse or family;

iii. Secondary physical deconditioning due to disease and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. 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

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviors.

22The applicant argues that he meets four of the six criteria while the respondent asserts that he meets none of them. The respondent underlines how the applicant does not take medication on a daily basis, had few medical appointments with his primary physician in the years after the accident, has worked full-time since 2021, and did not register any psychological complaints with his GP until almost three years post-accident. For his part, the applicant claims that he depends on family members for assistance, was required to change jobs due to his decreased functional capacity, has not returned to his pre-injury function after his time off work on short and long-term disability, and has developed driving-related anxiety.

23While I acknowledge that the applicant has some limitation in his functional capacity, and some remaining myofascial pain, I do not accept the applicant’s argument that he meets four of the six criteria. I see no compelling evidence that he could meet the three required to obtain a diagnosis of chronic pain by a qualified professional.

i. He has not demonstrated a dependence on medications. In fact, the medical history section of Dr. Belfon’s IE report indicates that he does not need pain medication on a daily basis, but only as needed.

ii. There is also no indication that he is dependent on either healthcare providers or family members. There are limited visits to his GP in the years after the accident, and he remains independent in his personal care and activities of daily living.

iii. With regard to work activity, the applicant has not provided any definitive evidence that his job change was due to accident-related injuries, and regardless, he has worked full-time since 2021.

iv. Dr. Belfon finds in his s. 44 report that the applicant may not have returned to his full pre-injury function. However, he concludes that the applicant has reached maximal medical recovery from his minor injuries sustained in the accident. Notably, Dr. Belfon opines that any residual symptoms can be adequately managed with pharmacological support as needed and a home-based stretching and exercise program.

Thus, while the applicant may have some ongoing symptoms of pain, they have not prevented him from engaging in work, family, or social activities. I am not convinced by his argument that he meets four of the six criteria that could lead to a diagnosis of chronic pain under the Guides.

24Although both Dr. Icatar and Dr. Jacob reference symptoms of chronic pain in their notes, I prefer the evidence of Dr. Belfon, who conducted a thorough in-person interview, physical examination, and medical record review. His focus was specifically on the question of whether or not the applicant’s injuries fell within the MIG.

25I give less weight to the opinion of chiropractor Dr. Icatar, as it is beyond her scope of practice to diagnose chronic pain. Similarly, Dr. Jacob’s CNR that references chronic pain is not persuasive as it is a single reference and is not accompanied by a diagnosis nor a referral for chronic pain treatment.

26For the reasons outlined above, the applicant has not established that he has chronic pain with a functional impairment. He remains subject to the MIG.

Psychological Impairment

27I find that the applicant has not demonstrated that he has a psychological impairment that justifies removal from the MIG.

28The applicant submits that a psychological impairment is not a minor injury, while the respondent submits that psychological symptoms, to merit removal from the MIG, must be an actual impairment and not just symptomology. It points me to N.K. v Wawanesa, 2020 CanLII 27381 (ON LAT) wherein a psychological impairment that would give rise to removal from the MIG was characterized as symptoms that were ongoing, substantive, and rising to the level of clinically significant psychological distress.

29Although the applicant didn’t obtain a referral from his GP for psychotherapy until three years after the accident, there is evidence that he reported his symptoms to Dr. Icatar at HealthMax, who recorded his anxiety and sleep disturbance in the OCF-3 shortly after the accident, and later in her functional ability assessments/progress reports in 2020 and 2021.

30The applicant further relies on the psychological screening interview performed by Zabina Ladak, a psychological associate with Rehabilitation Psychology, following a referral for cognitive behavioural therapy from his family physician. The interview took place on June 6, 2023, and resulted in a recommendation for a comprehensive psychological assessment to include file review, clinical interview, and psychometric testing. While I take note of the results from the screening interview, I give it less weight because it is not conducted by a psychologist, did not include any testing, and relies primarily if not entirely on the self-reports of the applicant.

31So, although I recognize that the applicant voiced his driving-related stress and sleep issues to Dr. Icatar at HealthMax, it is also true that he made no report of these psychological symptoms to his GP until three years after the accident and did not report them at all to Dr. Belfon.

32Thus, the applicant has not met his burden to prove he suffered a psychological impairment from the accident. His reports to Dr. Icatar were not echoed to Drs. Jacob and Belfon, his symptoms do not fundamentally impede his ability to function, nor do they reach the level of clinically significant distress.

33For these reasons, the applicant remains subject to the MIG as he has not demonstrated that he has a psychological impairment.

Conclusion

34The applicant has not met his burden to demonstrate that his injuries from the accident merit treatment outside of the MIG limit of $3,500.00. He has not provided compelling medical evidence to support his claim that his injuries warrant removal on the basis of either chronic pain or psychological impairment.

35As a result, the applicant remains subject to the MIG.

The Treatment Plans

36I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans as I have found that the applicant’s injuries are properly treated within the MIG.

37The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, for benefits that have been incurred under the MIG. Pursuant to s. 40(8) of the Schedule, such benefits are deemed reasonable and necessary.

Interest

38Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

ORDER

39The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.

40The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits that are already incurred under the MIG, are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

41Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.