Licence Appeal Tribunal File Number: 21-010744/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:
Elyass Sabori
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR: Jeffery Campbell
APPEARANCES:
For the Applicant: Bianca Crocetti, Paralegal
For the Respondent: Ms. Nathalie Rosenthall, Counsel
HEARD: In Writing
OVERVIEW
1Elyass Sabori, the applicant, was involved in an automobile accident on February 16, 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, Economical Insurance Company and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issue(s) in dispute is/are:
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? Note: The parties agree the MIG limits have not been exhausted and their submission shall identify the amounts remaining.
Is the applicant entitled to an income replacement benefit in the amount of $396.57 per week from July 12, 2021, to date and ongoing?
Is the applicant entitled to $1,240.91 for chiropractic services, proposed by Parkside Village Therapy in a treatment plan/OCF-18 (“plan”) dated October 12, 2021?
Is the applicant entitled to $1,340.66 for chiropractic services, proposed by Parkside Village Therapy in an OCF-21 (“plan”) dated October 12, 2021?
Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Tier One Assessments in a treatment plan dated Mach 9, 2022?
Is the applicant entitled to $2,460.00 for physiatry assessment, proposed by Tier One Assessments in a treatment plan/OCF-18 (“plan”) dated March 9, 2022?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries warrant removal from the MIG.
4The applicant is not entitled to an IRB or interest.
5The applicant is not entitled to the treatment plans or interest.
6The applicant is not entitled to an award.
ANALYSIS
Removal from the MIG
7I find that the applicant has met his onus of proving that his accident-related impairments warrant removal from the MIG.
8The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9An 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 they have a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG.
10The Tribunal has also determined that an applicant may be removed from the MIG if they sustained chronic pain with functional impairments. They can also be removed if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under section 3(1).
11The applicant submits that the clinical notes and records of his family doctor, Dr. Odette Wahba, the clinical notes and records of Parkside Village Therapy, the applicant’s prescription summary from Kennedy Pharmacy and an Independent Chronic-Pain Assessment by Dr. Tajedin Getahun all establish that the applicant has sustained chronic pain injuries which warrants his removal from the MIG.
Dr. Odette Wahba (“Dr. Wahba”)
12In clinical notes and records between March 26, 2021 and October 25, 2022, Dr. Wahba notes the applicant’s complaints of neck pain, headaches, sleep disturbance, high anxiety and panic attacks. Dr. Wahba prescribed Tylenol 3 due to “MVA related injury”. On October 14, 2021, Dr. Wahba noted that the applicant “can go to psychologist for therapy”.
13I find that the complaints which the applicant made to his family doctor to be those which fall within the description of the MIG. While the prescription of Tylenol 3 is noted as due to the accident-related injuries, and is typically given for pain reduction, Dr. Wahba does not provide a specific pain related diagnosis. With respect to the notation of a psychologist, this appears to be more of an observation (that the applicant is free to attend at a psychologist for his anxiety issues) than a referral. For those reasons, I do not find Dr. Wahba’s notes and records, in isolation, to be persuasive with respect to the applicant’s removal from the MIG.
Parkside Village Therapy (“Parkside”)
14In a Disability Certificate (“OCF-3”), dated April 7, 2021, prepared by chiropractor Dr. Amrit Maiharu of Parkside, Dr. Maiharu described the applicant’s injuries as sprain and strain of thoracic spine; sprain and strain of lumbar spine; and whiplash associated disorder 2.
15The applicant submits that, between March 29, 2021 and September 29, 2021, the applicant attended at Parkside for ten physiotherapy sessions and twenty-on chiropractic sessions.
16With respect to the OCF-3, I note that the injuries listed all fall within the definition of MIG as defined in s. 3 of the Schedule.
17In review of the clinical notes and records of Parkside, the applicant complains of neck pain, dizziness, anxiety and headaches.
18I find that the clinical notes and records of Parkside do not provide evidence with respect to the applicant’s injuries being those that would be considered outside of the MIG.
Kennedy Pharmacy
19The applicant submits that his prescription summary reveals prescribed medications which commencing after the MVA attests to the seriousness of his injuries. These include Teva-Lenoltec purportedly for pain relief, first dispensed on March 26, 2021, Apo-Cyclobenzaprine purportedly for pain relief, first dispensed on April 13, 2021 and Apo-Zopiclone purportedly for sleeping issues, first prescribed on July 29, 2021. It also reveals Mar-Amitriptyline purportedly as an anti-depressant, first dispensed on June 13, 2022 and Apo-Gabapentin purportedly for nerve pain, first dispensed on January 10, 2023.
20While these prescriptions were undoubtably prescribed to the applicant, the medical records fail to disclose the diagnosis which they were prescribed to treat, or if those diagnoses were MVA related. Without that information, the prescription of those medications are not helpful in determining as to whether or not the applicant’s injuries are those which fall outside of the MIG.
Independent Chronic-Pain Assessment by Dr. Tajedin Getahun (“Dr. Getahun”)
21On May 25, 2022, the applicant attended an independent chronic pain assessment conducted, on the applicant’s behest, by orthopaedic surgeon, Dr. Getahun. In his report dated May 30, 2022, Dr. Getahun diagnosed the applicant with chronic myofascial strain of the cervical spine, chronic myofascial strain of the lumbosacral spine and chronic pain syndrome. Dr. Getahun reported that the applicant met three or more diagnostic criteria of the AMA Guides 6th Edition criteria for chronic pain syndrome. However, Dr. Getahun did not expand on how the applicant met those criteria.
22Dr. Getahun concluded that the applicant’s prognosis is poor due to the chronicity of his symptomatology and his response to treatment to date.
23He also stated that the applicant suffers a substantial inability to perform the essential tasks of his pre-accident employment as well as a complete inability to engage in any suitable form of employment based on his education, training or experience.
24Dr. Getahun further concluded that the applicant’s injuries do not fall within the MIG as the applicant’s “presentation is consistent with development of chronic pain syndrome and he reports anxiety”.
Insurer Examinations
25The respondent submitted an Insurer Examination Physiatry Assessment dated February 21, 2023 conducted by physiatrist Dr. Seyed Hossein Hosseini on December 15, 2022. In his report dated February 21, 2023, Dr. Hossieni concluded that, “from a strictly musculoskeletal perspective Mr. Sabori sustained predominately uncomplicated soft tissue injuries as a result of the subject accident which are minor as defined by the SABS.”
26On November 22, 2021, the applicant attended an Insurer Physician Assessment conducted by physician, Dr. David Mula. In his report dated January 11, 2022, Dr. Mula concluded that “…the insured did sustain an injury as a direct result of the accident that is a minor injury as defined in the SABS”.
27On January 30, 2023, the applicant attended an Insurer Examination Psychological Assessment conducted by psychologist, Dr. Douglas Saunders. In his report dated February 21, 2023 Dr. Saunders opined that “there is no evidence that the claimant’s accident-related condition could not be considered ‘minor injury’” and “there is no compelling evidence of a pre-existing impairment.”
28I note that while Dr. Hosseini, Dr. Mula and Dr. Saunders all conclude that the applicants’ injuries are of a minor injury category, none of those physicians specifically addressed the issue as to whether the applicant is suffering from chronic pain syndrome.
29While Dr. Getahun did little to expand on his conclusion that the applicant met three or more diagnostic criteria of the AMA Guides 6th Edition criteria for chronic pain syndrome, I do find his conclusion consistent with the medical records of his family physician and with those of his prescription summary. Between March 26, 2021 and October 25, 2022, we see a steady and consistent record of complaints of neck pain, headaches, sleep disturbance and anxiety. The subsequent prescriptions of pain-relievers, anti-depressant confirms Dr. Wahba’s concern with the appellant’s complaints.
30In the absence of any specific and contrary conclusions with respect to chronic pain, I am satisfied that the appellant has established, based upon the clinical notes and records of Dr. Wahba coupled with the conclusion of Dr. Getahun, that the appellant is suffering from chronic pain syndrome.
Functional limitations
31As noted, in order to be removed from the MIG the appellant must established that his or her chronic pain creates subsequent functional impairments.
32The clinical notes and records of both Dr. Wahba and Parkside indicate the applicant’s complaints of nervousness and panicking when driving as well as sleep disturbance.
33In his chronic pain assessment, Dr. Getahun noted that the applicant had advised him that he had not returned to the gym or recreational soccer and that he had curtailed social activities. He also noted that the applicant advised him that he has difficulties with housekeeping duties. These self-reported limitations are also reflected in the Physiatry Assessment of Dr. Hosseini and the Psychological Assessment by Dr. Saunders.
34I find the applicant’s complaints to be credible as they are consistent throughout the medical records of Dr. Wahba, Dr. Getahun and the insurer examination assessors. The self-reported restrictions, particularly those of sleep disturbance lead me to conclude that the applicant has sustained functional limitations arising from his MVA related injuries.
35As I have found that the applicant suffers from chronic pain syndrome, and now conclude that that condition has caused functional limitations, I find that the applicant has sustained injuries which warrant his removal from the MIG.
Income Replacement Benefits
36I find that the applicant has not met his burden in establishing his entitlement of income replacement benefits in the amount of $396.57 per week.
37The applicant is seeking a determination that he is entitled to an income replacement benefit in the amount of $396.57 per week from July 12, 2021 and ongoing. I find that the applicant has not met the burden of proof to establish entitlement to income replacement benefits.
38Due to the length of the income replacement benefits being requested by the applicant there are two periods to review, the first 104 weeks following the accident and then the time after that initial 104 weeks. The legal test for both periods is as follows:
i. To receive payment for an income replacement benefit within first 104 weeks of the accident (in this case up to February 16, 2023), 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.
ii. To receive payment for an income replacement benefit after the first 104 weeks of the accident (in his case after February 16, 2023), under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
39The applicant’s 2020 T1 General (Statement of Business or Professional Activities) reveals that the applicant was employed as an UBER driver in 2020. This is also the employer listed in the OCF-2 dated March 30, 2021. The 2020 T1 shows a gross business income of $15,654.00.
40An Income Replacement Benefits Account Report by S&T Accounting dated April 12, 2021 calculates the amount of income replacement benefits payable to the applicant as $396.57 per week. The S&T Report also advised that the applicant was receiving Employment Insurance benefits at the time of the report. However, the EI benefits were not factored into the calculation of IRB.
41The applicant has submitted a 2021 T1 Summary which does not include the EI benefits as income. Despite an Order from Adjudicator Thorne dated November 28, 2022, the applicant has not produced any T1s or Notices of Assessment for the years 2021 and onward, or employment records. The applicant has also not produced the EI file.
42The respondent requests that the Tribunal draw an adverse inference for the failure of the applicant to produce the required financial documentation. I find that this is a situation which calls for that adverse inference to be drawn (the conclusion that the applicant has incurred post accident income by virtue of his failure to produce the necessary documentation).
43Indeed, without the applicants 2021 and onward tax information as well as the applicant’s employment file, it is not possible to quantify any IRB payable, even if the Tribunal were to find, based on medical information, that the applicant is entitled to IRB.
44Based upon those reasons, I find that the applicant is not entitled to the payment of IRB.
The Treatment Plans
45I find that the applicant is not entitled to the treatment plans in dispute as the applicant has not provided sufficient evidence to meet his burden of proof that they are reasonable and necessary.
46Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment is reasonable and necessary.
47The Tribunal has held that treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. There should be corroborating contemporaneous and objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment.
48The four treatment plans in dispute include two plans for chiropractic services from Parkside Village Therapy (one in the amount of $1,290.91 and one in the amount of $1,340.66). The other two treatment plans are for assessments proposed by Tier One Assessments (a chronic pain assessment in the amount of $2,460.00 and a physiatry assessment also in the amount of $2,460.00).
49The applicant submits that the Treatment Plans (particularly Parts 6 and 9) establish the reasonableness necessity for the treatment that is requested within them. However, as noted, objective and contemporaneous evidence, beyond that of the Treatment Plans is for the applicant to meet their burden of proof.
50The respondent submits that the applicant’s family doctor has not recommended chiropractic treatment nor has referred the applicant to either a chronic pain or physiatry assessment.
51I concur with the respondent. I have no objective and contemporaneous evidence before me with respect to the reasonableness and necessity of any of the four treatment plans. The only recommendation for medical treatment in the applicants submissions is that of a chronic pain program, proposed by Dr. Getahun in his report of May 30, 2022. However, no such treatment plan is being disputed, if, indeed, one exists.
52I find that, due the lack of evidence, the applicant has not met his burden of proof with respect to the reasonableness and necessity of the treatment plans.
Interest
53As the applicant has not proven entitlement to either income replacement benefits or any of the treatment plans in dispute, no interest is owing.
Award under s. 10 of Regulation 664
54The applicant requests that the respondent is liable to pay an award under Regulation 664 as it unreasonably withheld or delayed payments to the applicant.
55As I have found that the applicant is not entitled to the benefits names as issues, it follows that no benefit has been unreasonably withheld or delayed, I decline to order an award.
ORDER
56The applicant is removed from the MIG and its $3,500.00 limit on treatment.
57The applicant is not entitled to income replacement benefits in the amount of $396,57 per week and ongoing.
58The applicant is not entitled to the treatment plans in dispute.
59The applicant is not entitled to interest.
60The applicant is not entitled to an award.
Released: February 29, 2024
Jeffery Campbell
Vice-Chair