Licence Appeal Tribunal File Number: 21-009638/AABS
In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Mukhalad Ridha-Thiab
Applicant
and
Economical Mutual Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Maziar Mortezaei, Counsel
For the Respondent:
Louise Kanary, Jessica Meyerovich, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Mukhalad Ridha-Thiab, (the “applicant”) was involved in an automobile accident on August 20, 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 Economical Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
The applicant seeks relief under section 38(11) of the Schedule
2I find the applicant failed to prove the respondent did not give notice of its decision on the disputed treatment plan (the “OCF-18) proposed by Health-Pro Wellness for psychological services in the amount of $3,566.29, within 10 business days of receiving the OCF-18.
3Section 38(8) of the Schedule says that within 10 business days after it receives an OCF-18, the insurer shall give the insured person a notice that conveys whether or not it is approving the OCF-18. The consequences of failing to provide the notice within the prescribed period is made out in section 38(11), which provides that the insurer is prohibited from relying on the Minor Injury Guideline (the “MIG”) and shall pay all the goods, services, assessments, and examinations described in the OCF-18 that were incurred during the period of non-compliance.
4The applicant submits that the disputed OCF-18 for psychological treatment must be paid in full because the respondent failed to provide notice to the applicant within 10 business days of receiving the OCF-18. The applicant explains that the OCF-18 was submitted to the respondent on January 6, 2021, and that the respondent’s notice was dated January 21, 2021, which exceeds the 10-day obligation.
5The respondent argues that the insurer is not liable to pay for the OCF-18 because the delay was only one day, and the applicant did not provide evidence of incurring the OCF-18 within this period.
6I am not convinced the notice sent by the respondent was late. While I accept the parties agreed during the case conference that the OCF-18 was submitted to the respondent on January 6, 2021, I find the applicant failed to point me to evidence that substantiates the submission date, which is required to meet his onus.
7But even if the OCF-18 was proven to be submitted to the respondent on January 6, 2021, the respondent’s notice would be only one day late. The implication here, is that the obligatory payment period would start on the same day it would end—the 11th day after the respondent received the OCF-18. This means the respondent would be obligated to pay only for amounts incurred on January 21, 2021. And the applicant’s submissions do not point me to evidence that establishes any treatment was incurred that day on this OCF-18.
ISSUES
8The issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit?
ii. Is the applicant entitled to an income replacement benefit (the “IRB”) in the amount of $400.00 per week from October 21, 2019, to date and ongoing?
iii. Is the applicant entitled to attendant care benefits in the amount of $439.31 per month from October 21, 2019, to date and ongoing?
iv. Is the applicant entitled to a psychological assessment in the amount of $2,189.81, proposed by Health-Pro Wellness in an OCF-18 submitted on February 20, 2020, and denied on March 4, 2020?
v. Is the applicant entitled to psychological services in the amount of $3,566.29, proposed by Health-Pro Wellness in an OCF-18 submitted on January 6, 2021, and denied on January 21, 2021?
vi. Is the applicant entitled to physiotherapy services in the amount of $2,805.12, proposed by Health-Pro Wellness in an OCF-18 submitted on January 19, 2021, and denied on January 21, 2021?
vii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
9The applicant remains in the MIG and is not entitled to any of the disputed treatment plans. Neither the IRB nor the attendant care benefit is payable. As there are no benefits owing, the applicant is not entitled to interest and the respondent is not liable to pay an award.
ANALYSIS
Applicability of the MIG
10I find the applicant has not demonstrated he should be removed from the MIG.
11Section 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.” The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if he is 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.
12In this matter, the applicant seeks to be removed from the MIG because of a pre-existing condition, chronic pain, and a psychological impairment.
Pre-existing condition
13I find the applicant’s pre-existing conditions do not prevent maximal recovery of the applicant’s minor injuries if he remains in the MIG.
14The applicant submits that medical records confirm the applicant suffered from multiple pre-existing injuries that relate to an earlier accident in 2013, including a concussion, pain in this neck, back, and right leg, and symptoms of post-traumatic stress disorder (”PTSD”). The applicant explains that these injuries were exacerbated by the accident and prevent him from achieving maximal recovery if kept within the MIG. The applicant relies on his certificate of disability (the “OCF-3”), the clinical notes and records of Dr. Mikhail (family physician), and the Insurer’s Examination report (the “IE”) completed by Dr. Ahmed Belfon (general practitioner).
15The respondent submits that the medical evidence indicates the applicant’s injuries sustained in the 2013 accident were resolved at the time of the 2019 accident. The respondent argues the applicant therefore does not have a pre-existing condition that would create a barrier to maximal recovery under the MIG. The respondent relies on the medical opinions of the assessors who completed the OCF-18s in dispute.
16While I agree the applicant suffered neck and back pain associated with a 2013 accident—and received psychological treatment from December 2016 to April 2017 for mild-moderate PTSD—I was not pointed to medical evidence of a concussion or right leg pain. I disagree that Dr. Ahmed Belfon (general practitioner) confirmed the applicant’s pre-existing injuries in his report. Rather, he documented the applicant’s own recollection of his injuries, which is inconsistent with the fewer injuries documented in a consultation referral by Dr. J. Sahib (general practitioner) in 2013. I put more weight on the evidence of Dr. Sahib because it is contemporaneous to the accident, whereas the applicant’s recollection to Dr. Belfon occurred eight years later.
17Further to Dr. Belfon’s report, I am not satisfied that his finding of exacerbated pre-accident neck and back pain rises to a medical opinion of pre-existing conditions precluding maximal recovery of the applicant’s accident-related injuries. I am also not persuaded that the applicant’s complaints of post-accident pain to Dr. Mikhail demonstrate that his injuries cannot be treated within the MIG. I was not pointed to a medical opinion offered by Dr. Mikhail—or any other medical professionals who assessed or treated the applicant—that confirms the applicant’s pre-existing neck and back pain (i.e., the actual injuries reported by Dr. Sahib in 2013) will prevent maximal recovery of the applicant’s 2019 accident-related injuries if he remains in the MIG.
18Similarly, I am not persuaded by the OCF-3 completed by Rob Tarulli (chiropractor) on October 2, 2019. In part 8, which details prior and concurrent conditions, the annotations read as “previous MVA” and “WSIB.” I find these entries provide little insight into what actual conditions Dr. Tarulli attributes to the prior accident or workplace occurrence, and therefore do not support the applicant’s recollection of his injuries. In fact, as the respondent points out, Mr. Tarulli provides contradictory evidence in the OCF-18s he prepared. The disputed OCF-18 for a psychological assessment dated February 20, 2020, indicates in part 7 that the applicant did not have a pre-existing condition that could affect his responses to treatment for his accident-related injuries. Same for the disputed OCF-18 for physiotherapy dated October 13, 2020. The disputed OCF-18 for psychological services completed by Dr. Aghamohseni on October 19, 2020—who also certified the OCF-18 for psychological assessment prepared by Dr. Tarulli—offers the same opinion, which, in my view, diminishes the applicant’s PTSD as a pre-existing condition.
19Taken together on balance, I find this evidence does not support the applicant’s claim of pre-existing conditions that would prevent maximal recovery of his accident-related injuries if kept within the MIG. I therefore do not agree the applicant should be removed from the MIG on this basis.
Chronic pain
20I find the applicant has not demonstrated he has accident-related chronic pain that results in functional impairment.
21The Tribunal has consistently held that for chronic pain to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome or continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability. This is a severe and debilitating condition distinct from ongoing or recurring pain.
22The applicant submits he has been diagnosed with persistent and ongoing pain in his back, neck, and right shoulder, which has persisted for more than six months. The applicant also says that medical imaging shows he has multiple disc bulges and spinal stenosis as well as tendonitis and bursitis in his right shoulder. The applicant relies on the clinical notes and records of Dr. Mikhail as well as MRI imaging tests.
23The respondent submits the applicant does not meet the diagnostic criteria set out by the American Medical Association’s Guides (the “Guides”) and has failed to produce medical evidence of functional impairment owing to chronic pain. The respondent relies on the applicant’s prescription records, the clinical notes and records of Dr. Mikhail, and the medical opinion of Dr. Belfon.
24I accept the applicant suffered injuries as a result of the accident that include acute pain, whiplash, and sprains and strains to his entire spine, sacroiliac joint, shoulder joint, and rotator cuff capsule as documented in the OCF-3. The spinal injury—as well as headaches and right arm injuries—were confirmed during a physical examination by Dr. Belfon on March 10, 2021.
25While these injuries cause the applicant to experience pain, as evidenced by his complaints to Dr. Mikhail on several occasions after the accident between October 2019 and March 2022 , I find the evidence does not support severe and debilitating pain accompanied by functional impairment or disability.
26In my view, the most compelling evidence of functional impairment is the physical examination conducted by Dr. Mikhail contemporaneous to the accident in October 2019, and the subsequent physical examination of the applicant 17 months later by Dr. Belfon in March 2021. Dr. Mikhail observed limited range of motion in the applicant’s lumbar spine. At that time, the applicant complained he could not work as a landscaper because he was unable to lift or carry anything, and Dr. Mikhail advised the applicant against bending, lifting, or twisting as well as avoiding stairs and prolonged periods of standing or sitting. Dr. Belfon observed that while the applicant’s low back pain persisted, he was then able to demonstrate a fluid range of motion with no mention of limitations or restrictions. In fact, Dr. Belfon credited the applicant with a measure of functional recovery, and added that while the residual pain is likely to prevent further recovery, there were no objective impairments that should translate to limitations or restrictions.
27I find this evidence does not support functional impairment arising from the applicant’s pain. There are only two visits to Dr. Mikhail in evidence that occur after Dr. Belfon’s assessment—both occurring a year later in March 2022—and while the applicant’s pain complaints continue, Dr. Mikhail does not document any functional limitations, or advise of restrictions or limitations. Neither does he recommend physical therapy be restarted or prescribe pain-killing medications as he did twice previously up to January 2021. Instead, Dr. Mikhail refers the applicant to a pain clinic and I was not pointed to evidence that supports this referral was actioned by the applicant. In my view, this evidence is not consistent with severe and debilitating pain accompanied by functional impairment or disability.
28While the applicant submits that Dr. Mikhail diagnosed chronic pain injuries to the applicant’s back and neck, I was unable to confirm this specific diagnosis in the clinical notes and records that the applicant’s submissions directed me to. I did not place much weight on the diagnostic imaging investigations of the applicant’s right shoulder, cervical spine, and lumbar spine in February 2022 because I was not pointed to contemporaneous medical evidence of functional impairment or disability owing to the applicant’s degenerative disc disease and shoulder tendonitis and bursitis.
29Taken together on balance, I find this evidence does not support the applicant’s claim of chronic pain with functional impairment. I therefore am not persuaded to remove the applicant from the MIG on this basis.
Psychological impairment
30I find the applicant did not sustain a psychological impairment as a result of the accident.
31The applicant submits he has been diagnosed with sleeping issues, major depressive disorder, somatic symptom disorder, and vehicular phobia—all attributed to the accident. He adds that he continued to suffer from psychological impairments at the time of his assessment when he received his diagnoses, which was 14 months after the accident. The applicant relies on the report by Dr. Aghamohseni, dated October 21, 2020.
32The respondent submits that the applicant reported no need for psychological intervention and never reported issues of a psychological nature to his family physician. The respondent adds Dr. Godwin Lau (psychologist), who performed an IE on July 15, 2020, found no evidence to support a psychological diagnosis.
33I agree with he respondent. Although Dr. Aghamohseni offers psychological diagnoses related to the accident, I was pointed to little evidence of psychological symptomology in Dr. Mikhail’s records—or in any other evidence produced by the parties—from the time of the accident up to the applicant’s assessment with Dr. Aghamohseni. Specifically, the applicant’s submissions do not direct me to evidence of depression, anxious distress, or vehicular phobia outside of Dr. Aghamohseni’s assessment. I therefore find that Dr. Aghamohseni’s conclusions are unsupported by the bulk of the evidence in this case, and I diminish the weight of her findings accordingly.
34I prefer the report of Dr. Lau because I find it consistent with the other evidence in this matter. While the applicant initially reported pain-related sleeping difficulties to Dr. Mikhail in October 2019, I was not pointed to any further sleep complaints in evidence prior to Dr. Aghamohseni’s assessment, and Dr. Lau’s report indicates that the applicant was then sleeping eight hours a day with no nightmares. Aside from Dr. Aghamohseni’s report, the applicant’s submissions do not refer me to evidence that supports psychological challenges with daily tasks—including personal care, housekeeping and employment duties. Conversely, Dr. Lau’s report indicates the applicant has no problem with self-care, ambulation, or housework, and was performing light duties on a full-time basis at the time of the examination. Contrary to Dr. Aghamohseni’s finding of vehicular anxiety, Dr. Lau’s report indicates the applicant does not experience driving or passenger anxiety. In fact, the applicant reported he was able to operate a snowplow as part of his employment, and reiterated his ongoing involvement in residential and commercial snow removal a year later during his IE with Dr. Belfon.
35Taken together on balance, I am convinced this evidence does not support the applicant’s claim of psychological impairment owing to the accident, and I see no reason to remove the applicant from the MIG on this basis.
Income replacement benefit
36I find the applicant has not demonstrated he is entitled to an IRB.
Within 104 weeks of the accident (up to August 20, 2021)
37Section 5(2) of the Schedule lays out the IRB eligibility criteria for a self-employed person. To prove entitlement to an IRB, the applicant must show he was self-employed at the time of the accident, and that he suffered a substantial inability to perform the essential tasks of his self-employment as a result of, and within 104 weeks of, the accident.
38The applicant submits he was self-employed full-time as a general labourer at HG Landscaping at the time of the accident. The applicant says he was unable to return to work for at least two weeks after the accident, and that when he did return he was unable to meet the demands of his self-employment and was forced to hire an additional employee (i.e., his brother) to perform the labour-intensive duties. The applicant attributes his substantial inability to perform his essential work duties due to continuous and persistent back pain, neck pain, a right arm injury, psychological impairments, and functional limitations that render him unable to tolerate prolonged standing, heavy lifting, or repetitive movements. The applicant relies on the OCF-3, treatment records, and the reports of Drs. Mikhail and Belfon.
39The respondent argues that the applicant did not hire an additional employee to do his essential work tasks, and that the applicant failed to identify what his essential self-employment tasks are, which ones he is unable to perform, and to what extent he is unable to perform these tasks.
40I agree with the respondent. I am not convinced the applicant is substantively unable to perform the essential tasks of his self-employment because he did not point to evidence that confirmed his essential self-employment duties, which ones he could not perform, and to what extent he could not perform them. While the applicant’s submissions speak to restrictions associated with prolonged standing, heavy lifting, and repetitive movements—all of which also appear in part 6 of the OCF-3—the applicant does not direct me to evidence of the essential work tasks that require him to engage in prolonged standing, heavy lifting, and repetitive movements.
41Further, I do not accept that the applicant’s essential work tasks were limited to those involving general labour because he told Dr. Lau in 2020 that he was running the business with his brother. The following year, he told Dr. Belfon he had just secured a school board contract to service 13 additional sites. The evidence also shows that the applicant was able to perform light duties post-accident, as well as operate a snowplow. In my view, this evidence establishes, on balance, that post-accident, the applicant was capable of performing self-employment tasks other than those involving general labour.
42I disagree with the applicant’s position that paying his brother $32,650.00 for work performed between December 2019 and December 2021 confirms the applicant’s substantial inability to do self-employment tasks. The applicant did not point to evidence that persuaded me the job duties performed by his brother (i.e., landscaping, snow removal, and snow plowing) were essential self-employment tasks the applicant was substantially unable to perform. Nor did the applicant point me to evidence of his own wages, or what tasks he did to earn them, for this period.
43I also disagree with the applicant’s submission that he was forced to hire his brother after the accident to perform the applicant’s essential labour tasks. Dr. Lau’s report indicates the applicant said he opened his landscape business with his brother in May 2019 prior to the accident.
44While Dr. Mikhail’s clinical note of February 22, 2021, says the applicant is not able to function as he did before the accident, I am not convinced this opinion speaks to the essential job duties of the applicant, nor proves the applicant is substantively unable to perform them. Dr. Mikhail refers to heavy lifting and carrying, which, again, are work demands and not essential tasks.
45I do not accept the applicant’s position that Dr. Belfon diagnosed multiple injuries that prevented the applicant from returning to work. The applicant did not point me to an opinion that Dr. Belfon offered on the applicant’s substantial inability to perform the essential tasks of his self-employment, nor on a relationship between his injuries and ability to work.
46Taken together on balance, I find the applicant has not met his onus to show he had a substantial inability to perform the essential tasks of his self-employment as a result of, and within 104 weeks of, the accident. I therefore do not agree he is entitled to an IRB for this pre-104-week period.
After the first 104 weeks since the accident (from August 21, 2021, and onwards)
47Section 6(2)b of the Schedule says the respondent is not required to pay an IRB after the first 104 weeks of disability unless, as a result of the accident, the applicant is suffering a complete inability to engage in any self-employment for which he is reasonably suited by education, training or experience.
48The applicant submits he is entitled to a retrospective IRB from October 21, 2019, to December 4, 2021.
49The respondent argues that the applicant has not provided any evidence to suggest he meets the complete inability test, and adds that the applicant is currently self-employed.
50I find the applicant’s submissions address only the eligibility criteria for substantial inability in the first 104 weeks after the accident, and do not address the complete inability test for the period after the first 104 weeks. In my view, the applicant has not provided sufficient evidence to meet his onus, and I therefore do not agree the applicant is entitled to an IRB for the post-104-week period.
Attendant care benefits
51I find the applicant is barred from applying to the Tribunal for an attendant care benefit.
52The applicant submits he was provided with attendant care by his family members on an ongoing basis since the date of disability. He explains that he requires assistance with personal care and housekeeping tasks owing to limitations (i.e., prolonged sitting, standing, and walking; squatting and bending; heavy lifting; and repetitive movements) caused by chronic pain injuries, psychological limitations, and pre-existing medical issues. The applicant adds that section 3(8) of the Schedule specifically permits the Tribunal to find expenses payable even if not incurred.
53The respondent argues that the applicant is barred from applying for attendant care by section 14.2 of the Schedule because his injuries are minor. The respondent adds that should the applicant be removed from the MIG, the applicant has not submitted any evidence to prove that attendant care benefits are reasonable and necessary per section 19(1) of the Schedule.
54I am persuaded by the respondent’s position. The applicant remains in the MIG, and section 3(8) of the Schedule provides that the respondent is liable to pay attendant care benefits only where the impairment is not a minor injury
55I am therefore satisfied that I do not have jurisdiction to adjudicate the applicant’s claim for an attendant care benefit because he is not eligible for this benefit.
The disputed OCF-18s
56The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed treatment plans is not required. The parties have not identified what balance, if any, remains in the MIG. 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 are deemed reasonable and necessary pursuant to section 40(8) of the Schedule.
Interest
57Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no benefits owing, therefore, no interest is payable.
Award
58The applicant seeks 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. Since there are no benefits payable, the respondent is not liable to pay an award.
ORDER
59The applicant remains in the MIG and is not entitled to any of the disputed treatment plans. Neither the IRB nor the attendant care benefit is payable. As there are no benefits owing, the applicant is not entitled to interest and the respondent is not liable to pay an award.
60The application is dismissed.
Released: February 27, 2024
Michael Beauchesne
Adjudicator