Abbasi v. Certas Home and Auto Insurance, 2024 CanLII 20674

Citation: Abbasi v. Certas Home and Auto Insurance, 2023 ONLAT 21-015297/AABS

Licence Appeal Tribunal File Number: 21-015297/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:

Muhammad Abbasi Applicant

and

Certas Home and Auto Insurance Respondent

DECISION

ADJUDICATOR: Anita Sol-Edeigba

APPEARANCES:

For the Applicant: Muhammad Abbasi, Applicant Anastasiya Chepak, Counsel

For the Respondent: Certas Home and Auto Insurance, Adjuster Brittanny K Tinslay, Counsel

HEARD: In Writing

OVERVIEW

1Muhammad Abbasi, the applicant, was involved in an automobile accident on June 14, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Certas Home and Auto 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 limit and in the Minor Injury Guideline (MIG)?

ii. Is the applicant entitled to $2,516.23 for physiotherapy proposed by Heathland Wellness in an OCF-18/treatment plan submitted September 16, 2020, and denied September 21, 2020?

iii. Is the applicant entitled to $3,364.00 for an Orthopaedic Assessment proposed by Tier 1 in an OCF-18/treatment plan submitted September 16, 2020, and denied September 16, 2020?

iv. Is the respondent liable to pay interest under s.51 of the Schedule?

RESULT

3The applicant has not demonstrated that his injuries fall outside the MIG.

4The applicant is not entitled to the treatment plans in dispute.

5Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s.51 of the Schedule or an award.

ANALYSIS

MINOR INJURY GUIDELINE

6Section 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, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.’’

7An insured may be removed from the MIG if they can establish that their accident –related injuries are not predominantly minor as defined in the Schedule.

8In the event that the applicant’s injuries fall within the definition of a minor injury, the applicant can be removed from the MIG in accordance with section 18(2) of the Schedule. The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:

a. The insured person has a pre-existing medical condition.

b. The pre-existing medical condition was documented by a health practitioner before the accident.

c. The insured person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury, if the insured person is subject to the $3,500 limit under the MIG.

9The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG.

10The applicant bears the onus to establish on a balance of probabilities that his injuries fall outside the MIG. Here, the applicant submits that he is out of the MI. The respondent submits that applicant sustained injuries consistent with the Minor Injury Guidelines as a result of the injury which resolved in the 2-3 years.

Pre-existing medical condition

11The applicant has not provided compelling medical evidence of a pre-existing medical condition that would prevent him from achieving maximal medical recovery, if held within the MIG. The applicant submits that he has experienced ongoing symptoms of shoulder pain and lower back pain post-accident. Diagnoses made in the ER dated June 14, 2015, supports that the applicant was seen due to the accident. It is pertinent to state that the applicant has neither argued for, nor provided any compelling evidence of pre-existing medical evidence that would affect his recovery within the MIG.

12The applicant did not suffer any fractures, full thickness tears, or dislocation in the accidents. The applicant alleges that he has developed a chronic pain syndrome.

Chronic pain.

Finding on chronic pain

13The applicant submits that in the reconsideration decision of 17-000835 v Aviva chronic pain syndrome can be sufficient to remove an applicant from the MIG and is defined as “Ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affect the individual well being. The applicant submits further that he has experienced ongoing pain lasting more than 3 to 6 months. It has now been about 8 years since the accident. I do not agree that chronic pain can be said to be the case, merely because of the duration that has lapsed since the injuries were sustained, but there are other factors that would be considered to determine whether there is chronic pain.

14The applicant attended an appointment with his family physician Dr Waraich on June 15, 2015. Dr. Waraich examined the applicant and indicated neck and back pain with soft tissue and flexion extension. An x-ray of the Lumber spine dated June 14, 2015, indicates there is endplate osteophytes of L4 and L5. There is mild posterior disc narrowing at L5-S1 and there is no fracture nor dislocations. The medical evidence confirmed in another x-ray of the cervical spine dated June 14, 2015 which demonstrates loss of normal cervical lordosis and mild disc space narrowing at L5-SI. There is also no fracture or dislocation. The CNR of Dr. Waraich indicates that applicant continued to have neck and low back pain, shoulder stiffness, increase in pain with movement of neck. I agree with the respondent that loss of normal cervical lordosis and mild disc spaces narrowing at L5-S1IS are injuries that appear to be degenerative changes from age. These injuries are minor injuries because there was no fracture nor dislocations. I find the applicant has not demonstrated that removal from the MIG is warranted.

15In addition, the applicant experienced slow range of motion in the neck. He is unable to work 12-hour shifts. Cervical and lumber strain are noted. A disability certificate dated June 22, 2015 was submitted on behalf of the applicant noting that he sustained the following injuries: headaches, pain in thoracic, low back pain, sprain, and strain of sacroiliac join, gluteal tendinitis, sprain and strain of other parts of shoulder girdle and cervicalgia. All of these injuries listed in the disability certificate are soft tissue injuries consistent with the MIG. The applicant was also prescribed medication from June 2015 to 2020. The CNRs of Dr. Waraich explained that the applicant would start physiotherapy with relief in symptoms. Low back stiffness persists, improved neck movements with no neurovascular deficit. Full flexion at the waist. Minimal tenderness at lumber spine. Back strain is the diagnoses because of the accident. I find these injuries falling within the MIG as in section 3(1).

16The applicant saw Dr Chang on October 23, 2020, who notes chronic neck and back pain. The respondent then requested the applicant be assessed by Dr. Gilbert Yee. In the report of April 3, 2023, Dr. Yee determined that the injuries are minor and had degenerative changes. Dr Yee stated that ‘’strictly from an orthopaedic perspective the applicant has residual symptomatology related to myofascial strains of the cervical spine trapezius and lumber spine in the context of pre-existing underlying degenerative changes’’. In conclusion, Dr Yee affirmed that from an orthopaedic perspective his injuries would be considered predominantly minor injuries in nature. I agree with Dr. Yee’s argument that the degenerative disc suffered by the applicant were Minor injuries. In the decision of 16-001387 v Aviva Insurance Company of Canada, 2017 CanLII 12598 (ONLAT), an MRI was completed almost two years post accident, which showed multi-level degenerative disc disease of the Lumber spine. In spite of this the Tribunal found that this did not result in a MIG removal.

17From the x-ray carried out on the applicant, he did not suffer any fractures, full thickness tears, or dislocation in the accidents. Fundamentally, the applicant’s case rest on the claim that he has developed a chronic pain syndrome. However, the clinical notes of Dr. Chang referred to the word “chronic pain’’ which appear to be in relation to his temporal aspect of his pain complaints, there is no indication of a chronic pain syndrome. It is well established that to be removed from the MIG as a result of chronic pain, an applicant must show that they have been diagnosed with chronic pain syndrome or demonstrate that her chronic pain has result in functional impairment.

18It is also well established that for chronic pain to take him out of the MIG, there must be a significant effect on his functionality. The applicant was a Scale Operator for Sako, and the job was a computer type sedentary job. The applicant was off work for about a couple of weeks and returned to his regular duties in July 2015. There is no evidence to support a failure to return to pre-injury function, he returned to his employment in 2015, all his self-care and his household duties were being performed. The applicant mentioned that his functionality is affected by lifting heavy objects above 10IIbs. The issue, I find of importance is whether it’s related to the motor vehicle accident. Also, how often did the applicant lift heavy objects before the MVA, and how has it affected his regular life. I therefore find that there are no limitations in applicant’s functionality.

19The applicant went for bilateral shoulder radiographs on June 1, 2020, and there was no acute osseous abnormality. There was possible rotator degeneration on the left side which appears to be a degenerative condition which the applicant has not tied to the accident. I find that this injury is also part of the MIG, even if in a degenerative condition,

Did the applicant suffer from exacerbations due to his accident-related injuries?

20On the applicant’s position that after his increased back and cervicothoracic junction pain had resolved again, he suffered exacerbations or reaggravation of his initial injuries from the subject accident. Yet a treatment note dated January 4, 2018 indicates that applicant has lower back pain and upper back pain after shovelling snow. Another treatment note on January 18, 2018 indicates that the applicant’s reports increased lower back pain after he slipped when exiting his car. The April 12, 2018, treatment note indicates that applicant was reaching for his printer at work and fell over on his right shoulder. A note from June 28, 2018, indicates that he was reaching for his socks and felt a sharp pain. The applicant saw Dr Beshay on August 29, 2018, and he complained of low back pain. A treatment note from August 30, 2018, indicates that he was praying and did a forward bend on the way up as he felt a sharp pain on the left of his low back. The applicant submits that these circumstances were exacerbations or reaggravations of his initial injury. I do not agree with the applicant that these were exacerbations of his former injury. Rather it is clear that the applicant later suffered injuries when he was shovelling snow, when he slipped from the car and when he fell among other events leading to pain. This is not sufficient for removal from the MIG under s.18(2).

21Further, in order for chronic pain to warrant removal from the MIG, the applicant must show that he has ongoing pain as a result of the accident which has a detrimental impact on his functionality. The Tribunal has adopted the American Medical Association Guides (“AMA Guides”) as an evaluative tool for deciding whether chronic pain effects the applicant’s function to a degree that warrants removal from the MIG. The AMA Guides include the actors that may be considered. To establish chronic pain, an applicant must demonstrate that they meet at least three of the six criteria:

a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances

b. Excessive dependence on health care providers, spouse, or family:

c. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain;

d. Withdrawal from social milieu, including work, recreation, or other social contracts;

e. Failure to restore pre-injury function after a period of disability such that the physical capacity is insufficient to pursue work, family or recreation needs;

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

22The applicant only makes reference to three of the criteria’s and submits that he has been over- dependent on these drugs (Naproxen and Cyclobenzaprine), Diclofenac over the 8 years since the accident. In a span of 2015 to 2020 when he took the prescription medication, applicant has taken these drugs as well as occasional uses of other analgesics. I do not find the applicant usage of these drugs as over dependence on these prescription drugs as a result of the accident. In any case. I find the applicant’s sporadic and limited usage of the drugs is not evidence of overdependence.

23On the second criteria which is over dependence on health care providers, spouse, or family the applicant attended treatment at Heartland Wellness consistently through November 2015 (from twice weekly, and down to once weekly by October 2015). He then attended twice in December, twice in January 2016, and once in each month from February through June 2016. The applicant returned to full hours and full duties on July 27, 2016. The applicant saw Dr. Beshay on July 3 and 23, 2015 regarding a cut he sustained, then saw Dr. Bershay on March 4, 2016 for a cough, August 2016 for sore throat after returning from Pakistan. A treatment note dated April 20, 2017 indicates that applicant pulled a muscle in his lower back. The applicant saw Dr. Beshay on May 2, 2017, regarding a cough. Another year passed before the applicant saw Dr. Waraiah. The applicant saw Dr. Bershay on January 3, 2018, regarding fever, March 8, 2018, for eczema and April 12, 2018 for sore throat. I am not persuaded that the times the applicant visits to Heathland Wellness in 8 years to be an overdependence on health care providers. I find that no mention is made regarding interaction with spouse. It appears that the applicant is independent in his care and activities of daily living.

24Regarding the applicant’s withdrawal from social milieu, the applicant submits that playing cricket was the only recreational interest he had. In order to determine whether the applicant has withdrawal from social milieu, it is pertinent for the applicant to provide evidence of how often he played cricket, otherwise you cannot determine whether the applicant withdrew from cricket.

25Based on the totality of evidence, I agree with Dr Yee in his assessment of April 3, 2023 that the treatment plans dated September 16, 2020 and September 19, 2020 were not reasonable and necessary. These treatment plans were not approved because the injuries were determined to be minor based on the review of medical documentation.

Awards

26The applicant raised the issue of an award in his submission. This was not raised in his case conference submission, neither was the issue raised in the respondent’s submissions. I am not satisfied that an issue of an award is before me.

Interest

27As no benefit are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant s.51 of the Schedule

ORDER

28For the foregoing reasons I find that:

i. The applicant sustained minor injuries as a result of the accident that are treatable within the MIG.

ii. The applicant is not entitled to the two treatment plans in dispute, plus interest in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to an award.

iv. Given that there are no benefits owed the applicant is not entitled to interest pursuant to S. 51 of the Schedule

29The applicant is not entitled to an award under s. 10 of O. Reg 664 as there are no benefits payable so therefore the respondent did not unreasonably withhold or delay any of the payment of benefits.