Amiri v. Allstate Insurance Company of Canada, 2024 CanLII 20682

Citation: Amiri v. Allstate Insurance Company of Canada, 2024 ONLAT 22-003712/AABS

Licence Appeal Tribunal File Number: 22-003712/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:

Khatira Amiri

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Dayana Soto Santana, Paralegal

For the Respondent: Yalda Aziz, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1Khatira Amiri, the applicant, was involved in an automobile accident on August 29, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The accident occurred in a parking lot. As a result of the accident the applicant did not hit her head, or lose consciousness, and the vehicle airbags did not deploy. No emergency services attended the scene, the applicant did not attend the hospital following the accident, and she drove her vehicle home after the accident.

ISSUES

3The following issues are to be decided:

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 a non-earner benefit of $185.00 per week from September 29, 2019, to ongoing?

iii. Is the applicant entitled to $2,152.71 for chiropractic services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated September 16, 2022, and denied on October 4, 2022?

iv. Is the applicant entitled to $2,210.00 for physiotherapy services, proposed by 101 Assessment Centre in a treatment plan/OCF-18 dated November 29, 2021, and denied on December 8, 2021?

v. Is the applicant entitled to the assessments proposed by 101 Assessment Centre, as follows:

i. $2,460.00 for a driver evaluation assessment, in a treatment plan dated March 1, 2022, and denied on March 14, 2022?

ii. $2,460.00 for an orthopaedic assessment, in a treatment plan dated January 31, 2022, and denied on February 11, 2022?

iii. $2,460.00 for a functional cognitive assessment battery, in a treatment plan dated November 16, 2021, and denied on November 29, 2021?

iv. $2,460.00 for a psychological assessment, in a treatment plan dated October 4, 2021, and denied on October 18, 2021?

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

RESULT

4I find that:

i. The applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG;

ii. The applicant is not entitled to an NEB for the period in dispute;

iii. The applicant is not entitled to the treatment plan in dispute; and

iv. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

5The MIG establishes a framework available to injured persons who sustain 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.”

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

7An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The respondent has paid $3,464.80 to date.

9The applicant submits that since the accident she has chronic pain arising from physical and psychological impairments, and her pre-existing knee pain prevents maximal recovery from the accident-related injuries. As a result, the applicant submits that she should be removed from the MIG. The respondent submits that the medical evidence and section 44 assessors demonstrate that the applicant did not suffer from a significant physical or psychological impairment as a result of the accident. Therefore, the respondent submits that the applicant failed to meet her onus to demonstrate that her accident related impairments fall outside of the MIG.

The applicant does not suffer physical injuries that warrant removal from the MIG

10I find that the evidence establishes that the applicant’s physical injuries fall within the definition of minor injury under s.3(1) of the Schedule.

11The applicant provides limited submissions as to how her accident-related physical injuries fall outside of the MIG. The applicant relies on the clinical notes and records (CNRs) of family physician Dr. Usama Sarsam and the OCF-3 Disability Certificate of Mr. Bill Nikols, chiropractor. On September 10, 2021, the applicant saw Dr. Usama Sarsam with self-reports of low energy, stiffness and pain. The CNRs of Dr. Sarsam do not provide a diagnosis but indicate that there were no tender spots on exam, and prescribed naproxen and baclofen. The CNRs from appointments on September 20 and 30, 2021 do not mention the accident or any pain. On March 4, 2022, Dr. Sarsam referred the applicant for x-rays of her back and knee and on March 11, 2022, Dr. Sarsam informed the applicant that her x-rays revealed no abnormalities. The OCF-3 of Mr. Nikols lists the applicant’s injuries as sprains and strains and yet indicates that the applicant suffers a complete inability to carry on a normal life due to pain and apprehension.

12The respondent submits that the applicant has failed to prove on a balance of probabilities that she sustained a physical injury as a result of the accident that would remove her from the MIG. The respondent relies on the section 44 physiatry assessment report of Dr. Chris Boulias, physiatrist dated August 23, 2022, and the section 44 neurological assessment report of Dr. Robert Yufe, neurologist dated August 23, 2022. Dr. Boulias observed that the applicant was asymptomatic during the assessment and opined that the applicant sustained soft issue injuries. Dr. Yufe opined that there were no neurological injuries caused by the accident, highlighting the absence of head injury or a loss of consciousness. Both Dr. Bouilas and Dr. Yufe concluded that the applicant’s injuries fell within the MIG.

13After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers physical injuries that would remove her from the MIG. I am persuaded by the evidence of Dr. Bouilas, Dr. Yufe and Mr. Nikols that supports that the applicant sustained minor soft tissue injuries, which fall squarely within the s. 3 definition of minor injury under the Schedule. Lastly, the CNRs of Dr. Sarsam do not provide a diagnosis of the applicant’s injuries further I note that there is no evidence that the applicant was referred to any medical specialists.

14As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.

The applicant does not suffer psychological injuries that warrant removal from the MIG

15I find that the applicant has not provided sufficient evidence to demonstrate that her psychological impairments justify treatment beyond the MIG.

16An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

17In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

18The applicant submits that as a result of the accident she experiences psychological distress, including driving phobia, anxiety, low sex drive, irritability and sleep disturbances. I find these submissions to be unsubstantiated by the evidence.

19The applicant relies on the telephone psychological assessment of Ms. Lital Grinberg, psychotherapist dated October 27, 2021. The applicant self-reported her impairments, and Ms. Grinberg opined that she met the DSM-5 diagnostic criteria for Adjustment Disorder, Unspecified.

20The respondent submits that the applicant has not demonstrated that she has sustained a psychological impairment as a direct result of the accident. The respondent argues that the psychological assessment of Ms. Grinberg should be given little weight as the determination was made based on self-reports by the applicant over the telephone, furthermore it is inconsistent with the applicant’s entire medical record which demonstrates no indication of a psychological complaint or diagnosis.

21The respondent also relies on the s.44 psychological assessment report of Dr. Tatiana Dumitrascu, psychologist dated August 23, 2022. During the assessment the applicant reported that her mood returned to normal, she was content, and her social life was unaffected since the accident, she indicated that her main concern for anxiety was her family members are in Afghanistan. Dr. Dumitrascu found the applicant did not meet the DSM-5 criteria for a psychological disorder as a result of the accident.

22I am not persuaded by the evidence that the applicant has a psychological impairment as a result of the accident. I am persuaded by the determination of Dr. Dumitrascu, over that of Ms. Grinberg. While I respect the conclusions of Ms. Grinberg, I note the applicant was not assessed in person, the psychological impairments were self-reported and I find that there is no contemporaneous medical documentation from any of the applicant’s treating physicians to support the diagnosis in the report. The CNRs of Dr. Sarsam, make no reference to psychological concerns, complaints or a diagnosis.

23I am not persuaded that the applicant provided any evidence to demonstrate a psychological impairment. Therefore, I find that the applicant has not met her evidentiary onus to demonstrate that she suffers from a psychological impairment that would warrant her removal from the MIG as a result of the accident.

Does the applicant suffer from a pre-existing condition that warrants the removal from the MIG?

24Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

25The applicant references pre-existing knee pain, relying on the CNRs of Dr. Sarsam that diagnosed the pain as chondromalacia patella. The applicant did not submit any further medical evidence to suggest that the pre-existing knee pain would prevent maximal recovery from the accident-related injuries.

26The respondent relies on the opinion of Dr. Boulias, who observed the applicant to be asymptomatic during the assessment and found no compelling evidence of a pre-existing medical condition preventing maximal medical recovery within the MIG guidelines.

27I am persuaded by the respondent. Although I may accept that the applicant has knee pain, I am persuaded by the determination of Dr. Boulias that there is nothing that would prevent the applicant from achieving maximal recovery within the MIG. Furthermore, no medical records that were submitted reveal that the applicant has a pre-existing medical condition that would prevent the applicant from recovery within the MIG.

28Therefore, I am not persuaded that the applicant has established how she would be prevented from reaching maximum recovery within the MIG as a result of any pre-existing impairments.

Does the applicant suffer chronic pain that warrants the removal from the MIG?

29I find that the applicant has not provided sufficient evidence to demonstrate that she developed or suffers from chronic pain with functional impairment resulting from the accident that warrants removal from the MIG.

30For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality.

31Chronic pain must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability. The applicant is not specific as to what physical injuries are chronic but submits that because they are not minor in nature, she should be exempt from the MIG.

32The applicant references chronic back pain and knee pain in her submissions that since the accident have prevented her from resuming social and leisure activities. The applicant does not submit a chronic pain diagnosis.

33The respondent contends that the applicant suffered predominately soft tissue injures, I agree with the respondent, and find that ongoing pain is insufficient grounds to take the applicant out of the MIG as it must be accompanied by functional impairment.

34The respondent referenced the American Medical Association Guides (“AMA Guides”). The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that one can be diagnosed with chronic pain when they satisfy three or more of the six criteria. The respondent submits that the applicant has not provided evidence of prescription drug usage beyond the recommended duration, nor evidence of abuse of or dependence on any prescription drugs or other substances, according to prescription summary the applicant purchased baclofen once in September 2021, and naproxen once in November 2021. There is no evidence of any excessive reliance on healthcare providers, to date there have been a total of 11 accident-related visits to a treating doctor, with the last one occurring on October 20, 2022. The remaining CNRs reveal complaints not related to the accident, and all rehabilitative treatment ceased as of September 2022. The applicant has not provided evidence to suggest that she has suffered from secondary physical deconditioning due to disuse or fear-avoidance of physical activity due to pain, since the accident the applicant has remained independent with personal care, childcare and housekeeping and has resumed driving. There is no evidence, beyond the applicant’s self-reporting that she developed psychosocial issues nor suffered a withdrawal from social milieu as a direct result of the accident. There is no objective medical evidence to indicate a psychological complaint or a diagnosis directly attributable to the accident.

35I am not persuaded that the applicant demonstrated that her accident-related soft tissue injuries, confirmed by the medical evidence, had a detrimental impact on her functionality. Furthermore, the applicant has no diagnosis of chronic pain. I am persuaded by the respondent’s submissions that for chronic pain to be more than just sequelae from soft tissue injuries it must be such a severity that it causes suffering and distress accompanied by functional impairment or disability. There is a lack of evidence advanced by the applicant to suggest that her injuries were severe enough to cause distress accompanied by functional impairment or disability.

36I find that the applicant has not met her onus to prove she has chronic pain with functional impairment that would remove her from the MIG. In addition, I find that her ongoing physical pain has not caused functional limitations.

Non-Earner Benefit (“NEB”)

37The test for entitlement to an NEB is set out in s. 12(1) of the Schedule. It states that an applicant must prove that he or she suffers from a complete inability to carry on a normal life as a result of, and within 104 weeks of, an accident.

38Section 3(7)(a) of the Schedule states that a person suffers from “a complete inability to carry on a normal life” if, as a result of an accident, the person sustains an impairment that continuously prevents that person from engaging in substantially all of the activities in which that person ordinarily engaged before the accident.

39The test for NEB involves a consideration of the applicant’s pre- and post-accident activities, as set forth in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391. It is the burden of the applicant to demonstrate that her life circumstances have changed significantly enough to continuously prevent her from substantially engaging in the activities that she did before the accident.

40It is the applicant’s position that the CNRs of Dr. Usama indicate that the applicant has chronic pain and a knee injury that has restricted her daily function, and therefore suffers a complete inability to carry on a normal life. Despite this reliance, I note that the CNRs of Dr. Usama do not report any changes to her pre-accident activities.

41The respondent submits that the evidence presented along with the applicant’s self-reporting indicates that she can still participate in substantially all of her pre-accident activities. The respondent relies on the section 44 report of Dr. Dumitrascu, where it reported that the applicant is still independent in housekeeping, personal care, childcare, and continues to drive and socialize with friends. Furthermore, the section 44 report of Dr. Boulias concluded that the applicant can perform all meaningful activities of daily living, and the applicant reported that there is no pre-accident activity that she cannot do. Lastly, the section 44 report of Dr. Yufe found no objective neurological findings to substantiate a disability, limitation, or restriction with regard to activities of a normal life.

42I find that the evidence indicates that within the 104 weeks following the accident, the applicant has been able to engage in all pre-incident activities without significant limitations. I am persuaded by the respondent’s reliance medical evidence from a psychological, musculoskeletal, neurological perspective. As a result I find that the applicant has not met her onus and did not provide persuasive evidence to support her claim for NEBs as she has not demonstrated a complete inability to carry on a normal life as a result of the accident-related impairments.

43The applicant is not entitled to the disputed treatment plan because I have found the applicant is subject to the MIG and the plan proposes treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

Interest

44Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

45The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to an NEB for the period in dispute;

iii. The applicant is not entitled to the treatment plan is dispute; and

iv. The applicant is not entitled to interest.