Licence Appeal Tribunal File Number: 22-002886/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:
Ather Tayyib
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Ather Tayyib, Applicant
Marc Golding, Paralegal
For the Respondent:
Dran Kiren, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ather Tayyib, the applicant, was involved in an automobile accident on July 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, Sonnet Insurance Company, 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 limit?
ii. Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from August 18, 2021 to July 21, 2022?
iii. Is the applicant entitled to $4,437.00 for physiotherapy services proposed by Physiomed Milton Inc in a treatment plan/OCF-18 dated August 13, 2020?
iv. Is the applicant entitled to $2,486.00 for a psychological assessment proposed by A + B Medical Assessments in a treatment plan/OCF-18 (“plan”) dated January 14, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
4The applicant is not entitled to an NEB, the treatment plans in dispute, nor interest.
ANALYSIS
Minor Injury Guideline (MIG)
5The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
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, strain, 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 fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are 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.
8The applicant submits that his injuries are not minor because he sustained chronic pain and psychological impairments from the accident.
Chronic Pain
9According to the applicant, he has chronic pain as a result of the accident. He relies on his Application for Accident Benefits form (OCF-1), his Disability Certificate (OCF-3), and the clinical notes of Dr. Hoang Nguyen, his family doctor, which document his ongoing pain complains.
10The respondent submits that the medical evidence submitted by the applicant is not substantial enough to establish that he has chronic pain.
11The applicant’s OCF-1, dated July 19, 2020 was completed by Dr. Adil Siddiqui, family physician. The OCF-1 documents pain complaints, all of them listed as “severe pain,” in the applicant’s neck, collar bone, back, legs, knees, right ankle, right foot, along with severe headaches. The applicant submits that these injuries remove him from the MIG.
12Nitin Nair, physiotherapist, completed an OCF-3 on August 17, 2020 which documents pain in his back, neck, leg joints, knees, elbows, collar bone, as well as headaches.
13The applicant also cites the clinical notes of Dr. Hoang Nguyen, his family doctor. However, these notes are illegible.
14The OCF-1 and OCF-3 show that he had numerous pain complaints soon after the accident. However, this alone does not establish that he has ongoing pain complaints. The subsequent evidence which the applicant has asked me to review, the family doctor notes, are illegible and cannot be used to show that he continues to experience pain caused by the accident. As such, the applicant has not satisfied me that he has chronic pain.
15Additionally, as pointed out by the respondent, ongoing pain complaints alone do not warrant treatment outside the MIG. The respondent cites Rukasadbibi v. Economical Mutual Insurance Company, 2021 CanLII 40798 where the Tribunal noted that:
…pain symptoms are contemplated by the Minor Injury Guideline framework as ‘clinically associated sequelae’ of minor injuries. As such, pain symptoms often fall within the definition of a minor injury and [are] subject to treatment within the limits of the Minor Injury guideline.
16The Tribunal has long held that removal from the MIG would require ongoing pain and impairments are more than just sequelae as noted in 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) at paragraph 23. The applicant makes no submissions on impairments caused by pain. For this reason as well, I find that the applicant has not established that he should be removed from the MIG on this basis.
Psychological Injuries
17The applicant relies on the Psychological Assessment Report dated March 1, 2021 by Hanieh Toussi, health practitioner, and supervised by Dr. Bita Sharifzadeh, psychologist, to establish that he sustained a psychological injury in the accident. The applicant submits that this report is more reliable than the Insurer’s Examination (“IE”) Report dated March 16, 2021 by Dr. Marc Mandel, psychologist. Dr. Mandel concluded that the applicant has no diagnosable psychological condition. According to the applicant, Dr. Mandel did not give sufficient weight to the psychological symptoms reported by the applicant.
18The respondent submits that the report supervised by Dr. Sharifzadeh is an isolated single assessment based on the applicant’s self reporting that is unsupported or corroborated by other medical evidence. The respondent submits that the IE should be given more weight because it is consistent with the evidentiary record which has no reported psychological complaints.
19I disagree with the respondent’s statement that there is no record of any psychological complaints. The applicant complains of anxiety in both the OCF-1 and OCF-3. Even so, these are brief statements given by the applicant soon after accident to health care providers who are not qualified to diagnose psychological disorders, and as such, are of limited evidentiary value.
20Dr. Bita Sharifzadeh is qualified to diagnose psychological disorders, but does not do so in the report. The report documents the applicant’s own account of his symptoms but provides no analysis or opinion on whether he has a psychological disorder.
21In the IE, Dr. Mandel opines that the applicant reports psychological symptoms but does not suffer from a diagnosable psychological condition. He notes the following inconsistencies:
i. The applicant reports high levels of pain but demonstrates no overt pain related behaviours.
ii. The applicant reports having stress, anxiety when driving, flashbacks, and nightmares whenever he sleeps yet recalls the details of the accident in a matter-of-fact manner with no display of distress, tension, or anxiety.
iii. The psychometric test the Personality Assessment Inventory (PAI) suggests he may not have answered in a completely forthright manner and exaggerated certain problems.
iv. The Structured Inventory of Malingered Symptoms (SIMS), a psychometric test, “revealed a pattern of responding that falls far beyond the acceptable standard for the normative sample. His total score was more than twice beyond the acceptable threshold, indicating the possibility of symptom magnification in certain areas. He endorsed elevated levels on five of five specific scales, including psychosis, neurologic impairment, amnestic disorders, low intelligence and affective disorders, indicating that care must be taken in interpreting complaints of these types by [the applicant].”
v. The applicant’s family doctor has not made any referrals for psychological or psychiatric intervention.
22Dr. Mandel concludes “that there is a lack of consistent objective information present that would support DSM V diagnosis and or suggest that [the applicant] suffers clinically significant symptoms that would indicate a substantial psychological impairment or disability as a direct result of the subject motor vehicle accident at this time.” Dr. Mandel further opines that, from a psychological perspective, the applicant has no limitations or restrictions that are objectively indicated.
23The IE is more persuasive than the report of Dr. Sharifzadeh because it does more than merely list the symptoms reported by the applicant. Dr. Mandel analyzes those symptoms in light of the applicant’s observed behaviour, psychometric test results, and other factors. He also provides a conclusion that explains why the applicant does not have a diagnosable psychological disorder. Dr. Sharifzadeh provides no such analysis. For these reasons, I prefer the report of Dr. Mandel and find that the applicant has not established that he has a psychological impairment caused by the accident.
24Having found that the applicant does not have chronic pain, nor a psychological impairment, I further find that his injuries are predominantly minor as defined in s. 3 of the Schedule.
Non-Earner Benefit (NEB)
25Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
26The applicant mentions that the OCF-3 indicates that he has a complete inability to carry a normal life. However, the applicant makes no submissions on his pre- and post-accident activities. As such, there is an insufficient basis to find that he is entitled to an NEB.
27As I have found the applicant’s injuries fall within the MIG, it is unnecessary to determine whether the treatment plans are reasonable and necessary. The applicant is not entitled to treatment beyond the $3,500 MIG limit.
Interest
28As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
29The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
30The applicant is not entitled to an NEB, the treatment plans in dispute, nor interest.
Released: April 11, 2024
Harry Adamidis
Adjudicator