Behdar v. Certas Home and Auto Insurance, 2024 CanLII 40999

Licence Appeal Tribunal

Citation: Behdar v. Certas Home and Auto Insurance, 2024 ONLAT 22-004406/AABS

Licence Appeal Tribunal File Number: 22-004406/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:

Mohammad Behdar

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR: Samia Makhamra

APPEARANCES:

For the Applicant: Kateryna Vlada, Counsel

For the Respondent: Kritika Behl, Counsel

Heard by written submissions

OVERVIEW

1Mohammad Behdar, the applicant, was involved in an automobile accident on September 19, 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, 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 Minor Injury Guideline limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from October 26, 2020 to September 19, 2022?

iii. Is the applicant entitled to $2,486.00 for psychological services, proposed by A&B Medical Assessments in a treatment plan/OCF-18 (“plan”) dated February 12, 2021?

iv. Is the applicant entitled to $1,046.10 for physiotherapy services, proposed by MacKenzie Medical Rehabilitation Centre Inc. in a plan dated March 25, 2021?

v. Is the applicant entitled to $876.88 for physiotherapy services, proposed by MacKenzie Medical Rehabilitation Centre Inc. in a plan dated May 21, 2021?

vi. Is the applicant entitled to $2,486.00 for an orthopaedic assessment, proposed by A&B Medical Assessments in a plan dated September 29, 2022?

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

RESULT

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

4The applicant is not entitled to a non-earner benefit.

5It is unnecessary for me to consider the reasonable and necessary nature of the treatment plans in dispute as they propose goods and services outside the MIG and the $3,500.00 funding limit.

6The applicant is not entitled to interest as there are no overdue benefits.

ANALYSIS

The applicant’s impairments fall within the MIG

7Section 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.”

8An 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.

9The evidence indicates that the applicant’s injuries fall within the MIG. There is no compelling evidence of a documented pre-existing condition that was exacerbated by the accident warranting treatment outside the MIG, and there is no compelling evidence that his injuries from the accident are not minor.

10A Treatment Confirmation Form (OCF-23) submitted by Cindy Jakeer, chiropractor, on the applicant’s behalf and dated November 9, 2020, proposed treatment under the MIG. The injuries listed include headache, a sprain and strain to the thoracic and lumbar spine, sprain and strain of other unspecified parts of lumbar spine and pelvis, depressive episodes, sleep disorder, irritability and anger. An OCF-3, submitted by Cindy Jakeer, dated October 26, 2020 listed similar injuries, however, this OCF-3 was subsequently withdrawn.

11Records from the applicant’s family doctor, Dr. Naheed Mirebrahimi, indicate that he suffered from Crohn’s disease and an injured back from a previous accident in February 2020, but there are no notes indicating that these previous conditions were exacerbated by the subject accident.

12In addition, there are no notes indicating physical or psychological complaints related to the subject accident. In fact, during a visit on October 19, 2020, Dr. Mirebrahimi refers to an accident that occurred the day before, that is, on October 18, 2020, and not the accident in question. Subsequent notes either do not relate to the subject accident (note of January 11, 2021) or make no mention of the accident (note of October 20, 2021). Additional imaging that was done and on which the applicant relies, does not relate to, or reference the subject accident either (x-ray of lumbar spine dated February 18, 2021).

13Further, there is no evidence of a psychological impairment or chronic pain from the subject accident. The applicant relies on a psychological assessment by Dr. Bita Sharifzadeh dated April 21, 2021. Dr. Sharifzadeh noted the applicant’s sleep problems, disrupted mood, social withdrawal, stress, anxiety, and fear related to being in a car. Dr. Sharifzadeh diagnosed the applicant with post-traumatic stress disorder. However, there is no other evidence, no other treatment, and no other notes from the family doctor indicating a psychological impairment that would corroborate the report of Dr. Sharifzadeh.

14There is also no evidence of chronic pain. Notably, during a visit on January 7, 2022, Dr. Mirebrahimi declined to refer the applicant to a pain clinic. In addition to complaints of back pain, the applicant relies on an MRI examination on December 6, 2021 which revealed disc bulges mostly in areas of the lumbar spine (L3-L4, L4-L5, L-S1). The applicant’s reliance on imaging and complaints to Dr. Mirebrahimi is unfounded because there is mention of another accident in October 2020, and no notes or evidence of chronic pain.

15In summary, while the applicant submits his pre-accident injuries and injuries from the subject accident should remove him from the MIG, the evidence I reviewed suggests minor injuries and does not support his submissions. Therefore, I find that the applicant’s injuries from the subject accident are minor in nature and subject to the MIG.

The applicant is not entitled to a non-earner benefit (NEB)

16Section 12(1) of the Schedule 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.

17Section 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 Mut. Ins. Co., 2009 ONCA 391 (the Heath test), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

18I find that the applicant does not meet the test for an NEB as there is no compelling evidence to support this claim. He worked as an Uber driver at the time of the accident and returned to work shortly after. This is clear from the OCF-1 dated November 20, 2020, which states that he worked as an Uber driver since 2019, and a note from his psychological assessment with Dr. Sharifzadeh, stating that he returned to his work as an Uber driver shortly after the accident.

19Notably, there is no evidence of changes in the applicant’s life post-accident to suggest eligibility for an NEB. In other words, he has not provided a breakdown of his pre- v. post-accident activities, the amount of time to do these activities, if any, to satisfy the Heath test.

20The applicant submits that he is suffering a substantial inability to carry on a normal life due to ongoing chronic pain that impairs many of his abilities, such as walking, standing, sitting, lifting and sleeping. I disagree. As I said earlier in this decision, there is no evidence to suggest that the applicant suffers from chronic pain as a result of the subject accident.

21With no evidence of changes to the applicant’s abilities after the subject accident, the applicant has not established that he suffers a complete inability to carry on a normal life that would entitle him to an NEB.

The applicant is not entitled to the treatment plans in dispute

22It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans for psychological services, physiotherapy services and orthopaedic assessment as they propose goods and services outside the MIG and the $3,500.00 funding limit.

ORDER

23For the reasons outlined above, I order the following:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
2. The applicant is not entitled to a non-earner benefit.
3. It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.
4. The applicant is not entitled to interest as there are no overdue benefits.