Citation: Kamal v. Wawanesa Insurance, 2024 ONLAT 22-002170/AABS

Licence Appeal Tribunal File Number: 22-002170/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:

Arshad Kamal

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Lisa Yong

APPEARANCES:

For the Applicant:

Bianca Marinescu, Paralegal

For the Respondent:

James Schmidt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Arshad Kamal, the applicant, was involved in an automobile accident on October 2, 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, Wawanesa 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 (“MIG”) limit?

ii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by A & B Medical Assessments Inc. in a treatment plan/OCF-18 (“plan”) dated February 5, 2021?

iii. Is the applicant entitled to $2,026.55 for physiotherapy services, proposed by MacKenzie Medical Rehabilitation Centre in a plan dated February 8, 2021?

iv. Is the applicant entitled to $2,635.40 for physiotherapy services, proposed by MacKenzie Medical Rehabilitation Centre in a plan dated March 17, 2021?

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

RESULT

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

4If the MIG has not been exhausted, then pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits if they were already incurred under the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

ANALYSIS

Minor Injury Guideline

5Section 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.”

6An 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 from any accident-related minor injury 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.

7The applicant submits that he should be removed from the MIG on the grounds that his accident-related injuries are not a minor injury and that suffers a psychological impairment resulting from the accident.

The applicant suffered a predominantly minor physical injury that does not warrant removal from the MIG

8I find that the evidence establishes that the applicant suffered a predominantly minor injury as defined by the Schedule and does not warrant removal from the MIG.

9The applicant submits that he suffered injuries to his neck, back, and pain in his left thigh and left leg, as a result of the accident, that warrant removal from the MIG. He relies on the clinical notes and records (“CNR”) of Dr. Wajahat Rafiqi, family physician, and an OCF-3 dated October 30, 2021.

10The respondent submits that the applicant has failed to provide sufficient evidence to prove that he sustained accident-related injuries that would warrant removal from the MIG. It submits that the only accident-related injury is to the applicant’s neck, and all other complaints to other areas of the applicant’s body are unrelated to the accident.

11I reviewed the evidence, and I am not persuaded that the applicant sustained all the listed injuries as stated in the applicant’s OCF-3 as a result of the accident, except to his neck. On October 5, 2020, three days after the accident, Dr. Rafiqi diagnosed the applicant with a whiplash injury of the neck. Despite Dr. Rafiqi’s request for an x-ray of the applicant’s neck, no diagnostic result was tendered into evidence. The CNRs do not indicate that Dr. Rafiqi reviewed any x-ray results of the applicant’s neck and did not follow up with the applicant to undergo another x-ray of the same, and the applicant did not make any further complaints about his neck pain. This is evidence that any injuries to the applicant’s neck may have been resolved shortly after the accident. During this appointment, the applicant did not make any accident-related complaints about any other areas of his body.

12I do not find that the applicant’s degenerative changes in his spine were caused or connected to the subject accident. The applicant relies on the diagnostic results dated October 16, 2020, of his cervical, lumbar and thoracic spine, which revealed that he had multilevel degenerative changes. However, the results confirmed that there is no swelling, no lesions, no fractures with normal intervertebral spaces and normal alignment. I note that the applicant underwent a similar x-ray on June 20, 2018, which revealed that the applicant already had degenerative changes in his lumbar and thoracic spine. Dr. Rafiqi never made any findings or opined that the degenerative changes in the applicant’s spine were a cause or connected to the subject accident. Hence, I do not find that the degenerative changes in his spine are related to the accident.

13I also find that the applicant’s alleged pain in his back, left leg and left thigh are unrelated to the subject accident. On August 21, 2021, ten months post-accident, Dr. Rafiqi reported the applicant complained of pain in his back “since a few days”, left leg and left thigh for the first time. The applicant did not mention about the accident during this appointment. I agree with the respondent that the applicant self-reported back pain began “since a few days” is evidence that it did not originate as a result of the subject accident. Further, Dr. Rafiqi did not state that the applicant’s back, left leg and left thigh pain are related to the accident.

14Given the lack of compelling and contemporaneous evidence of any ongoing complaints of pain due to the accident, I am not persuaded that the applicant suffered anything but a minor injury to his neck at most, which is within the definition of a minor injury as defined in the Schedule.

15Hence, I find the applicant’s accident-related physical injury is a predominantly minor injury that does not warrant removal from the MIG.

The applicant does not suffer a psychological impairment that warrants removal from the MIG

16I find that the applicant has not provided sufficient evidence to demonstrate that he suffers from psychological impairment that justifies removal from the MIG.

17The applicant may be removed from the MIG if he establishes, on the balance of probabilities, that he sustained a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of a minor injury as defined in the Schedule.

18The applicant relies on a s. 25 psychological assessment report dated March 8, 2021, by Dr. Bita Sharifzadeh, psychologist, who diagnosed the applicant with “other specified trauma and stressor-related disorder, moderate range”.

19I agree with the respondent’s submissions that there is no compelling evidence that the applicant suffers from a psychological impairment as a result of the accident.

20I begin by noting that the evidence does not show the applicant ever made any post-accident psychological complaints to Dr. Rafiqi.

21The OCF-3 dated October 30, 2021, was completed by Dr. Samuel Johnson, chiropractor, who stated that the applicant suffered a number of physical injuries as well as “sleep disorders, anxiety disorders, irritability, anger, nervousness” as a result of the accident. However, I am not persuaded that Dr. Johnson has the medical expertise in the area of psychology to make any psychological diagnoses. As mentioned, no psychological symptoms or complaints were recorded in Dr. Rafiqi’s post-accident CNRs and he did not refer the applicant to see a psychologist post-accident. Therefore, I assigned little weight to this OCF-3.

22Further, I do not find Dr. Sharifzadeh’s s. 25 psychological assessment report to be persuasive as it is not in line with the rest of the medical evidence. Dr. Sharifzadeh reported that the applicant experiences non-restorative sleep issues, emotional distress, nightmares and heightened anxiety. However, as noted above, the applicant did not make any post-accident psychological complaints to Dr. Rafiqi in three years post-accident.

23The applicant did not provide any other compelling and contemporaneous evidence from any other treating providers of consistent reports of any ongoing psychological symptoms after the accident.

24For the above reasons, I find that the applicant has not established that he suffers from a psychological impairment that warrant removal from the MIG.

25Neither party confirmed whether the MIG has been exhausted.

26Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits incurred under the MIG are deemed reasonable and necessary.

27Accordingly, if the MIG limit has not been exhausted as at the date of this decision, the applicant is entitled to the benefits if they were already incurred under the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

ORDER

28The applicant’s injuries are a predominantly minor injury and therefore subject to the treatment within the $3,500.00 funding limit of the MIG.

29If the MIG has not been exhausted, then pursuant to s. 40(8) of the Schedule, the applicant is entitled to the benefits if they were already incurred under the MIG, up to the remaining amount of the MIG limit, plus interest in accordance with s. 51 of the Schedule.

30The application is dismissed.