Citation: Asghari v. Economical Insurance Company, 2024 ONLAT 22-005883/AABS

Licence Appeal Tribunal File Number: 22-005883/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:

Afsaneh Asghari

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Neda Nazari-Pruden, Counsel

For the Respondent:

Jessica Telfer, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Afsaneh Asghari, the applicant, was involved in an automobile accident on January 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, Economical 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 (“MIG”)?

ii. Is the applicant entitled to a medical benefit in the amount of $2,044.50 for chiropractic services, proposed in a treatment plan (“OCF-18”) dated October 9, 2021?

iii. Is the applicant entitled to a medical benefit in the amount of $1,995.32 for psychological services, proposed in an OCF-18 dated October 26, 2021?

iv. Is the applicant entitled to a medical benefit in the amount of $1,159.10 for chiropractic services, proposed in an OCF-18 dated May 19, 2021?

v. Is the applicant entitled to a medical benefit in the amount of $500 for physiotherapy services, submitted on a claim form (“OCF-6”) dated May 4, 2021?

vi. Is the applicant entitled to a medical benefit in the amount of $54.87 for medication, submitted on an OCF-6 dated March 3, 2020?

vii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. The applicant has not met her onus to prove that her accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision once incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to an award.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

5An insured person 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.

The applicant has not established injuries that warrant removal from the MIG

6The applicant submits that as a result of the accident, she has sustained serious physical and psychological injuries. She contends that the subject accident aggravated her pre-accident hip and lower back pain to the point that she was forced to undergo hip replacement surgery on November 19, 2020. Despite surgery, the applicant submits that she still suffers from ongoing pain. In addition to physical impairments, the applicant submits that as a result of the accident she has developed psychological impairments including depressed mood, irritability, sleep issues, reduced concentration and memory, nightmares and anxiety.

7I find that the applicant has failed to provide sufficient medical evidence to establish that she suffers from non-minor accident-related impairments.

Physical Impairments

8With respect to the applicant’s hip replacement surgery in November 2020, I agree with the respondent that the medical evidence does not establish that the hip impairment was linked to the subject accident. Rather, the discharge diagnosis post-surgery was “osteoarthritis (OA) – right”. The reference to osteoarthritis is further found in the pre and post accident clinical notes and records (“CNRs”) of the applicant’s family physicians Dr. Nasghiri and Dr. Koupaei. The applicant has not directed me to any CNR entry where a medical practitioner opined that the accident caused or aggravated the hip impairment.

9I further find that the applicant has not established any accident-related physical impairments outside of soft-tissue sprains and strains, all of which fall under the definition of a “minor injury”. The applicant did not mention the accident to Dr. Koupaei for more than a year post-accident, despite attending for numerous medical appointments. The applicant reported ongoing pain in her back and hips to Dr. Koupaei, but did not mention the accident as the cause for these symptoms. The applicant does not direct me to any CNR entry where Dr. Koupaei diagnoses her with an accident-related physical impairment. The respondent’s GP assessor Dr. Platnick found that the applicant had sustained only cervical myofascial strain – whiplash associated disorder-I. The applicant has not led any medical evidence to refute these findings.

Chronic Pain

10In her submissions, the applicant argues that she has developed chronic pain warranting removal from the MIG. However, the applicant has not led sufficient evidence to establish that the accident has caused or aggravated pre-existing chronic pain. The medical record establishes that the applicant reported low back pain prior to the accident. A pre-accident lumbar MRI also indicated mild multi-level degenerative changes.

11A month after the accident the applicant attended Dr. Koupaei’s office and complained of low back pain “for a long time”. There was no mention of the accident at this visit, or any subsequent appointment, until a year later on May 11, 2021 where the applicant reported that the accident had aggravated her symptoms, but that she felt better. The applicant does not direct me to any other CNR entry where she identified the subject accident as a cause or aggravating factor for her back pain.

12The only additional pain complaint the applicant references in her submissions is neck pain. However, the applicant has not directed me to any CNR entry or medical opinion that these pain reports were found to be ongoing or severe. From my review, the CNRs of Dr. Koupaei do not contain references to ongoing neck complaints. The applicant further has not provided any submissions on whether she meets the AMA Guides 6^th^ Edition criteria for assessing chronic pain or specific submissions on her functional limitations. As such, I find that the applicant has failed to establish accident-related chronic pain.

Psychological Impairment

13Finally, I find that the applicant has not met her burden to prove an accident-related psychological impairment. Although the applicant attended Dr. Koupaei’s office numerous time post-accident, the applicant only made one mention of psychological symptoms. On May 30, 2020 the applicant reported “concern about a mood disorder”, sleep issues and feeling rushed. She did not reference the accident as a cause for these symptoms. The applicant does not direct me to any other CNR entry where psychological symptoms are discussed. I agree with the respondent that a single isolated CNR entry is not sufficient evidence of a psychological impairment warranting removal from the MIG. Particularly when the accident is not referenced as a cause of the symptoms.

14The applicant further relies on a psychological pre-screening report dated October 26, 2021. After a screening interview, Ms. Fariba Touyeh, Psych. Assoc. made a provisional diagnosis of Adjustment Disorder, but asserted that a full assessment would explore whether the applicant also met the criteria for PTSD, Major Depressive Disorder and Somatic Symptom Disorder. In contrast the respondent relies on a Psychological s. 44 assessment conducted by Dr. Rubenstein. Dr. Rubenstein found that the applicant did meet the criteria for any DSM-IV diagnosis and did not sustain an accident-related psychological impairment.

15When comparing the pre-screening report of Ms. Touyeh to the s. 44 assessment of Dr. Rubenstein, I prefer the respondent’s s. 44 report. In addition to the clinical interview, Dr. Rubenstein conducted diagnostic testing which found that the applicant scored below clinical magnitude in depression and anxiety. In contrast, Ms. Touyeh’s screening involved only a telephone interview. Moreover, Dr. Rubenstein’s findings of minimal psychological symptoms are consistent with the medical record, particularly the CNRs of the applicant’s family physician.

16As such, I find that the applicant has failed to establish accident-related impairments that warrant removal from the MIG.

17As I have found the applicant to be within the MIG, it is not necessary for me to consider the reasonableness and necessity of the treatment plans in dispute.

18The parties have not specified whether any amount is remaining under the MIG limit of $3,500.00. However, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision once incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

Award

19Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

20In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant’s request for an award is denied.

ORDER

21I find that:

i. The applicant has failed to establish that her accident-related impairments warrant removal from the MIG.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision once incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to an award.