Citation: Fahim v. Pembridge Insurance Company, 2024 ONLAT 22-005954/AABS

Licence Appeal Tribunal File Number: 22-005954/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:

Ramin Fahim

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Camille Narine-Ramrattan, Paralegal

For the Respondent:

Kristen Slaney, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ramin Fahim, the applicant, was involved in an automobile accident on May 14, 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, Pembridge 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 (“MIG”) limit?

ii. Is the applicant entitled to $2,681.82 for physiotherapy services, proposed by Studio Athletica Sports Medicine Centre in a treatment plan/OCF-18 (“OCF-18”) dated March 29, 2021?

iii. Is the applicant entitled to $2,564.80 for physiotherapy services, proposed by Midland Wellness Centre in an OCF-18 treatment plan dated November 24, 2020?

iv. Is the applicant entitled to $2,860.40 for physiotherapy services, proposed by Midland Wellness Centre in an OCF-18 dated September 8, 2020?

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

RESULT

3I find that:

i. The applicant has failed to demonstrate that he suffers from accident-related injuries outside of the minor injury definition in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.

ii. The applicant is not entitled to the OCF-18s in dispute or interest.

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 accident-related injuries that warrant removal from the MIG

6The applicant submits that as a result of the subject accident, he has sustained serious impairments that cannot be treated within the MIG. These include intense headaches, neck, shoulder, mid and lower back pain, left knee and leg pain. The applicant also argues that the subject accident exacerbated his pre-accident psychological impairments and lower/mid back pain further warranting his removal from the MIG.

7The respondent contends that the applicant has not established pre-existing impairments that would prevent recovery within the MIG. It further argues that the applicant has not established non-minor impairments as a result of the subject May 14, 2020 accident. Rather, the respondent submits that the applicant’s ongoing symptoms and impairments began only after a subsequent accident, on November 17, 2020.

The applicant has not established pre-existing impairments that warrant removal from the MIG

8The applicant submits that the accident aggravated his pre-existing back pain and psychological impairments including ADHD, anxiety and depression. He relies on the clinical notes and records (“CNRs”) of his family physician Dr. Joan Jeu.

9I agree with the applicant that the pre-accident CNRs of Dr. Jeu establish that in the years before the accident the applicant was diagnosed with ADHD and at times reported depressive and stress symptoms. However, the applicant does not direct me to any specific CNR entries post-accident where he continued to report psychological symptoms or impairments other than a reference to his ADHD in October 2021 more than a year post-accident. There is no reference to any accident-related psychological impairment, nor does the applicant discuss or lead evidence as to how the subject accident impacted his ADHD or pre-accident psychological symptoms.

10With respect to the applicant’s pre-accident back pain, I note a CNR entry of Dr. Jeu on August 29, 2017 where the applicant reported lower back pain and numbness in his leg after lifting suitcases. At the time the applicant reported to Dr. Jeu that this back pain had stemmed from a 2015 motor vehicle accident. However, the applicant does not direct me to any CNR entries where he continued to report such pain between August 2017 and the date of the subject accident.

11Moreover, the applicant has not met the additional requirement under s. 18(2) of the Schedule. Namely, the applicant has not provided sufficient medical evidence from a treating medical practitioner that acknowledges that these pre-existing injuries impacted on his ability to achieve maximum medical recovery under the MIG. The applicant has not directed me to any opinion from Dr. Jeu or any other treating medical practitioner where they opined or discussed how the applicant’s pre-accident conditions impacted on his ability to recover within the confines of the MIG.

Physical impairments

12I do not find that the applicant has established accident-related physical impairments warranting removal from the MIG. The applicant’s back, neck, shoulder and left knee impairments have consistently been found by Dr. Jeu to be strain and sprain-type injuries. Such impairments fall within the definition of a minor injury.

13The applicant points to a February 3, 2021 MRI which revealed slight L3-4 and L4-5 retrolisthesis, which “may indicate underlying degenerative disc change”. A subsequent February 22, 2021 MRI of the lumbar spine did not indicate any abnormality. He further cites an August 24, 2021 X-ray of the cervical spine which found mild degenerative changes to C4 and C5. However, the applicant does not direct me to any medical opinion that these potential degenerative disc changes were linked to the subject accident, rather than being progressive in nature.

The applicant has not established accident-related chronic pain

14The bulk of the applicant’s submissions and the medical evidence relate to his ongoing pain reports. I agree with the applicant that Dr. Jeu’s CNRs show ongoing reports of pain in the low, mid and upper back, neck, shoulder, left knee, leg and foot in the years post-accident. However, I do not find that the applicant has led sufficient evidence to establish that the ongoing pain reports were as a result of the subject accident.

15After the subject accident, the applicant was involved in two subsequent accidents, on November 17, 2020 and March 24, 2021. He did not attend the hospital for any of the three accidents. Although the applicant submits that it was the subject accident on May 14, 2020 which caused his lower, mid and upper back, shoulders, neck left knee and pain, I agree with the respondent that this is not supported by the medical record.

16The CNRs of Dr. Jeu indicate that the applicant first reported the accident to his family physician more than a month later, on June 26, 2020. Although he did report pain in the shoulders, neck, mid and lower back and knees and advised that he had begun physiotherapy, his main complaint related to headaches. The only diagnosis that day was “Headache – severe”. Dr. Jeu advised the applicant to go to the emergency room for his headaches. However, there are no other entries in the six months post-accident where the applicant continued to make any pain reports.

17The next CNR entry is on November 18, 2020, the day after the November 17, 2020 accident. The applicant reported that he had been travelling on the highway in the left lane when he was abruptly cut off. He hit that vehicle, which hit the wall and then hit his vehicle again. Unlike in the June 26, 2020 CNR entry, on November 17, 2020 Dr. Jeu diagnosed the applicant with cervical, thoracic, lumbar, left shoulder, elbow and thumb strain and headaches. The CNR entry also noted that the applicant would be off work for two weeks. On January 12, 2021 the applicant reported that he still was not able to turn to work. In the period after the November 18, 2020 accident, the applicant had regular appointments with Dr. Jeu, often once or twice a month. This can be contrasted with the subject May 14, 2020 accident, where there were no follow-up appointments post-accident, until the subsequent accident six months later.

18Moreover, prescription pain medication was not prescribed after the subject accident. It was only soon after the November 17, 2020 accident that the applicant reported that Advil was “not working” and Dr. Jeu prescribed Toradol for a brief period. Finally, I note that there are no reports that the applicant was unable to work after the subject accident and in the June 26, 2020 entry, it was expressly noted that the appointment was not in person as the applicant was working. It was only after the November 17, 2020 accident the applicant reported not being able to return to work.

19The applicant had attended physiotherapy for a period of time after the subject May 14, 2020 accident, and subsequently switched clinics. However, the applicant has not provided any records from his treating clinics. This information would have been helpful when considering the extent of his injuries and reported pain complaints after the May 14, 2020 subject accident, versus the subsequent accidents.

20When considering the medical record before me, I find that the applicant has not led sufficient evidence to establish that the subject accident caused his ongoing pain complaints. As such, the applicant has not established accident-related chronic pain warranting removal from the MIG.

21The applicant confirmed that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that he should be removed from the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Interest

22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.

ORDER

23For the reasons outlined above, I find that:

i. The applicant remains in the MIG; and

ii. The applicant is not entitled the treatment plans in dispute, or interest.

24The application is dismissed.