Citation: Muhumed v. Economical Insurance Company, 2024 ONLAT 22-006383/AABS

Licence Appeal Tribunal File Number: 22-006383/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:

Abdiaziz Muhumed

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Applicant:

Carlyle Mazankowski, Counsel

For the Respondent:

Kevin So, Counsel

Heard by way of written submissions

OVERVIEW

1Abdiaziz Muhumed, the applicant, was involved in an automobile accident on February 9, 2021, 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?

ii. Is the applicant entitled to an income replacement benefit in the amount of $394.57 per week from February 9, 2021 to July 16, 2021?

iii. Is the applicant entitled to $2,645.50 for physiotherapy services, proposed by Sool Therapy Inc. in a treatment plan/OCF-18 ("plan") submitted June 17, 2021 and denied June 29, 2021?

iv. Is the applicant entitled to $1,291.25 for physiotherapy services, proposed by Sool Therapy Inc. in a plan submitted March 2, 2021 and denied March 11, 2021?

v. Is the applicant entitled to $2,030.50 for physiotherapy services, proposed by Sool Therapy Inc. in a plan submitted February 24, 2022 and denied March 9, 2022?

vi. Is the applicant entitled to $2,179.22 for a psychological assessment, proposed by Community Health and Counselling Services Inc. in plan submitted February 3, 2022 and denied February 17, 2021?

vii. Is the applicant entitled to $2,680.00 for an orthopaedic assessment, proposed by Complete Rehab Centre in plan submitted September 7, 2021 and denied October 7, 2021?

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

RESULT

3The applicant's injuries from the accident fall within the Minor Injury Guideline ("MIG"), therefore the limit of his entitlement to medical and rehabilitation benefits is $3,500.00.

4Issue 2, income replacement benefit, was withdrawn by the applicant as an issue in dispute. The applicant's entitlement to income replacement benefits has therefore not been further analysed or considered in this matter.

5The applicant is not entitled to the treatment plans proposed in issues 3, 4, 5 (physiotherapy), nor the assessments proposed in issues 6 (psychological assessment) and 7 (orthopaedic assessment).

6As there are no overdue payment of benefits, no interest is owed.

ANALYSIS

The Minor Injury Guideline

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 minor injuries. 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.

Issue 1, MIG

9The applicant has failed to demonstrate that his injuries fall outside the MIG, as is his burden in this matter.

10As discussed above, s. 18(1) sets a limit of $3,500.00 for medical and rehabilitation benefits an insured may be entitled to when their accident injuries fall within the definition of minor, pursuant to s. 3(1). Accordingly, to be entitled to benefits beyond $3,500.00, the applicant must prove that his injuries fall outside the definition in s. 3(1), or that a documented pre-existing injury impedes his recovery within the confines of the MIG, pursuant to s. 18(2).

11The applicant submits that he sustained a fracture to the 4th finger of his right hand and a psychological injury from the accident and submits that these injuries are not within the definition of minor in s. 3(1), that he is entitled to benefits beyond the $3,500.00 limit of the MIG.

Fracture to the 4th finger

12The applicant relies on diagnostic imaging from February 12, 2021, three days post-accident, which reported a "likely remote fracture involving the head of the middle phalanx" in the 4th finger of his right hand. The applicant directs me to the clinical notes of Dr. Carol Wilcox, his physician, of October 19, 2021, which note the findings of the February 12,2024 imaging and add that the applicant has been suffering from variable right finger pain secondary to the accident for the last six months.

13On November 15, 2021, the applicant underwent further diagnostic imaging examinations which were reviewed by Dr. Edwin Wu, physician. Dr. Wu's clinical notes confirm a "post-traumatic deformity of the mid phalanx" in the 4th finger of the right hand with a step deformity similar to the images taken in February 2021.

14The diagnostic imaging revealed moderate osteoarthritis ("OA") in the right hand, particularly in the 5th finger. For example, X-rays from November 15, 2021 found moderate OA changes in the DIP articulation of the 5th digit (finger) with prominent dorsal osteophytes.

Which hand, left or right, is alleged to have the fractured finger?

i. Dr. Wu's clinical notes refer to the 4th finger deformity being on the applicant's left hand, however the diagnostic imaging reports are clear that the deformity is associated with the 4th finger on his right hand. The applicant submits that Dr. Wu's notes reflect a clerical error (the left hand rather than the right), and the applicant has not provided me with any clarification or addendum from Dr. Wu to address this apparent error.

ii. The respondent submits that it is unclear if Dr. Wu's report of the deformity in the applicant's 4th finger of his left hand was a mistake, and that this inconsistency with earlier medical evidence should raise doubt as to whether he suffered any non-MIG injuries in the accident.

iii. I find the diagnostic records describe this injury as being on the 4th finger of the right hand and that Dr. Wu's records indeed reflect a clerical error.

15The applicant also relies on the report of an orthopaedic assessment by Dr. Michael West, orthopaedic surgeon, on November 24, 2021. Dr. West reported that the fifth finger on the applicant's right hand revealed a lack of full extension by 45 degrees and the 4th finger "demonstrated similar but less severe findings". Dr. West did not elaborate on whether the 4th finger was fractured as a result of the accident, indeed his report did not list the alleged fracture as an injury resulting from the accident.

16The respondent submits that the alleged fracture of the 4th right finger does not fall outside the MIG because the deformity could be considered minor, that the applicant has failed to bring forth any evidence to suggest it rises to the level of a fracture, or any evidence that it was caused by the accident.

17The respondent submits the characterization of the 4th finger injury as "remote" and should raise skepticism as to whether the fracture was caused by the accident.

18The respondent relies on the report of an insurer examination ("IE") conducted by Dr. Alisa Naiman, physician, dated June 17, 2022, who diagnosed the applicant with only minor injuries arising from the accident. Dr. Naiman's report makes no mention of the possible fracture or deformity of the subject 4th finger.

19The question of whether the applicant sustained a physical injury beyond minor, turns on whether the 4th finger was fractured, and if so, whether the fracture was caused by accident. The medical evidence persuades me that the applicant indeed suffered a fracture to his 4th finger at some point, but there is insufficient evidence for me to conclude that the injury was caused by the accident.

20For example, the only reference to the 4th finger being fractured is from the February 12, 2021 X-ray where the radiologist, Dr. Zeev Maizlin, reported that the applicant had previously and likely sustained a remote fracture involving the head of the middle phalanx of the 4th finger". Dr. Maizlin goes on to suggest that the fracture line runs to "the articular surface and involvement of DIP joint with resultant minimal step deformity and OA changes."

21The applicant has not provided any clarity as whether a "remote fracture" is from three days ago or many months or years ago. This lack of certainty around what "remote" means, makes the report of the fracture less convincing.

22The clinical notes of Dr. Wu, in regard to the November 15, 2021 X-ray reports, refer to the 4th finger injury only as a post-traumatic deformity with no reference to the motor vehicle accident. It is not clear from these clinical notes that the 4th finger deformity is accident related.

23Neither the IE assessment by Dr. Naiman nor the orthopaedic assessment by Dr. West mention the 4th finger as an accident injury despite each of them having reviewed the diagnostic imaging results and assessed the applicant in-person.

24Taken in totality, the medical evidence does not convince me to conclude that the trauma which caused the 4th finger injury was accident related or whether the deformity in the finger is the result of trauma or the moderate osteoarthritis that afflicts the applicant's right hand. I find the applicant cannot escape the MIG on the basis of the alleged 4th right finger fracture.

Other physical injuries

25The applicant submits that the orthopaedic assessment report by Dr. West concluded that the applicant's injuries fall outside the MIG, based on his having sustained multiple deep soft tissue injuries involving several areas of his body including both the cervical and lumbar spine.

26In his assessment report, Dr. West concludes the applicant sustained the following physical injuries in the accident: left shoulder contusion with post traumatic rotator cuff tendinosis, muscular ligamentous strain of the right shoulder, left hand contusion with resultant third and fourth finger tendon injuries, and myofascial strain of the lumbosacral spine. Dr. West reports that though the "applicant continues to work, he does so in constant pain."

27The respondent submits that the applicant's physical injuries reported by Dr. West are non-MIG and relies on Dr. Naiman's IE report which concluded the applicant sustained whiplash (WAD II) and sprains and strains to the left shoulder, chest wall, and lumbar spine.

28I find the applicant has not proven he sustained other physical injuries that would remove him from the MIG because Dr. Wilcox's records are consistent with Dr. Naiman's IE in finding that the applicant sustained sprain and strain injuries from the accident that fit within the definition of minor, and the physical injuries Dr. West reports are also minor (sprains, strains, and tendinosis).

29I find the applicant has not proven that he sustained physical injuries that would remove him from the MIG.

Psychological injury

30The applicant has not proven that he sustained a psychological injury from the accident that would remove him from the MIG.

31The applicant seeks to be removed from the MIG due to psychological impairments suffered in the accident and relies on the psychological report of Dr. Erin Langis, psychologist, dated March 4, 2022, which diagnosed him with Other Specified Trauma and Stressor-Related Disorder, Specific Phobia (situational, vehicle related), and Somatic Disorder with Predominant Pain Persistent, moderate. Dr. Langis' assessment included several psychological tests listed below, each with the applicant's score:

i. Beck Depression Inventory II (BDI-II) – severe

ii. Beck Anxiety Inventory (BAI) – severe

iii. Severity Measure for Specific Phobia – Adult Version – severe

iv. Post-traumatic Stress Disorder Checklist (PCL5) – above the cut-off

v. Pain Disability Index (P.D.I.) – severe

vi. Injustice Experience Questionnaire (IEQ) – very high

vii. Pain Catastrophizing Scale (PCS) - above the cut-off

viii. World Health Organization Disability Assessment Schedule 2.0 – moderate to severe.

32The psychological assessment was conducted by Sathis Kumar Srinivasan, registered psychotherapist, and supervised by Dr. Langis. They conclude the applicant is consistent with full DSM-5 and ICD-10 criteria for a psychological injury. As a result of his psychological injury, the applicant is reported to have difficulty completing his activities of daily living (cleaning, laundry, household tasks) and suffers a significant inability to carry on a normal life.

33The respondent submits that the applicant's psychological report should be given less weight because it appears to have been authored by Mr. Srinivasan who is not qualified to render psychological diagnoses, it was based on self-reports with no validity testing and included no review of other documentary medical evidence. The respondent submits that the applicant's moderate to severe test scores suggest his psychological health would have been the subject of discussion or consultation with his family physician, yet Dr. Wilcox's clinical records make no mention of these psychological symptoms or complaints. The respondent submits that the finding of the applicant's severe specific driver/passenger phobia is bizarre considering that he continues full-time employment as an Uber driver.

34The respondent relies on an IE assessment by Dr. Marc Mandel, psychologist, and submits it should be given more weight than Mr. Srinivasan and Dr. Langis' psychological assessment. The respondent submits that unlike the Srinivasan/Langis report, Dr. Mandel's assessment included a review of other medical documentation, including the physician's clinical records, and validity testing of the applicant. The respondent submits that since Dr. Mandel, a psychologist, conducted the assessment, his findings are more credible than Mr. Srinivasan's, a psychotherapist. It submits Dr. Mandel is more qualified to determine psychological diagnoses.

35On the question of validity testing, the respondent directs me to Dr. Mandel's report which describes the applicant as completing the following tests:

i. Personality Assessment Inventory (PAI)

ii. Multidimensional Pain Inventory (MPI)

iii. Structured Inventory of Malingered Symptoms (SIMS)

36His report describes the purposes of each test. PAI provides a number of validity indices to provide an assessment of factors that could distort the results of testing, and to measure consistency in responses. In the second element of this test, consistency, the applicant exceeded the cut-off for profile validity and therefore the measure is assumed to be invalid. The MPI test considers how the applicant compares with other patients suffering chronic pain and is therefore not as relevant to this analysis of psychological impairment.

37On the SIMS test, the applicant "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". Dr. Mandel notes that "care must be taken in interpreting complaints of these types" (psychosis, neurologic impairment, amnestic disorders, low intelligence, and affective disorders) by the applicant.

38Dr. Mandel concludes there is a lack of consistent, objective information that would support a poor psychological prognosis, a DSM 5 diagnosis, or that he suffers clinically significant symptoms of a psychological impairment from the accident. He adds that the accuracy of the applicant's reported dysfunction is questionable given his score on validity tests.

39The applicant submits, in his reply submissions, that further evidence of his psychological injuries can be found in the OCF-3 dated April 1, 2021, by chiropractor, Dr. Glenn Watkins, and in Dr. West's reports. The applicant submits the OCF-3 includes reports of his sleep disorders, night terrors, and organic anxiety disorders.

40I find the applicant does not suffer a psychological injury from the accident because the principal medical evidence which alleges such an injury, Mr. Srinivasan and Dr. Langis' assessment, is not corroborated by other medical evidence. Dr. Wilcox's clinical records contain no revelation of psychological complaints or symptoms of the applicant. In the Srinivasan/Langis report the applicant is reported to be suffering from an inability to concentrate, nervousness while driving, sleeplessness, and having difficulty completing his activities of daily living. Yet, in Dr. Mandel's assessment, the applicant reports that following the accident he continued to handle all aspects of his own self care, is getting about 6 hours of sleep per night, has no significant diminished interest and/or lack of pleasure in the majority of the activities he partakes in, and is confident in his driving abilities. He experiences no physiological reactivity associated with being in a vehicle as a passenger or as a driver.

41I find a significant gulf between the psychological profiles of the applicant in these two reports. For example, the Srinivasan/Langis report concluded the applicant suffers from severe driver anxiety, but Dr. Mandel reported the applicant is confident in driving five days per week as an Uber driver.

42Of the two expert reports, I give Dr. Langis and Mr. Srinivasan's psychological assessment less weight because it relies heavily on the applicant's self-reports which were not tested for validity, did not include a review of other medical documentation, and it is unclear to what extent Dr. Langis conducted the assessment.

43I give more weight to Dr. Mandel's assessment because it includes validity testing, a document review, and Dr. Mandel is qualified to determine a psychological diagnosis.

44I am not convinced of the psychological injuries mentioned in the OCF-3 or Dr. West's reports since they appear to rely solely on the self-reports of the applicant which Dr. Mandel found to have questionable reliability, and neither Dr. Wagner (chiropractor), or Dr. West (orthopaedic surgeon) are qualified to opine on psychological injuries.

45For the reasons discussed above, I find the applicant did not suffer a psychological injury in the accident that would remove him from the MIG.

46Considering the physical and psychological injuries the applicant is claiming he sustained in the accident, I find that he has not proven, on a balance of probabilities, that they are beyond minor. He is therefore not entitled to medical and rehabilitation treatment beyond the $3,500.00 limit of the MIG.

Issues 3, 4, and 5, treatment plans for physiotherapy proposed by Sool Therapy Inc.

47The applicant has not demonstrated that the three treatment plans for physiotherapy are reasonable and necessary.

48The respondent submitted that $2,115.00 in medical and rehabilitation benefits has been paid to the applicant to date. Since I have found that the applicant is limited to $3,500.00 in medical and rehabilitation benefits and have no evidence before me that payments or approvals of other treatment plans above $2,115.00 have been made, it appears there is $1,385.00 remaining and available to the applicant within the MIG.

49To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

50The applicant submits that the reasonableness and necessity of these treatment plans is supported by medical evidence. Specifically, that the applicant's physicians, Dr. Wilcox and Dr. Wu recommended continued physiotherapy for his right hand, shoulder, anterior chest, and low back pain. The recommendations to continue physiotherapy appear in their clinical notes of both October 19, 2021 and November 19, 2021. The applicant submits the treatment plans are reasonable and necessary and he is entitled to them.

51The respondent submits that the applicant has failed to submit any of the disputed OCF-18's for physiotherapy in his evidence that would allow an analysis of whether they are reasonable and necessary, and that the remaining amount available in the MIG would only be enough to cover one of the proposed treatment plans in its entirety. The respondent maintains its denial of the disputed treatment plans.

52I find that I am unable to determine if any of the three disputed treatment plans for physiotherapy are reasonable and necessary because the respective OCF-18's are not provided in the applicant's evidence. The goals of the treatment and how the goals would be met, are not available for me to analyse, and additionally, I have no way of determining if the overall cost of achieving the goals is reasonable.

53I find that the applicant has not demonstrated that the three treatment plans for physiotherapy are reasonable and necessary.

Issue 6, psychological assessment, $2,179.22

54The applicant is not entitled to the psychological assessment treatment plan.

55The applicant submits that the psychological assessment is reasonable and necessary, and he is entitled to the benefit. He submits that the assessment was recommended in the OCF-3 and that because the applicant has incurred this benefit, he deems it to be reasonable and necessary.

56The respondent submits that the applicant has not produced any clinical records that suggest he is suffering mental health difficulties and no evidence to corroborate the findings of the Srinivasan/Langis psychological assessment. The respondent maintains its denial of the psychological assessment on the basis that it is not reasonable and necessary.

57I find the applicant has not demonstrated that the psychological assessment treatment plan is reasonable and necessary. The OCF-18 that relates to this proposed assessment was not filed in evidence, so I have no way to consider its goals in relation to the applicant's medical condition. I have found that the applicant did not suffer a psychological injury in the accident because, among other things, he did not provide corroborating medical evidence to support Mr. Srinivasan's and Dr. Langis' findings.

58I give little weight to the OCF-3 recommendation for a psychological assessment because its author, Dr. Watkins, a chiropractor, is not qualified to make such a recommendation, and the OCF-3 is largely based on self-reports of the applicant which, in Dr. Mandel's assessment, are unreliable.

59I find the applicant has not demonstrated that the psychological assessment is reasonable and necessary.

Issue 7, orthopaedic assessment, $2,680.00

60I find the proposed orthopaedic assessment is not reasonable and necessary and the applicant is not entitled to it.

61The applicant submits that the orthopaedic assessment is reasonable and necessary because Dr. West noted the applicant continues to suffer from post-traumatic headaches, insomnia and fatigue, and post-traumatic stress and anxiety. The applicant submits that the author of this treatment plan, Sool Therapy Inc., proposes similar treatments to what Dr. West and Dr. Wilcox recommend, namely, chiropractic, active therapy, and physiotherapy treatment.

62The applicant submits that pain relief is a legitimate medical and rehabilitative goal and submits that this treatment plan aligns with the applicant's goal of reducing pain from his accident injuries. The applicant submits that he has incurred this benefit because it was reasonable and necessary.

63The respondent submits that the applicant's family physician made no recommendation for an orthopaedic assessment. The respondent submits that the visit to Humber Hospital ER the applicant made on August 14, 2021 for low back pain made no reference to the accident and no orthopaedic assessment was recommended. The respondent also submits that the applicant failed to produce a copy of the relevant OCF-18 to support his contention that it is reasonable and necessary.

64The respondent maintains its denial of the orthopaedic assessment on the basis that it is not reasonable and necessary.

65I find the applicant has not demonstrated that the orthopaedic assessment is reasonable and necessary because it was not recommended by the applicant's family physician and the OCF-18 that relates to this proposed assessment was not filed in evidence, so I have no way to consider its goals in relation to the applicant's medical condition.

66Dr. West's assessment report described the applicant's physical injuries as sprains, strains, ligamentous and tendinous strains and soft tissue injuries, consistent with minor injuries as described in s. 3.1 of the Schedule.

67I am unpersuaded by the applicant's submission that the treatment plan is reasonable and necessary because he otherwise would not have incurred it. Incurring a benefit has no bearing on the test for its reasonableness and necessity.

68I find the applicant has not demonstrated that the orthopaedic assessment is reasonable and necessary, therefore he is not entitled to this benefit.

Interest

69Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments to the applicant are overdue, no interest is owed.

ORDER

70The applicant's injuries are predominantly minor as defined by s. 3 of the Schedule and are therefore subject to the $3,500.00 MIG limit.

71The three treatment plans for physiotherapy, and treatment plans for a psychological assessment and orthopaedic assessment, are not reasonable and necessary.

72The applicant is not entitled to interest.