Licence Appeal Tribunal File Number: 22-005680/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:
Mohamad Saad
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Naman Nanda, Counsel
For the Respondent:
Karly Lyons, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mohammad Saad (the “Applicant”) was involved in an automobile accident on August 29, 2021, and sought benefits from Economical Insurance Company (the “Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The Respondent characterized the Applicant’s injuries as a minor injury as defined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Respondent also determined that the Applicant does not meet the disability test for income replacement benefits (“IRBs”) and denied funding for that benefit as well. The Applicant disagrees with these decisions and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 funding limit for a minor injury?
ii. Is the Applicant entitled to medical benefits proposed by Physiomed as follows:
i. $2,780.00 for a chiropractic treatment plan, dated December 2, 2021;
ii. $2,150.00 for a chiropractic treatment plan, dated October 15, 2021?
iii. Is the Applicant entitled to medical benefits proposed by Downsview Healthcare Inc. as follows:
i. $3,248.41 for a psychotherapy treatment plan, dated June 7, 2022;
ii. $2,486.00 for a chronic pain assessment plan, dated April 25, 2022;
iii. $2,486.00 for a lumbar spine MRI, submitted via plan dated June 12, 2022;
iv. $2,486.00 for a cervical spin MRI, submitted via plan dated June 12, 2022; and
v. $2,486.00 for a neurological assessment plan, dated June 28, 2022?
iv. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week for the period from December 22, 2021 to July 30, 2022?
v. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4The Applicant sustained a minor injury as a result of the accident. He is not entitled to the treatment and assessment plans in dispute because they proposed goods and services that fall outside the MIG.
5The Applicant is not entitled to IRBs as claimed.
6No interest is payable.
BACKGROUND
7The Applicant was the driver of a vehicle which was struck on the rear end while in traffic on a major highway. He sought no medical attention at the scene of the accident and no police or ambulance attended at the scene of the accident.
8The Applicant claims that he developed a chronic pain condition and psychological injuries as a result of the accident, for which he should not be subject to the MIG. He also claims that his accident-related injuries preclude him from completing the essential tasks of his employment.
ANALYSIS
Minor Injury Guideline (“MIG”)
9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
10The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule. The Applicant claims that he suffers from psychological impairments as well as chronic pain and that he should not be subject to the MIG and the $3,500.00 funding limit because of his injuries.
11For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.
Psychological Injury
12I find that the Applicant has not sustained a psychological injury as a result of the accident.
13I give no weight to the pre-screen report by Dr. J. Brunshaw, psychologist, dated October 14, 2021. I find Dr. Brunshaw’s report unpersuasive because it is based entirely on the Applicant’s self-reported symptoms, which are inconsistent, and fails to cross-reference those reports with the medical evidence. For example, the Applicant reported to the interviewer that he lost consciousness in the accident but previously denied losing consciousness or that he suffered from any concussion symptoms when he met with his family physician, Dr. A. Boctor, on September 13, 2021. Similarly, the Applicant reported in the pre-screen interview that his pain limits his ability to complete “nearly all of his pre-accident activities of daily living,” that “(h)e now avoids entering a vehicle if possible,” and that he started smoking again after a 6-year hiatus. Yet, in contradiction the evidence clearly indicates that he was smoking as recently as 8 months prior to the accident and his submissions and evidence demonstrates that he returned to work as a labourer and ride share driver immediately following the accident.
14When assessing whether the Applicant sustained a psychological injury, I give no weight to the report of Dr. D. Louvish, physician, dated May 26, 2022. Dr. Louvish conducted a chronic pain assessment and diagnosed the Applicant with psychological distress, along with myofascial injuries, post-traumatic headaches, sleep issues, memory and concentration difficulties, and finds that the Applicant “appears to have developed chronic pain syndrome.” I give no weight to the comments on the Applicant’s psychological health because it is based entirely on self-reported symptoms from a person who provides inconsistent information. Dr. Louvish never conducted any psychometric testing to assess any psychological impairment and failed to address the clear contradictions between the Applicants reporting and the medical record. For example, the Applicant reported to Dr. Louvish that he lost consciousness in the accident, that he went overseas for treatment in early 2022, that he uses medical marijuana as-needed, and that he is unable to resume his activities of daily living. By contrast, the Applicant denied losing consciousness to his family doctor, he provided no treatment records from any clinics overseas and never mentioned receiving or planning to receive any treatment during his trip despite discussing it with Dr. Boctor prior to departing. Further, the Applicant told Dr. Boctor that he will not engage in the use of medical marijuana unless the Respondent paid for it, that he travelled independently overseas earlier that year, and continues to drive for a ride share company – suggesting that he has resumed his activities of daily living.
15I find no compelling evidence of a psychological injury in the clinical notes and records (“CNRs”) of Dr. Boctor and Physiomed. The only instance of a psychological complaint in Dr. Boctor’s CNRs is one line that states the Applicant is “stressed he cannot go back to work.” Again, in contradiction, his submissions and evidence demonstrate that he returned to work immediately following the accident and it was only in November 2021 when he asked Dr. Boctor for a note to refrain from work. On December 13, 2021, during an annual assessment, the Applicant reported no depression nor anxiety symptoms and no mental health concerns.
16The disability certificate completed by Dr. K. Shaikh, a chiropractor employed by Physiomed, dated September 7, 2021, holds no weight when assessing whether the Applicant sustained a psychological injury. Dr. Shaikh’s diagnosis holds no weight because psychological injuries are outside of the scope of a chiropractor. Further, in the disability certificate, Dr. Shaikh incorrectly diagnosed the Applicant with a concussion, which is contrary to the findings (or lack thereof) from the acute-care physicians.
17I find no compelling evidence linking a referral to a cannabis clinic to accident-related anxiety and depression. On October 28, 2021, the Applicant complained to Dr. Boctor of ongoing low back pain and Dr. Boctor offered to refer him to a chronic pain management clinic, but the Applicant declined due to a reported fear of needles. As a result, Dr. Boctor offered a referral to a cannabis clinic, which the Applicant later told Dr. Boctor that he would not engage in the cannabis clinic unless the Respondent paid for the services. In the referral letter, Dr. Boctor noted the Applicant’s long-standing low back pain and advised that insomnia was an issue and anxiety and depression are secondary to the accident and his ability to work. Once the Applicant had a consultation with the cannabis clinic on December 1, 2021, he was deemed suitable for a therapeutic trial of cannabis and to follow-up in 2 months time. At the follow-up appointment, the Applicant reported a moderate-good beneficial response to the therapy and was advised to continue with it. Records from the follow-up appointments included no meaningful mention of accident-related psychological issues.
18I prefer the insurer’s examination report of psychologist M. Lotfalizadeh, dated August 5, 2022. Psychologist Lotfalizadeh assessed the Applicant and issued a report and found that the Applicant scored significantly above the cut-off score for the identification of suspected malingering and concluded that he did not suffer from a diagnosable psychological disorder. The Applicant’s scores during psychometric testing indicated severe levels of anxiety and depression, which psychologist Lotfalizadeh considered invalid due to suspected malingering. Assigning no weight to the anxiety and depression scores is reasonable considering that the Applicant never reported any such symptoms to Dr. Boctor, outside of one incident in September 2021, noted previously.
19In preferring the report of psychologist Lotfalizadeh, it follows that I find that the Applicant did not sustain a psychological injury as a result of the subject accident.
Chronic Pain
20I find that the Applicant’s ongoing intermittent low back pain is sequalae of his minor injury.
21I give very little weight to the report of Dr. Louvish, dated May 26, 2022, and prefer the opinion of Dr. H. Platnik in the reports dated February 3, 2022 and June 30, 2022. Dr. Louvish assessed the Applicant and diagnosed him with myofascial injuries to the neck, shoulders, and back, as well as post-traumatic migraine headaches, psychological distress, post-traumatic sleep disturbance, and difficulties with memory and concentration and, in a different section of the report, Dr. Louvish states that the Applicant “appears to have developed chronic pain syndrome”.
22It appears that Dr. Louvish relied on or accepted the Applicant’s demonstrably false reports when rendering his opinion. For example, the Applicant reported to Dr. Louvish that he suffers from persistent migraine headaches, stopped working out at the gym, that he does not smoke cigarettes, preferred to be alone, and has not returned to working construction due to the accident. In contrast, CNRs by the Applicant’s family physician, Dr. Boctor, which Dr. Louvish reported to have reviewed as part of the assessment, state no headaches during a visit on December 13, 2021, that he stopped going to the gym during the Covid-19 pandemic, that he has a history of smoking, travelled overseas for two months in early 2022 and engaged in social activities while there and was cleared for work, albeit on modified duties, by Dr. Boctor as early as March 1, 2022.
23Dr. Louvish inaccurately summarized various other medical documents as part of the evaluation. The report by Dr. Louvish includes excerpts of Dr. Boctor and other CNRs but omits information that might indicate that the injuries are not as severe. For example: when summarizing the Applicant’s first visit to Dr. Boctor on September 13, 2021, Dr. Louvish omitted the comments indicating unremarkable neurological examination results, and a note stating that the applicant never lost consciousness and has no symptoms of a concussion. This is particularly egregious given that the Applicant reported to Dr. Louvish that he lost consciousness at the time of the accident, in direct contrast to the notes omitted in the summary. Similarly, Dr. Louvish highlighted a note of radiating pain in the referring documents for the cannabis clinic but omitted Dr. Boctor’s comments on December 8 and 20, 2021, which clearly stated that the Applicant’s “pain does not radiate”. Dr. Louvish relied on false information to find that the Applicant meets at least 4 of the 6 criteria for chronic pain syndrome, as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment “AMA Guides”) and it is unclear what criteria Dr. Louvish finds the Applicant meets. The report notes that the Applicant meets at least 4 of the 6 criteria but does not state which 4.
24I find that the Applicant does not meet any of the criteria for a chronic pain condition. There is no evidence of abuse or dependence on prescription drugs or other substances. The Applicant reported to use over-the-counter pain medication and medicinal cannabis as needed and there is no indication of abuse of substances in the various CNRs before me. There is no evidence of excessive dependence on healthcare providers or family. The Applicant does not visit his family physician or the treatment facility excessively, lives alone, purchases his own groceries, prepares his own meals, and was able to travel alone overseas following the accident. There is limited evidence of secondary deconditioning due to disuse – Dr. Louvish is the only healthcare provider to indicate that the Applicant’s tone or muscle bulk may be diminished. The Applicant reports some social withdrawal in the form of spending less time with friends and family, but Dr. Louvish neglects to appreciate that he continues to engage in social behaviour such as international travel and driving a ride share. The Applicant reported to Dr. Louvish that he has been unable to engage in his pre-accident employment due to pain but continued to drive a ride share throughout the construction off-season and was cleared for work by Dr. Boctor by no later than March 1, 2022. The Applicant confirmed via his submissions that he returned to construction work by no later than July 22, 2022. Lastly, there is no credible evidence to suggest the Applicant developed psychosocial sequalae after the accident.
25I prefer Dr. Platnik’s opinion and report because they are more consistent with the Applicant’s medical record than Dr. Louvish’s. Dr. Platnick assessed the Application and issued a report dated February 3, 2022. In the report, Dr. Platnick noted that the Applicant presented as guarded/self-limited but exhibited greater range of motion (“ROM”) during informal testing. Dr. Platnick considered it unlikely that the Applicant struck his head on the steering wheel while wearing a functioning seatbelt, as reported by the Applicant. Dr. Platnick opined that on examination there were no valid/reproducible signs or indicators to support residual or ongoing musculoskeletal, neurological or orthopedic accident-related injury or impairment and concluded that the Applicant sustained soft tissue injuries to his neck and back as a result of the accident. I agree with Dr. Platnik’s conclusion that the Applicant sustained soft tissue injuries as a result of the accident. As a result, I find that his injuries are rightfully captured in the minor injury definition and he is subject to the MIG and the $3,500.00 funding limit for a minor injury.
26The treatment and assessment plans in dispute propose goods and services which fall outside the MIG. Having concluded that the Applicant sustained a minor injury, it follows that he is not entitled to medical benefits outside the MIG and the $3,500.00 funding limit for a minor injury.
Income Replacement Benefits (IRBs)
27IRBs are payable to the Applicant if he can demonstrate on a balance of probabilities that he is unable to perform the essential tasks of his employment as a construction labourer and rideshare driver.
28I find that the Applicant has not met his onus to demonstrate entitlement to IRBs as claimed.
29The Applicant’s medical evidence indicates that he met the disability test for IRBs for the period from December 22, 2021 to February 27, 2022, but his failure to provide information clarifying his post-accident earnings renders the finding moot. In the September 7, 2021 disability certificate, Dr. Shaikh anticipated that the Applicant’s injuries would take more than 12 weeks to recover. On November 4, 2021, Dr. Boctor provided the Applicant with a medical note indicating that the Applicant was unable to work from October 22 to December 22, 2021.
30By February 27, 2022, the Applicant asked Dr. Boctor for a note to confirm his ability to work, which is in direct contrast to the Applicant’s submissions for this hearing. Additionally, the Applicant qualified for and received employment insurance benefits effective February 27, 2022, which further indicates that he is not disabled from working. A person receiving regular employment insurance benefits must attest that they are ready, willing, and able to work during the period of claim. By qualifying for and receiving employment insurance benefits, the Applicant is thus not entitled to IRBs.
31The Applicant earned employment income following the accident but has not disclosed the amount earned. The Applicant continued his work as a driver of a ride share during his period of claim and has access to his drive log, which would confirm or deny his work as a driver and his post-accident income earned. He neglected to provide the information and, as a result, I draw an adverse inference as requested by the Respondent. The income information is readily available to the Applicant, yet he failed to provide it and I infer the failure to provide the information is because the information does not support his claim.
32Accordingly, I find that the Applicant has not met his onus to demonstrate entitlement to IRBs as claimed.
Interest
33Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule.
34Having found that no benefits are payable, it follows that no interest is payable.
CONCLUSION AND ORDER
35I find that the Applicant sustained a minor injury as a result of the accident and is rightfully subject to the MIG and the $3,500.00 funding limit for a minor injury. He is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG.
36The Applicant is not entitled to IRBs as claimed.
37No interest is payable as no payments went overdue.
Released: June 13, 2024
__________________________
Brian Norris
Adjudicator