Mehmood v. Intact Insurance Company, 2024 CanLII 6516

Licence Appeal Tribunal

Citation: Mehmood v. Intact Insurance Company, 2024 ONLAT 21-014156/AABS

Licence Appeal Tribunal File Number: 21-014156/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:

Asif Mehmood Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Bianca Marinescu, Paralegal

For the Respondent: Michael Courneyea, Counsel

HEARD: By way of written submissions

OVERVIEW

1Asif Mehmood, the applicant, was involved in an automobile accident on December 5, 2019, 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, Intact 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:

1. 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? The parties agree the MIG limits have been exhausted.
2. Is the applicant entitled to $1,926.47 for physiotherapy services, proposed by Prime Health Care Inc., in a treatment plan/OCF-18 (“plan”) dated July 30, 2020?
3. Is the applicant entitled to $1,417.51 for physiotherapy services, proposed by Prime Health Care Inc., in a treatment plan/OCF-18 (“plan”) dated September 15, 2020?
4. Is the applicant entitled to $2,000.00 for a chronic pain assessment proposed by Prime Health Care Inc., in a treatment plan/OCF-18 (“plan”) dated September 21, 2020?
5. Is the applicant entitled to $1,417.51 for physiotherapy services, proposed by Prime Health Care Inc., in a treatment plan/OCF-18 (“plan”) dated February 2, 2020?
6. Is the applicant entitled to $2,000.00 for a psychological assessment proposed by Prime Health Care Inc., in a treatment plan/OCF-18 (“plan”) dated March 9, 2021?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG. The funding limit for the MIG has been exhausted. Accordingly, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required and the applicant is not entitled to the treatment plans in dispute.

4The applicant is not entitled to interest on any overdue payment of benefits since there are no benefits owing.

ANALYSIS: The Minor Injury Guideline

Pre-existing Psychological Conditions & Psychological Impairments

5I find that the applicant has not met his burden to show that he has any pre-existing conditions that would prevent him from reaching maximal medical recovery if he is kept within the funding limits of the MIG. The applicant submits the existence of pre-existing psychological conditions. The applicant relies on the Disability Certificate/ OCF-3, dated February 2, 2021, prepared by Tejinderpaul Dhotar, Chiropractor, and the clinical notes and records (CNRs) by his family physician, Dr. Sakeenah Ameen. The OCF-3 describes the applicant experiencing a headache, whiplash associated disorder with neck pain, sprain and strain of the thoracic spine and lumbar spine, in addition to emotional shock and stress.

6The test to determine causation is the “but for” test, that provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident he would not have suffered an impairment. A decision-maker is to take a robust and pragmatic approach to determining causation. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

7Section 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. In accordance with section 3 of the Schedule, “minor injury” is defined as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae.

8Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if he is subject to the $3,500 limit.” The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that his injuries are not minor, or the applicant has a pre-existing condition that would prevent maximal medical recovery within the MIG.

9In the Superintendent’s Guideline No. 01/14, Minor Injury Guideline, dated February 2014, it is stated that the existence of any pre-existing injury will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing injuries will not do so. Only in extremely limited situations, where compelling evidence is provided by a health professional, satisfactorily demonstrating that a pre-existing condition, which was documented before the accident by a health professional, will prevent a person from achieving maximal medical recovery from the minor injury, is the person’s impairment to be determined not to come within the Guideline. Exclusion of a person from the Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the Schedule and this Guideline.

10The applicant submits that he experiences psychological impairments, which remove him from the Minor Injury Guideline (MIG), on the basis of post-accident complaints of anxiety to the family doctor, Dr. Sakeenah Ameen. The applicant relies on the CNRs of the family doctor Dr. Sakeenah Ameen.

11The respondent submits that the applicant has not submitted compelling medical evidence that he will be prevented from achieving maximal medical recovery if he were confined to the MIG, based on pre-existing psychological issues, in addition the existence of any psychological impairments described as caused by the accident. Also, the respondent submits that the applicant has not submitted any assessments or reports opining on the MIG or psychological impairments existing post-accident.

12The respondent submits that there are few references to pre-existing psychological conditions in the CNRs of Dr. Sakeenah Ameen, the family doctor; there is one occasion on April 12, 2018, when the applicant states that he is stressed regarding his brother. On May 26, 2018, the applicant meets with Dr. Nnamdi Ugwunze, Consultant Psychiatrist, where the applicant is prescribed Sertraline and psychotherapy is recommended for a two month period on a trial basis by Dr. Ugwunze. Dr. Ugwunze’s diagnosis is that the applicant is experiencing generalized anxiety disorder and impulse control disorder when the applicant relates that he is angry, has insomnia and depression. Dr. Ugwunze, finds no psychotic disorders and there is no applicant family history nor patient history of mental illness. The prescription record shows that the applicant did not fill the prescription for Sertraline following his appointment on May 26, 2018.

13I find that the CNRs do not support the applicant’s submission that he has pre-existing psychological impairments affected by the accident. Despite Dr. Ugwunze providing a prescription, the applicant does not follow up by taking psychotropic medication or filling the prescription for Sertraline after May 26, 2018, nor does the applicant attend psychotherapy as recommended by Dr. Ugwunze. The applicant does not complain of further psychological issues until after the accident, when the applicant is prescribed lorazepam by Dr. Ameen on December 16, 2019. He does not return with additional psychological symptoms of anxiety until over a year later on February 24, 2021, when he complains to Dr. Ameen, of an inability to sleep and of anxiety, which he does not attribute or relate to the accident. The applicant does not fill prescriptions for lorazepam, prescribed on December 16, 2019, again until February 2021. I find that the applicant’s psychological issues, both pre-accident and post-accident do not demonstrate a psychological impairment treated by regular use of medication, or the use of psychotherapy thus undermining the applicant’s contention that he experiences a pre-existing psychological condition or a post-accident psychological impairment removing him from the MIG.

14The respondent relies on the Insurance Examination, psychological assessment by Dr. Rakesh Ratti, Clinical Psychologist, dated March 10, 2021, where the applicant reported accident-related psychological symptoms of sleep difficulties, focus issues, mild driver/ passenger anxiety and irritability. After examining and testing the applicant for the purpose of determining the applicability of the MIG, Dr. Ratti opined that the applicant presented with minimal to mild emotional/ psychological distress respecting the accident which did not meet the criteria of any mental health diagnosis. Dr. Ratti concluded that the applicant fell under the Minor Injury Guideline, and that the treatment plan dated March 9, 2021, recommending a psychological assessment was not reasonable and necessary.

15I find that the applicant has not met his burden to show that his pre-existing psychological condition removes him from the Minor Injury Guideline. Likewise, I find that the applicant has failed to establish that post-accident he experienced psychological injuries which prevent his maximal recovery within the limitations of the MIG. I rely on the CNRs, prescription summaries, as described, and the opinion of Dr. R. Ratti, Clinical Psychologist, that the applicant proved to experience minimal to mild emotional/ psychological distress respecting the accident which did not meet the criteria of any mental health diagnosis. I find that Dr. Ratti’s opinion is in conformity with the medical evidence described in the CNRs of the family doctor, Dr. Ameen, and with the prescription summaries provided in evidence.

Accident-related Physical Injuries

16I find that there is insufficient evidence that the accident resulted in injuries removing the applicant from the MIG. There is no medical report nor CNRs from any physician which supports that the applicant requires treatment outside the Minor Injury Guideline because of the injuries caused by the accident. The Family Physician, Dr. Ameen, describes in the CNRs that the applicant complained of accident-related pain on December 16, 2019, but he did not again mention accident-related pain until the year 2021. On December 16, 2019, Dr. Ameen records a diagnosis of “847-Neck, low back, coccyx.” On November 25, 2021, almost two years later, the applicant complained of bilateral shoulder pain and lower back pain radiating to the buttocks. Dr. Ameen diagnosed the applicant with lumbar strain on November 25, 2021. In addition, although the applicant filled prescriptions for naproxen and baclofen on December 23, 2019, prescription summaries show that he did not request nor fill prescriptions thereafter for pain medication or anti-inflammatories.

17The post-accident diagnostic imaging and the applicant’s failure to fill prescriptions for pain medication or anti-inflammatories after December 23, 2019, does not support the applicant’s submission that his accident-related injuries are outside the limits of the MIG for the purpose of reaching maximal recovery. Diagnostic ultrasound imaging taken on March 1, 2021, to investigate the applicant’s reports of neck and shoulder pain, yielded a normal result, negative for impingement in the neck and right shoulder region. However, there was a thickening inhomogeneity of the supraspinatus tendon noted in the left shoulder reflecting tendinosis, as opposed to being an accident-related injury. Tendinosis is typically caused by extreme regular exercise, inactivity, or arthritis. The applicant works for Air Canada as a baggage handler and as an Uber driver.

18On March 1, 2021, the applicant underwent a cervical spine x-ray which was normal with vertebral heights maintained in the lumbar spine, showing an unremarkable outcome aside from degenerative changes. A further MRI of the applicant’s shoulder performed on January 8, 2022, showed a normal result for both the applicant’s shoulders with no sign of tendinosis.

19The applicant submits that following the accident he met with his family physician Dr. Sakeenah Ameen on December 16, 2019, with complaints of neck, back and shoulder pain. He submits that he continues to experience unresolved neck, back and shoulder pain as a result of the accident.

20The respondent submits that on December 16, 2019, eleven days after the accident, the applicant complained that the accident caused neck, shoulder and back pain. However, the respondent submits that the applicant did not return with any subsequent accident-related complaints until the year 2021, approximately two years after he mentioned accident-related pain to Dr. Ameen, which fact does not support the applicant’s contention that his accident-related injuries require funding outside the MIG. The respondent relies on the Insurance Examinations of Dr. Allan A. Kopyto, and the Insurance Examination and File Review of Dr. Melissa Hershberg (General Practitioner), agreeing that the applicant experienced uncomplicated musculoligamentous strains in the neck and back and uncomplicated minor soft tissue injuries that fall under the MIG.

21The IE Independent General Practitioner Assessment by Dr. Allan A. Kopyto, taking place on March 4, 2020, diagnosed the applicant with uncomplicated musculoligamentous strains in the neck and back. As a result, the applicant was found to have sustained a “minor injury”. On September 30, 2020, Dr. Melissa Hershberg (General Practitioner), conducted an I.E. Independent Physician Assessment – File Review, where she concluded that the applicant sustained minor soft tissue strain injuries, including cervical strain, right shoulder strain, and lumbar strain which are injuries falling within the Minor Injury Guideline. On October 13, 2020, the applicant attended an I.E. Independent Physician Assessment, with Dr. Melissa Hershberg (General Practitioner), reporting ongoing injuries including neck pain, low back pain and headaches. Following an examination of the applicant, Dr. Hershberg concluded that the applicant sustained uncomplicated minor soft tissue injuries falling within the MIG.

22I find that there is insufficient evidence that the accident caused physical injuries removing the applicant from the MIG. There is no medical report nor CNRs by Dr. Ameen, which support that the applicant requires treatment outside the Minor Injury Guideline. As stated, prescription summaries show that the applicant did not fill prescriptions for pain medication or anti-inflammatories after December 23, 2019, in addition, diagnostic test results show no evidence of fracture and normal results in the neck and cervical spine, with the most recent MRI, performed on January 8, 2022, of the applicant’s shoulders, showing a normal result for both the applicant’s shoulders with no sign of tendinosis. The Insurance Examinations of Dr. Allan A. Kopyto, and the Insurance Examination and File Review of Dr. Melissa Hershberg (General Practitioner), agree that the applicant experienced uncomplicated musculoligamentous strains in the neck and back as a result of the accident and uncomplicated minor soft tissue injuries that fall under the MIG.

Chronic Pain Syndrome

23I find that the applicant has not satisfied me that he has developed chronic pain syndrome as a result of the accident. The Disability Certificate/ OCF-3, dated February 2, 2021, describes the applicant experiencing whiplash associated disorder with neck pain, sprain and strain of the thoracic spine and lumbar spine. The Family Physician, Dr. Ameen, describes in the CNRs that the applicant complained of accident-related pain on December 16, 2019, and not again until the year 2021. On December 16, 2019, Dr. Ameen records in the CNRs a diagnosis of “847-Neck, low back, coccyx.” On November 25, 2021, the applicant complained of bilateral shoulder pain and lower back pain radiating to the buttocks. Dr. Ameen diagnosed the applicant with lumbar strain. In addition, although the applicant filled prescriptions for naproxen and baclofen on December 23, 2019, prescription summaries show that he neither requested nor filled prescriptions thereafter for pain medication or anti-inflammatories.

24With regard to the applicant’s functionality post-accident, the applicant stated to Dr. Allan A. Kopyto, for the purpose of Dr. Kopyto’s IE Independent General Practitioner Assessment, that he did not miss any time taken from work as a result of the accident and that he returned to his duties as a baggage handler for Air Canada, in addition, to resuming his work as an Uber driver two weeks after the accident. The applicant reported to Dr. Kopyto that in terms of personal care he was less involved by reason of stress and back pain. The CNRs of Dr. Ameen do not comment on the accident having any effect on the applicant’s functionality. As submitted by the respondent, there are no reports or assessments submitted by the applicant as evidence of the accident having any effect on the applicant’s functionality.

25The applicant submits that he experiences chronic pain syndrome as a result of the accident. He submits that on November 25, 2021, Dr. Ameen describes in the CNRs that the applicant complains of shoulder and neck pain despite the accident occurring two years beforehand, well beyond the six-month period accepted as defining a chronic pain condition. The applicant asks the Tribunal to consider the decision in 17-003735/AABS v. Certas Direct Insurance Company, in which the Tribunal found that “pain reduction which increases strength is a reasonable treatment goal.”

26The respondent submits that there is no credible evidence showing that the applicant experiences chronic pain. The applicant’s family doctor Dr. Ameen has made no diagnosis of chronic pain nor is there a report or assessment that diagnosing the applicant with chronic pain. The respondent submits that not only has there been no diagnosis of chronic pain, but the applicant has failed to provide any evidence that his functional abilities have been negatively affected because of injuries he sustained in the accident.

27The respondent submits that the applicant has failed to meet his onus to prove that he suffers chronic pain with functional impairment following the accident. The respondent submits that the applicant has failed to provide evidence that his functional abilities were negatively affected by the accident. In addition, the respondent submits that the insurance examiners opine and conclude that the applicant has uncomplicated soft tissue injuries limited by the MIG. The applicant has not submitted evidence that he continues to take pain medication for his accident-related injuries. Finally, all diagnostic imaging since the accident has been normal nor does it reveal degenerative changes which are naturally occurring and unrelated to the accident.

28I agree with the respondent’s submissions that the applicant did not report any functional limitations and that there is insufficient medical evidence showing that the applicant experiences chronic pain. The applicant was prescribed and filled prescriptions for naproxen and baclofen on December 23, 2018, however, the prescription summaries do not show the applicant seeking pain medication afterwards. In addition, the IE examinations do not describe the applicant with injuries that would trigger chronic pain. Dr. Allan A. Kopyto, diagnosed the applicant with uncomplicated musculoligamentous strains in the neck and back. On September 30, 2020, Dr. Melissa Hershberg (General Practitioner), conducted an I.E. Independent Physician Assessment – File Review, where she concluded that the applicant sustained minor soft tissue strain injuries, including cervical strain, right shoulder strain and lumbar strain. Following an examination of the applicant on October 13, 2020, Dr. Hershberg concluded that the applicant sustained uncomplicated minor soft tissue injuries falling within the MIG.

29I find that the evidence does not support the applicant’s case that he experiences chronic pain removing him from the MIG. I find that the applicant has not satisfied me that he developed chronic pain as a result of the accident.

30As an overall conclusion, the applicant has not satisfied me that he warrants removal from the MIG. As the MIG limits have been exhausted, I do not need to analyse whether any disputed treatment plans are reasonable and necessary as the applicant is not entitled to any of them.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed in relation to the treatment plans or expense claims in dispute, the applicant is not entitled to interest.

Order

32I find that the applicant sustained minor injuries and is subject to the MIG. The funding limit for the MIG has been exhausted.

33The applicant is not entitled to the treatment plans in dispute.

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule, however as no benefits are owing or overdue, no interest is owing to the applicant.