Licence Appeal Tribunal

Citation: Najem v. TD General Insurance Company, 2024 ONLAT 22-005379/AABS

Licence Appeal Tribunal File Number: 22-005379/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:

Sarajuddin Najem Applicant

and

TD General Insurance Company* Respondent

DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Rizwan Wancho, Paralegal

For the Respondent: Jagdeep Khela, Counsel

HEARD: In Writing July 2, 2024

OVERVIEW

1Mr. Sarajuddin Najem (hereinafter referred to as the applicant), was involved in an automobile accident on December 10, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, TD General 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 Non-Earner Benefits ("NEBs") in the amount of $185.00 per week from January 10th, 2020 to date and ongoing?

iii. Is the Applicant entitled to $572.26 for physiotherapy services proposed by Justin Pascual of Scarborough South Physiotherapy and Rehab in a OCF-18 treatment plan dated August 4th, 2020, and denied on August 5th, 2020?

iv. Is the Applicant entitled to $8,277.60 for physiotherapy services and medical devices proposed by Alireza Kachooie of The Rehab Centre (MPDM) in a OCF-18 treatment plan dated August 26th, 2020, and denied on August 28th, 2020?

v. Is the Applicant entitled to $2,537.60 for physiotherapy services proposed by Justin Pascual of Scarborough South Physiotherapy and Rehab in a OCF-18 treatment plan dated February 18th, 2021, and denied on February 23rd, 2021?

vi. Is the Applicant entitled to $3,042.64 for psychological services proposed by Grace Gronkowska of Scarborough South Physiotherapy and Rehab in a OCF-18 treatment plan dated June 7th, 2021, and denied on June 21st, 2021?

vii. Is the Applicant entitled to $2,004.96 for physiotherapy services proposed by Justin Pascual of Scarborough South Physiotherapy and Rehab in a OCF-18 treatment plan dated August 11th, 2021, and denied on August 12th, 2021?

viii. Is the Applicant entitled to the assessments proposed by Justin Pascual of Scarborough South Physiotherapy and Rehab Centre as follows:

i. $2,200.00 for a chronic pain assessment, in a treatment plan dated February 18th, 2021, and denied on February 24th, 2021?

ii. $2,200.00 for a physiatrist assessment, in a treatment plan dated June 8th, 2021 and denied on June 23rd, 2021?

ix. Is the Respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?

x. Is the Applicant entitled to interest for any overdue payment of benefits?

RESULT

3I find that:

i. The applicant has failed to demonstrate that he is entitled to Non-Earner Benefits.

ii. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG. As a result, it is not necessary to determine whether the disputed medical benefits are reasonable and necessary as a result of the accident.

ANALYSIS

The Non-Earner Benefit (NEB)

Does the applicant suffer from a complete inability to carry on a normal life?

4I find that the applicant is not entitled to an NEB. He has not proven that he suffers from a complete inability to carry on a normal life as a result of the accident in accordance with s.12(1) of the Schedule.

5Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment because of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for the NEB entitlement test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, which generally requires a comparison of the applicant’s pre-accident and post-accident activities.

6The applicant takes the position that he qualifies for the NEB from January 10, 2020 to ongoing. He claims that the injuries sustained in the accident resulted in his suffering a complete inability to carry on a normal life. In support of his claim, he relies on an OCF-3 submitted by Dr. Dhalla, his family physician from January 8, 2020 and an OCF-3 submitted by Justin Pascual DC a chiropractor at the Scarborough West Physiotherapy Centre, completed on March 9, 2020.

7The respondent argues that the applicant is not entitled to the NEB for any period of time, citing primarily that the applicant has not met his burden of proving that he suffers from a complete inability to carry on a normal life. In support of their claim the respondent has submitted two Insurers Exams: one from Mr. Sasani, a qualified occupational therapist, completed on November 25, 2021 and one from Dr. Oshidari, a physiatrist, completed on March 4, 2022.

8The two OCF-3s submitted by the applicant contradict each other on the limitations of the applicant. Dr. Dhalla notes in his OCF-3 that the applicant does not suffer a complete inability to carry on a normal life. The OCF-3 submitted by Justin Pascual DC, chiropractor, notes that the applicant does suffer from a complete inability to carry on a normal life. I am persuaded more by the assessment of the applicant’s family physician’s opinion, as they are inline with the results of other medical assessments the applicant had.

9The two Insurers Exams submitted by the respondent both deliver the same assessment of the applicant that he does not suffer from a complete inability to carry on normal life.

10Mr. Sasani notes in his occupational therapy exam completed on November 25, 2021, that the applicant suffers no range of motion restrictions, no muscle weakness, and all tests regarding daily living activities are rated as either independent or partially able, and none are listed as unable. The conclusion from the examination was that the applicant does not suffer from an inability to carry on normal life.

11Dr. Oshidari, a physiatrist, completed a physical examination of the applicant, and noted no symptoms or signs to suggest lumbar stenosis or SI joint dysfunction. The conclusion of the examination found that the applicant does not suffer a substantial inability to carry on normal life.

12I prefer the medical evidence of the respondent as well as the applicant’s family doctor, which is more thorough regarding the applicant’s physical and psychological injuries, and also directly references the NEB test.

13In conclusion, I find that the applicant has not met his burden of proving that he is suffering from a complete inability to carry on a normal life as a result of the subject accident. He is therefore not entitled to a NEB.

The Minor Injury Guideline (“MIG”)

14Section 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 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.”

15An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

16The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant submits that he should be removed from the MIG due to his injuries being more sever that the injuries included in the definition of minor injury in the Schedule and because he suffers chronic pain and psychological impairments as a result of the accident.

17The respondent argues that the applicant should not be removed from the MIG, as he has not substantiated that the injuries incurred by the motor vehicle accident were more than minor injuries as defined by the Schedule. The respondent also disputes that the applicant suffers from chronic pain or a psychological condition not defined as a minor injury in the Schedule.

The applicant remains within the MIG

18I find that the applicant has not met his onus to demonstrate that his injuries and accident-related impairments warrant removal from the MIG.

Minor Injuries

19The applicant submits that the injuries suffered as part of the motor vehicle accident warrant removal from MIG as the injuries sustained fall outside of those outlined in the Schedule.

20The respondent submits the evidence shows, on a balance of probabilities, that the applicant is suffering from predominately minor injuries.

21An x-ray of the applicant’s back was completed on January 23, 2020 which noted mild wedging of T8-9 vertebrae and 10 to 15% loss of vertebrae height.

22An MRI of the applicant’s back performed in March 2020 did not note mild wedging of the T8-9 vertebrae, but did note mild spinal canal stenosis.

23Dr. Kachooie, a physiatrist, on August 11, 2020 reported the same wedging at the T8-9 vertebrae and some spinal stenosis.

24Dr. Khaled performed an Insurers Exam on May 4, 2021. During the physical examination, the doctor found no objective evidence of ongoing permanent accident related impairment. The doctor concluded that the applicant suffered from mechanical low back pain that was minor in nature.

25In review of the submitted evidence, I am not persuaded that the injuries the applicant suffered are outside of those defined as “minor injuries” in the Schedule.

26Accordingly, the applicant has not substantiated an injury outside of the MIG.

Chronic Pain

27I find on the balance of probabilities that the applicant has not proven that he suffers from chronic pain with a functional impairment.

28The Tribunal has determined that chronic pain with a functional impairment or a psychological impairment caused by the accident may warrant MIG removal.

29The applicant argues that he should be removed from MIG due to assessed chronic pain.

30The respondent argues that the applicant lacks medical evidence to support his claim that he suffers from chronic pain with a functional impairment.

31The evidence that the applicant relies on are the OCF-18, CNRs of Dr. Kachooie, a physiatry report from Dr. Wong, and a chronic pain accident benefits report from Dr. Razvi.

32The evidence the respondent relies on are Insurers Exams from Dr. Khaled, Dr. Oshidari, and Mr. Sasani, occupational therapist.

33Dr. Kachooie diagnoses the applicant with chronic pain in his letter dated August 11, 2020. I do not find Dr. Kachooie’s diagnosis persuasive because he does not explain how he got to that diagnosis or what type of functional impairments the applicant suffers as the result of his chronic pain.

34The chronic pain accident benefit report completed by Dr. Razvi on July 10, 2021 similarly diagnoses the applicant with chronic pain. I do not find Dr. Razvi’s report to be persuasive because it too fails to state how the doctor came to that opinion. Although the applicant complained of ongoing pain at that time, Dr. Razvi’s report notes only mild to moderate limits on the applicant’s activities of daily living and Dr. Razvi does not set out functional impairments which have resulted from the applicant’s chronic pain.

35The physiatry report completed by Dr. Wong on August 20, 2021 diagnoses the applicant with chronic pain. Dr. Wong does provide insight into how he determined the chronic pain assessment. My concern is that the doctor does not appear to have been aware that the applicant had returned to work as an Uber driver (self reported in both Mr. Sasani’s and Dr. Oshidari’s IE reports), which indicates that the applicant was more functional than was known to Dr. Wong. I therefore find that Dr. Wong’s report is not reliable and place little weight on his findings.

36The Insurer’s Exam completed by Dr. Khaled completed on May 4, 2021, found that the applicant did not have any residual or ongoing impairment. I find that Dr. Khaled’s examination contained findings which were consistent with the applicant’s stated functional abilities at that time as well as with the contemporaneous medical documentation filed with the Tribunal. I accept that Dr. Khaled’s findings are an accurate representation of the applicant’s functional ability at that time.

37The Insurers Exam completed by Dr. Oshidari on March 4, 2022 noted that the applicant self reported being independent in activities of daily living. The opinion of the doctor was that the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment and notes that the applicant has resumed working as an Uber driver. This report supports the respondent’s position that the applicant’s chronic pain has not resulted in significant functional impairment.

38Mr. Sasani notes in his occupational therapy exam completed on November 25, 2021, that the applicant suffers no range of motion restrictions, no muscle weakness, and all tests regarding daily living activities are rated as either independent or partially able, and none listed as unable. The conclusion from the examination was that the applicant does not suffer from an inability to carry on normal life and has resumed working as an Uber driver. Again, this is consistent with the medical records in evidence and is consistent with the applicant’s self-reporting at the time of the examination.

39In review of all the evidence, I am not persuaded by the applicant’s argument that he suffers from chronic pain with a functional impairment.

40The applicant is not removed from MIG on the basis of chronic pain with a functional impairment.

Psychological Condition

41I do not find that the applicant suffers from a psychological condition due to the motor vehicle accident.

42The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

43The applicant argues based on psychological assessment completed by Grace Gronkowska a psychological associate in her Initial Psychological Assessment of the applicant completed on April. 23, 2021, that he suffers from a psychological condition from the motor vehicle accident.

44The respondent argues based on the Insurer’s Exam completed by Dr. Murray on April 13, 2021, that the applicant does not suffer from a psychological condition.

45In the initial psychological assessment completed by Ms. Gronkowska, her findings are presented through an interview with the applicant and psychological test results. The specific tests and their results are not directly presented, only her impressions of the results. She reports that the applicant meets the criteria for Major Depressive Disorder, but the presented diagnosis does not help me understand how Ms. Gronkowska got to that definitive opinion. In addition, this report features information that seemed inconsistent within this report. In this report, it is stated that the applicant reports he felt shocked and scared at the time of the accident, although in other reports it is presented that the applicant drove his daughters home from school after the accident and then drove to the self reporting centre. The element of fear and shock are not in any other evidence provided. Another example is that the applicant has lost weight after the accident. In other reports, the applicant is reported to have gain weight. The collection of inconsistencies led me to underweight the diagnosis of Ms. Gronkowska.

46The Insurer’s Exam completed by Dr. Murray found that the applicant presented no evidence of a significant psychological condition. Dr. Murray came to that determination through a self reported interview with the applicant and psychometric testing. The testing found that the applicants anxiety scale and depression scale were not significantly elevated. Also, the personality assessment screen found that the applicant was generally a happy and positive person.

47In review of the evidence, I am more persuaded by Dr. Murray’s IE. His report seemed more consistent with information provided across all of the evidence submitted and did not have the inconsistencies I found in Ms. Gronkowska’s report.

48To summarize, the applicant has not demonstrated that he suffers from a psychological condition in relation to the motor vehicle accident and as such is not removed from MIG on that basis.

Conclusion

49For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.

The Treatment Plans

50As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

ORDER

51I find that:

i. The applicant is not entitled to Non-Earner Benefits.

ii. The applicant remains subject to the MIG. As a result, it is not necessary to determine whether the disputed medical benefits are reasonable and necessary as a result of the accident.

iii. The application is dismissed.