Licence Appeal Tribunal File Number: 21-014576/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:
Kermo Aus
and
Unifund
DECISION
ADJUDICATOR: Yanick Charbonneau
APPEARANCES:
For the Applicant: Nashmil Mamresuli, Paralegal
For the Respondent: Modasir Rajabali, Counsel
Written Hearing: Heard by way of written submissions
OVERVIEW
1Kermo Aus, the applicant, was involved in an automobile accident on September 1, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Unifund, and applied to the License Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
3The preliminary issues raised in this hearing are as follows:
i. The respondent requests that the Psychological Assessment Report of Dr. Aghamohseni be held inadmissible, given its allegations that the report was produced late.
ii. The applicant claims that the respondent did not follow the mandatory steps set out in s.38 and s.44 of the Schedule, and that the sanctions prescribed must be applied.
RESULT
4I find that the Psychological Assessment Report of Dr. Aghamohseni is admissible.
5I also find that the respondent complied with the mandatory steps set out in s.38 and s.44 of the Schedule to adjudicate the treatment plan of Dr. Aghamohseni.
ANALYSIS
The Psychological Assessment Report of Dr. Aghamohseni is admissible
6Rules 10.2(b) and (d) of the Common Rules of Practice and Procedure (the “Common Rules”) set out the information that a party shall provide, if it is to rely on the evidence of an expert witness, notably, a signed statement, and a signed report containing specific information.
7The respondent is relying on the Common Rules 10.2(b) and (d), and requests that the Psychological Assessment Report of Dr. Aghamohseni (“report”) be rendered inadmissible given its late production. The respondent argues that the applicant did not produce the report until June 9, 2023, after several queries.
8The applicant submits that the report was produced as part of all of his productions along with his Case Conference Summary dated October 20, 2022; further, he argues that this report is a corollary of Dr. Aghamohseni’s treatment plan and that it is, in his words, “akin to the report of a participant witness than a rule 24/44 report”.
9I gather from this assertion that the applicant is contending that he was not required to comply with the requirements of Common Rules 10.2 and 10.3. The applicant argues that he has complied with the Common Rules, given that, in his view, the timeline to provide the assessment report stems from the Rules applicable to non-expert witnesses.
10First, it appears that the applicant did, in fact, serve to the respondent the assessment report on September 6, 2022. Also, I am not persuaded that the respondent was prejudiced by, as it claims, the late submission of the report of Dr. Aghamohseni, in violation of the prescriptions of Rule 10.2.
11Further, the respondent was afforded the opportunity to respond by way of its s.44 reports, addenda, or supplementary submissions. In light of this, the exclusion of the report altogether would be disproportionate and unfair. Accordingly, I admit the opinion of Dr. Aghamohseni into evidence.
The respondent complied with the provisions of s.38 and s.48 of the Schedule
12Pursuant to s.38(8): “Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.”
13Of particular importance is s. 38(11) of the Schedule which states that, when an insurer does not comply with these notice provisions, “the insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).”
14The applicant submits that the notice of denial did not comply with the provisions of s.38(8), and that the notice is deficient because the respondent did not arrange a paper review or an addendum. The respondent submits that it did comply with the requirements of the provisions, as it conducted a s.33 request and a s.44 IE assessment.
15I find that the applicant does not provide any evidence to support his contentions that the notice is deficient. Further, the applicant has not explained how the alleged failure on the part of the respondent to arrange a paper review or an addendum amounts to a violation of s.38(8) requirements of the Schedule. The submissions or evidence of the applicant do not direct me to the alleged contraventions to any requirements of the Schedule.
16I agree with the respondent that it did, in fact, make s.33 requests for additional medical records and follow up with a s.44 IE. The fact that the respondent took these steps was uncontradicted in the reply of the applicant. As such, I find that the respondent complied with the mandatory step set out in the Schedule to properly adjudicate the claim, and I decline to order the sanctions set out in these provisions of the Schedule.
ISSUES
17The 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 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $3,042.64 for psychological services proposed by Dr. Aghamohseni in a treatment plan (OCF-18) dated December 2, 2021?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment recommended by Dr. Aghamohseni in a treatment plan (OCF-18) dated April 8, 2021, and denied on April 20, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
18The respondent requested costs from the applicant in its submissions.
RESULT
19I find that the applicant’s injuries are predominantly minor, and therefore subject to treatment within the MIG.
20I find that the applicant is not entitled to the treatment plans proposed. In view that the MIG limits have been exhausted and that no amounts are owed, no interest is payable.
21The request for costs sought by the respondent is dismissed.
ANALYSIS
Applicability of the Minor Injury Guideline (“MIG”)
22Section 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.”
23An 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 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.
24It is the applicant’s burden to establish entitlement to benefits beyond the $3.500.00 MIG limits on a balance of probabilities.
25The applicant takes the position that the following injuries he sustained in the accident remove him from the MIG. He argues that he sustained non-minor physical injuries, chronic pain, and psychological injuries. Regarding his physical injuries, the applicant submits that they are not minor due to a diagnosis of concussion and post-traumatic headaches.
26I note that, for the most part, the applicant highlighted his contentions in the enumeration section of the exhibits and medical evidence, and not in the actual submissions section. It is in his reply that the applicant points mainly to the head injury/concussion, psychological symptoms, and chronic pain he claims to have sustained.
27The applicant relies on a Discharge Report from Sunnybrook Hospital (“Sunnybrook”); an assessment from Dr. Burke, neuropsychiatrist at Sunnybrook TBI Clinic; a report from Dr. Aghamohseni, psychologist; and various post-accident Clinical notes and records (“CNRs”) confirming pain complaints, notably from Dr. Castro, a physician at Toronto Pain Clinic, and the CNRs of Golden Mile Walk-in Clinic.
28The respondent relies on the s. 44 G.P., psychological, and neurological reports from its assessors to support its position, as well as the Consultation Report of Dr. Burke at Sunnybrook, the CT scan from Sunnybrook, as well as the Consultation Report of Dr. Castro, physician at Toronto Pain Clinic.
Did the applicant sustain predominantly minor physical injuries?
29After reviewing the medical records provided by the applicant, I find that he has failed to establish on a balance of probabilities that he sustained a non-minor injury as a result of the accident.
30First, I find that the applicant has not established that he sustained a concussion in the accident. Neither Dr. Burke, nor the emergency physicians at Sunnybrook formally diagnosed the applicant with a concussion. Only the possibility of a mild concussion is stated.
31Further, the applicant has not provided any other medical evidence that he suffered a concussion because of the accident. The follow up notes of Dr. Burke from 2 days to just about one year after the accident, essentially capture the subjective pain reported by the applicant. There is no other reference to a concussion diagnosis in subsequent CNR entries of Dr. Burke.
32As for the CT scan at Sunnybrook, it does not reveal any abnormalities. The referral of Dr. Castro does diagnose the applicant with a closed head injury. Nevertheless, I do not find that the CNRs of Dr. Castro offer much insight as to the diagnosis of closed head injury or concussion in that they do not explain why they reached that diagnosis in view, notably, that the CT scan result was unremarkable.
33I find that the evidence before me does not support that the applicant suffered a concussion as a result of the accident. In further support of this view, I refer to the IE Assessor’s neurological report. The head CT scan was negative for acute injury. The applicant’s neurological examination was unremarkable. It concludes there is no indication of a trauma, myelopathy, radiculopathy, or neuropathy. According to the IE Assessors, Dr. Desai, and Dr. Hannah (the italics are mine):
“At best the claimant has sustained soft tissue injuries to the cervical spine resulting in likely cervicogenic headaches [whiplash associated disorder type 2]. The mechanism of injury would not lend itself to a more substantial structural alteration in the brain parenchyma i.e., mild traumatic brain injury.”
34Further, according to Dr. Hannah, the applicant presented “with tenderness of the cervical, thoracic, and lumbar regions. Thoracis Spine and Lumbosacral Spine – Active …. and that the applicant sustained no more than: “a sprain/strain type injury to his neck and back as well as cervicogenic headaches”.
35On balance, I assign more weight to the conclusions of the IE assessors in that they align with the bulk of the medical evidence. There is also limited to no objective medical evidence of a mild traumatic head injury. This is also consistent with the CT scan 2 days after the accident, which was unremarkable. Further, the medical evidence was thoroughly addressed in the s. 44 reports of assessors Dr. Desai and Dr. Hannah, which consistently identified the injuries sustained by the applicant as WAD-II, meaning that he suffered from whiplash-associated disorder.
Whether the applicant sustained psychological disorders warranting his removal from the MIG
36I find that the applicant has not demonstrated, on a balance of probabilities, that he developed accident-related symptoms which have led to psychological diagnoses that warrant his removal from the MIG.
37It has been held by this Tribunal that a diagnosis of psychological impairment related to the subject accident, would warrant removal from the MIG.
38Relying on the report of Dr. Aghamohseni, psychologist, the applicant submits that he suffered from clinical mood disorders, namely General Anxiety Disorder and Depression, as well as specific phobia, vehicular. The respondent argues that the applicant’s symptoms were not psychologically impairing, nor did he meet any diagnosable criteria for any mental disorder as a result of the accident. In support of its position, it relies on the reports of its IE assessors, notably that of Dr. Cohen.
39From the onset, the CNRs of the physiotherapist and that of Dr. Burke at Sunnybrook, do not speak to any psychological impairment of the applicant; for the most part, these CNRs reference the neck and head pain reported by the applicant. To be clear, there is little to no medical evidence in support of a follow up by a medical professional or GP for a mental disorder or clinical depression, let alone a diagnosis of General Anxiety Disorder. The applicant took over the counter and sleep medicine. There are also indications that the applicant suffered sleep issues before the accident.
40Dr. Aghamohseni is the only professional report that references the applicant’s psychological distress as Generalized Anxiety Disorder and severe depression. There is absolutely no mention of any disorder or severe depression in any other medical notes and records provided in these proceedings.
41In my view, the findings in Dr. Aghamohseni’s assessment report are inconclusive because their report does not mention whether any medical notes were reviewed. Dr. Aghamohseni mentions in their report that the applicant was diagnosed with severe concussion, yet their report does not specify the CNRs reviewed, if any.
42Further, Dr. Aghamohseni bases their diagnosis on a finding that the applicant has a “substantial inability that continuously prevents him from engaging in all tasks of employment”. However, Dr. Aghamohseni only conducted a questionnaire and relied entirely on the applicant’s self-reports. It is not clear how Dr. Aghamohseni reached the conclusion that the applicant suffers a substantial inability to engage in all tasks of employment based on the applicant’s answers.
43I find that the s.44 psychological assessment of Dr. Cohen offers a more reliable overview of the applicant’s stress levels and their connections with life stressors than the assessment report of Dr. Aghamohseni. Dr. Cohen falls short of diagnosing the applicant with Generalized Anxiety Disorder or clinical depression, indicating, in essence, that the applicant’s mental fortitude is supported by the fact that the applicant returned to work with modified duties, and that the applicant resumed driving to work.
44After having reviewed the medical notes, Dr Cohen opined that: “the applicant demonstrated sufficient psychological stability and fortitude that are inconsistent with acute depression”.
45To be clear, the self reporting of the applicant in the CNRs reveals no complaints of any difficulty at work, even as he reported going back to work, or in his relationships. The anxiety he suffers is consistent with the life stressors, in accordance with the evaluation of the IE psychological assessor, Dr. Cohen.
46In sum, the applicant failed to demonstrate that the psychological symptoms of the applicant meet the requirements to remove him from the MIG. I find that the psychological symptoms can be deemed to be within the confines of sequelae and do not meet the threshold for a diagnosis of psychological impairment and therefore, do not remove the applicant from the MIG.
Whether the applicant has chronic pain warranting his removal from the MIG
47I am persuaded that the applicant has chronic pain. However, having chronic pain in not sufficient, as it must give rise to a functional limitation to remove the applicant from the MIG. I am not persuaded that the applicant’s chronic pain amounts to a functional impairment.
48The applicant contends that he suffered chronic pain resulting from the accident and that he has been self-reporting his pain for almost 4 years. The respondent submits that there is no actual diagnosis of chronic pain from a physician. The respondent further submits that the applicant does not meet the criteria for chronic pain, and that there is no objective evidence of functional impairment.
49The applicant’s contention regarding his self – reported pain finds limited support, in view of the lack of objective medical evidence submitted. In this respect, there are no CNRs from the GP, and the applicant was not referred to any chronic pain specialist.
50In my view, the following medical entries (CNRs) also support my finding:
- The complaints of the applicant do not align with the objective examination of the physiotherapist Lau:
i. Physiotherapist Lau reports that the applicant’s complaints are “inconsistent with objective examination completed by [the] writer”.
ii. According to at least one entry, Physiotherapist Lau’s examination states that the applicant suffers from general upper back and neck stiffness, and that his gait is normal, radiation is at level zero, and his pain level is 3.
iii. Physiotherapist Lau recommends regularly, throughout the sessions, that the applicant continues self-management with exercise/stretches and lifestyle changes; it at least one instance, it was noted that the applicant had not been complying with the recommended stretching regimen.
- Sunnybrook’s records by Dr. Burke, stating that the head impact was unremarkable, as confirmed by CT head scan:
i. Dr. Burke at Sunnybrook also notes that the applicant returned to work part – time and that he returned to driving with no difficulty.
ii. Further, Dr. Burke confirmed that Neuroimaging or CT head scan 2 days after the head impact was unremarkable; there was no hemorrhages.
iii. Dr. Burke also opined that the consumption of a lot of analgesics by the applicant is ‘likely leading to medication overuse/rebound headaches”.
- The applicant’s self-reported that his symptoms were relieved by sleep:
i. The notes of Golden-Mile Walk-in Clinic state that his symptoms were relieved by sleep; these included: A headache and pulsating, radiation neck, shoulder, severity mild to severe. It bears mentioning that the applicant requested referral to a sleep clinic due to insomnia since 2014.
ii. It was strongly advised that the applicant seeks the family doctor for full assessment. There is no evidence that the applicant followed up.
51On balance, I find that there is a lack of objective medical proof of chronic pain with functional impairment related to the subject motor vehicle accident. Significantly, the applicant did not pursue with a family doctor, or otherwise, the sleep clinic.
52The American Medical Association 6th Edition Guidelines for Chronic Pain (“AMA Guides”) offer factors which have been consistently deemed to be persuasive by this Tribunal in assessing chronic pain with functional impairments. According to the AMA Guides, at least three of six criteria should be met to establish chronic pain syndrome. I find that the applicant did not meet the symptoms set out in the AMA Guides. The criteria of the AMA Guides and my findings are as follows:
i. The use of prescription drugs beyond the recommended duration and/or abuse of dependence or prescription drugs and other substances.
ii. Excessive dependence on healthcare providers.
iii. Secondary physical deconditioning due to disuse and fear-avoidance of physical activity due to pain.
iv. Withdrawal from one’s social milieu, including work, recreation, and other contacts.
v. Failure to restore pre-injury functions after a period of disability such that physical capacity is insufficient to pursue work, family or recreational needs, and;
vi. The development of psychosocial sequelae after the initial incident including anxiety, fear-avoidance, depression, or non-organic behaviors.
53Through the lens of the “AMA Guides”, the applicant also reported that he could not accomplish his house chores after work as he used to, but still managed to do so, that he started working with modified duties, and that he was prescribed over the counter and sleep medicine to alleviate pain symptoms. To this end, the applicant provided limited to no medical evidence of chronic pain with a functional disability related to the accident.
54I am not convinced by the applicant’s submissions that he meets at least 3 of the AMA criteria, that are secondary physical de-conditioning, withdrawal from social milieu, failure to restore pre-injury function after a period of disability, and development of psychosocial sequelae after the initial accident. Most importantly, the applicant does not point specifically to any medical evidence when discussing the AMA Guides, and his allegations find limited support in the evidence provided. In this respect, no demonstration was made of withdrawal from social milieu, and the applicant does not link the alleged secondary physical de-conditioning to the medical record.
55Finally, I find that the summations of the IE assessor Dr. Desai also support my conclusion that the applicant presents with little functional disability related to the accident. This position is also consistent with the bulk of the medical evidence. Indeed, the applicant’s diagnosis is such that it is contemplated within the MIG. Dr. Desai states that (the italics are mine):
“Cervicogenic Headaches; Myofascial sprain/strain injuries of the cervical, thoracic, and lumbar regions. prognosis for Mr. Aus’ accident-related injuries is considered favourable.
With the exception of snow shovelling, Mr. Aus reported that he has remained independent with all of his pre-accident activities of daily living and has resumed his full-time employment duties. This is considered consistent with my physical examination findings and his presentation”.
56As discussed above, the applicant’s physical injuries presented with tenderness of the cervical, thoracic, and lumbar regions. Thoracic Spine and Lumbosacral Spine – Active, within functional limits.
57Overall, the applicant did not adduce any evidence that he has been unable to restore to pre-injury functions after a period of disability, such that he is incapable to pursue work, family, or recreational needs.
58I find that the applicant’s injuries are “minor injuries” as defined in the Schedule and are subject to treatment within the MIG limits.
Interest
59As there are no overdue amounts, interests are not payable.
Costs
60Given my findings above on the injuries sustained by the applicant, I am not convinced that the conduct of the applicant in this instance amounts to a level that is unreasonable, frivolous, vexatious, or in bad faith. The request to award costs is dismissed.
ORDER
61The Tribunal orders as follows:
i. The applicant is subject to the MIG limits for benefits;
ii. In view of my findings and that the MIG limits have been exhausted, the applicant is not entitled to payment in respect of the disputed treatment plans or interest;
iii. The respondent is not entitled to costs; and
iv. The application is dismissed.
Released: July 26, 2024
Yanick Charbonneau
Adjudicator