Licence Appeal Tribunal File Number: 22-008413/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:
Rahmatullah Oriakhel
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Michael Brill, Counsel
For the Respondent: Theomarcus Giannou, Counsel
HEARD: In Writing
July 2, 2024
OVERVIEW
1Mr. Rahmatullah Oriakhel (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, Belair 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 $2,200.00 for psychological services, proposed by All Health Medical Centre in a treatment plan/OCF-18 (‘plan’) dated January 14, 2021?
iii. Is the applicant entitled to $2,200.00 for occupational therapy services, proposed by All Health Medical Centre in a plan dated April 19, 2021?
iv. Is the applicant entitled to $1,860.00 for chiropractic services, proposed by All Health Medical Centre in a plan dated April 15, 2021?
v. Is the applicant entitled to $1,946.19 for occupational therapy services, proposed by All Health Medical Centre in a plan dated April 15, 2021?
vi. Is the applicant entitled to $2,200.00 for psychological services (social work assessment), proposed by All Health Medical Centre in a plan dated May 25, 2021?
vii. Is the applicant entitled to $4,140.28 for psychological services, proposed by All Health Medical Centre in a plan dated July 19, 2021?
viii. Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by All Health Medical Centre in a treatment plan dated October 1, 2021?
ix. Is the applicant entitled to $2,460.00 for a neurology assessment, proposed by All Health Medical Centre in a treatment plan dated October 1, 2021?
x. Is the applicant entitled to $2,460.00 for a orthopaedic surgery assessment, proposed by All Health Medical Centre in a treatment plan dated October 21, 2021?
xi. Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by All Health Medical Centre in a treatment plan dated March 29, 2022?
xii. Is the applicant entitled to $6,566.41 for a chronic pain program, proposed by All Health Medical Centre in a plan dated May 7, 2022?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.
ANALYSIS
The Minor Injury Guideline (“MIG”)
4Section 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.”
5An 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.
6The 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 persistent chronic pain and psychological impairments.
7The 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
8I find that the applicant has not met his onus and demonstrated that his injuries and accident-related impairments warrant removal from the MIG.
Chronic Pain
9I find on the balance of probabilities that the applicant has not proven that he suffers from chronic pain with a functional impairment.
10If the Tribunal determines that chronic pain with a functional impairment or a psychological condition exist, it may warrant MIG removal.
11A major test for chronic pain is the American Medical Association Guidelines on Chronic Pain (“AMA Guides”). While the test in the AMA Guides is not binding or definitive, this Tribunal has long held that it provides a helpful tool for the evaluation of chronic pain. This test establishes that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
12The applicant argues that he should be removed from MIG due to the fact he continues to suffer, three years post-accident from persisting and chronic pain and his chronic pain falls outside the framework for MIG. Also, that based on medical reports he meets five of the six AMA criteria.
13The respondent argues that the applicant lacks sufficient medical evidence to support his claim that he suffers from chronic pain with a functional impairment.
14The evidence that the applicant relies on is a chronic pain assessment by Dr. Robertus.
15The evidence the respondent relies on are General Practitioner Assessment Reports by Dr. Moolla, Dr. Mula and Dr. Hanna.
16The chronic pain assessment completed by Dr. Robertus was completed on June 3, 2022. In the assessment, the doctor performed a physical exam of the applicant and several self reported tests. The physical exams were all in the normal range. In the findings of the assessment, the doctor indicated that the applicant was positive for five of the six criteria of the AMA Guideline. In the assessment, the doctor does not make it clear how he came to that determination, what five of the six the applicant was positive for, and what if any the functional impairment the applicant had in association with this diagnosis.
17An Insurer’s Exam was completed by Dr. Moolla on May 20, 2022. This exam was a General Practical Assessment. In the assessment the applicant had a physical exam completed that was normal with no issues identified. In addition, a review of Activities of Daily Living was completed. Most activities were listed as “no difficulty”, and only sitting and using right arm were listed as “difficulty”. The applicant also reported no change to his cognitive functions or social activities. I find that Dr. Moolla’s assessment was thorough, consistent with the other medical documentation in evidence and persuasive. Dr. Moolla’s report supports the respondent’s position that the applicant is not suffering from a functional impairment due to his chronic pain.
18On May 20, 2022, Dr. Mula completed a General Practitioner Assessment Report Insurer‘s Exam. Dr. Mula completed a physical examination and an inventory of Activities of Daily Living (ADL). In this ADL, the applicant reported many more elements of decreased capability. The physical examination was normal and the doctor concluded that the injuries suffered by the applicant were sprain and strain related.
19On July 4, 2022, Dr Mula completed another General Practitioner Assessment Report. This follow-up report was to review the Chronic Pain Assessment from Dr. Robertus. The doctor’s conclusion in reviewing all available medical documentation was that his opinion had not changed. The doctor noted “Within the scope of my medical discipline, the impairment is expected to be temporary rather than permanent.”
20On May 7, 2021, Dr. Hanna completed a General Practitioner Assessment Report. During the examination there was a physical exam and a review of Activities of Daily Living. During the ADL review, the applicant noted requiring some assistance in completing some of his pre-accident activities. The physical examination of the applicant was all in the normal range. One additional test of note was Miller Forensic Assessment of Symptoms Test (M-FAST). This screening interview is used to determine the likelihood of malingering or feigning. In this test a score of six or greater suggests evidence of malingering or feigning. The applicant scored thirteen on this test. The Doctor’s conclusion was that the applicant suffered soft tissue injuries.
21Dr. Hanna completed an Insurer’s Exam on June 15, 2021. This was a General Practitioner Paper Assessment Report, and the doctor reviewed all existing medical documentation available to that point. It was Dr. Hanna’s conclusion after this review that the applicant suffered only sprain and strain injuries that he considered part of MIG.
22In applying the AMA Criteria, I find that:
i. I have no evidence of use of prescription drugs beyond duration or abuse.
ii. I have not been presented compelling evidence of excessive dependence on healthcare providers or family. In review of the applicant’s family doctor CNRs, in review of the CNRs from his physiotherapist, and self reported Activities of Daily Living, I see no evidence of excessive dependence.
iii. I have not been presented compelling evidence of withdraw from social milieu.
iv. I have not been presented compelling evidence of failure to restore pre-accident function. I note in the evidence presented that the applicant has only completed seven physiotherapy sessions, and that he has returned to work.
v. I have not been presented compelling evidence that the applicant has developed a psychological sequelae.
23In review of all the evidence and consideration of the AMA Guides for Chronic Pain, I am not persuaded by the applicant’s argument that he suffers from chronic pain with a functional impairment.
24The applicant is not removed from MIG on the basis on chronic pain with a functional impairment.
Psychological Condition
25I do not find that the applicant suffers from a psychological condition due to the motor vehicle accident.
26If the Tribunal determines that chronic pain with a functional impairment or a psychological condition exist, it may warrant MIG removal.
27The applicant argument is based on an OCF-18 completed by Mr. Kulikov CRPO, under the supervision of Ms. Kozina Psych Associate.
28The respondent argument is based on five Insurer’s Exams completed by Dr. Seon, that the applicant does not suffer from a psychological condition.
29A psychological report was completed on July 19, 2021 by Mr. Kulikov, CRPO, and supervised by Ms. Kozina Psych. associate. The report included multiple self reported tests to diagnose the applicant. All of the testing results were reported in the severe range. This included the Beck Depression Inventory, Beck Anxiety Inventory, and the Severity Measure for Specific Phobia. For the Pain Catastrophizing Scale, the applicant reported a clinically relevant level in his score. In the Pain Patient Profile, the applicant was above average in Pain Patient Depression, and Average for Pain Patient Anxiety and Pain Patient Somatization Score. Lastly, the applicant scored high on the Injustice Experience Questionnaire report, which is unfavourable for future recovery. Based on the self reports, the applicant was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressive Mood, as well as Specific Phobia, Situational Type.
30A Psychological Assessment Report was completed by Dr. Seon on May 26, 2021. The assessment included self reported psychometric testing. The Brief Battery for Health Improvement 2 was administered. This report noted the potential for exaggeration of symptoms for secondary gain. It also noted unusual level of diffuse somatic complaints, a level of pain that was unusually high, and an extreme level of perceived disability. A Pain Patient Profile concluded that the applicant was above average on the somatization scale, while his depression and anxiety scores were average. The Structured Inventory of Malingered Symptomatology screening self report showed an overall result were above the recommended cut off score and indicated that the applicant endorsed symptoms of impairment that were highly uncommon of individuals who are suffering from the specific condition measured. According to Dr. Seon, this test finding indicates a high likelihood of potential symptom magnification may be present. Additionally during the interview the applicant noted that he still participated in a wide variety of daily activities, was engaging in social activities with friends two to three days a week, denied any significant psychological impairments while driving or being a passenger in a vehicle. Dr. Seon found that there was no psychological impairments.
31On June 18, 2021 Dr. Seon completed a Psychological Paper Assessment Report. In the assessment, Dr. Seon reviewed additional documentation that had been submitted since her original assessment of the applicant. She concluded that none of the additional documentation review would alter her original opinion that no psychological impairments are present in the applicant.
32On October 19, 2021, Dr. Seon completed a Psychological Addendum Report. This report was a document review of additional medical documentation that had been submitted by the applicant. In the report, the Doctor stood by her initial assessment and was not swayed by the additional documentation.
33On November 16, 2021, Dr. Seon completed a follow up Psychology Assessment Report. This assessment involved psychometric testing. The Brief Battery for Health Improvement 2 test was administered again, and this time the applicant scored lower than 99% of patients. This shows a concern to the doctor about the accuracy of the self reports and the results my be inflated. The self report showed unusual levels of diffuse somatic complaints, a very high level of pain compared to other patients, and an extreme level of perceived disability. His scores also reported extreme depressive and anxious thought and feeling indicating suicidal ideations were present, that the applicant vehemently denied. The Pain Patient Profile the applicant scored above average for depression, anxiety, and somatic problems. During the interview, the applicant reported some nervousness while driving, but denied any significant psychological impairment that would negatively interfere with his ability to drive.
34On September 21, 2022, Dr. Seon completed an additional Psychological Addendum Report. The Brief Battery for Health Improvement 2 test was administered again, and again the applicant scored lower than 99% of patients. The doctor reiterated that this result raises questions about the credibility of the self reports. The Pain Patient Profile test results were invalid and no psychological interpretation could be provided. The Personality Assessment Inventory showed elevated scores on certain scales which identified inconsistent responses to highly similar content. These finding indicated that test finding should be reviewed with caution. In review of the content, the doctor noted;
i. Findings suggest the profile may exaggerate complaints into problems
ii. Endorsed items that present extremely bizarre and unlikely symptoms.
iii. Endorsed depressive symptomology that was unusual even in clinical samples.
Additionally, a Structured Inventory of Malingered Symptomatology screening was administered. The applicant’s overall results showed a significant degree of symptom exaggeration. Also, the test results indicated the applicant endorsed symptoms of impairment that were highly uncommon for individuals who suffer from the specific condition mentioned by each scale. Finally, the test findings suggest a high likelihood of potential symptom exaggeration. Dr. Seon concluded, “Based on results of the current psychological assessment there were no valid or objective findings to support a psychological diagnosis.”
35In review of all the evidence submitted, I find that on the balance of probabilities that the applicant has not demonstrated that he suffers from a psychological condition that would remove him from MIG.
36To 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.
Conclusion
37For the reasons noted above, the applicant remains within the MIG and its $3,500.00 limit on treatment.
The Treatment Plans
38As 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
39I find that:
i. The applicant remains subject to the MIG.
ii. The application is dismissed.
Released: August 8, 2024
________________________
Robert Rock
Adjudicator