Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-007187/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:
Nor Ahmad
Applicant
and
BelairDirect
Respondent
DECISION
VICE-CHAIR:
Jeffery Campbell
APPEARANCES:
For the Applicant:
Alim Ramji, Counsel
For the Respondent:
Gurpreet Singh, Counsel
HEARD:
In Writing
OVERVIEW
1Nor Ahmad, the applicant, was involved in an automobile accident on August 8, 2019 (the “MVA”), 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, BelairDirect, 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 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $3,790.71 for psychological services recommended by Dr. J. Brunshaw, and denied on July 27, 2021?
iii. Is the applicant entitled to $2,793.75 for chiropractic services recommended by Omni Health Care Solutions, and denied on November 21, 2021?
iv. Is the applicant entitled to $2,460.00 for psychological services recommended by Dr. J. Brunshaw, and denied on April 7, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent entitled to costs?
RESULT
4The applicant’s injuries do not warrant removal from the MIG.
5The applicant is not entitled to the treatment plans or interest as they are subject to the MIG.
6The respondent is not entitled to costs.
ANALYSIS
Removal from the MIG not warranted
7I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG.
8The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
9An 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 pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG.
10The Tribunal has also determined that an applicant may be removed from the MIG if they sustained chronic pain with functional impairments. They can also be removed if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of a minor injury under section 3(1).
11The applicant claims that he sustained physical and psychological injuries, including chronic pain, as a result of the injuries sustained in the MVA. The applicant also submits that he suffered from pre-existing conditions which preclude his ability to recover if kept within the MIG.
The applicant’s pre-existing injuries do not remove him from the MIG under s. 18(2)
12The applicant submits that he suffered from pre-existing low back pain which was exacerbated by the MVA. On August 21, 2019, the applicant commenced treatment at the Brant Active Rehab Centre with respect to back pain which radiated into his lower left leg. There, physiotherapist, Ms. Reshminder Shoan, diagnosed the applicant with LLE radiculopathy, mid-thoracic strain and WAD I. The applicant continued with treatment at Brant until 2021.
13The applicant obtained a family physician, Dr. Hussein Amin, in August, 2020. Dr. Amin treated the applicant for low back pain, radiculopathy and leg numbness. In his initial consult notes, Dr. Amin noted pre-existing conditions under Past Health as: “LBP [lower back pain] DDD [degenerative disc disease] and foraminal narrowing L5-S1. MVA 2019 caused LBP and radiculopathy.”
14An x-ray of the lumbar spine dated September 21, 2020, ordered by Dr. Amin, indicated chronic low back pain. The x-ray report also indicated “degenerative changes…at the level L4-L5 and L5-S1.”
15A subsequent MRI of the lumbar spine dated December 16, 2020 revealed lumbar disc bulging with associated annular fissuring at the L5-S1 level. The MRI indicated that those conditions were degenerative.
16Following the MRI of December 16, 2020, Dr. Amin referred the applicant to neurologist, Dr. Krishna Ganesan. In his consultation report, dated February 23, 2021, Dr. Ganesan advised that the applicant “has been having issues for 5-6 years with intermittent low back pain.”
17The applicant submits that his self-reporting to Dr. Ganesan as well as both the x-ray and the MRI indicate that he had the pre-existing condition of degeneration of his lumbar area. He also submits that that pre-existing condition precludes him from recovering under the restrictions of the MIG.
18The respondent submits that the applicant has failed to provide any material evidence that he suffered from a documented pre-existing condition that would prevent him from achieving maximum medical recovery if subjected to the limits of the MIG.
19I disagree with the respondent in that With respect to whether the applicant had any pre-existing conditions, the x-ray of September 21, 2020 as well as the MRI of December 16, 2020 attest to degenerative conditions in the applicant’s lumbar and sacral areas. The fact that the conditions are degenerative establish that the conditions developed over a period of time, and very likely pre-dates the MVA.
20The question remains is whether those pre-existing conditions preclude the applicant’s ability to recover if kept within the MIG.
21The applicant attended an Insurer Examination conducted by Dr. Charanjit Sandhu, Occupational Medicine Physician, on October 26, 2021. In his Physician Assessment Report, Dr. Sandhu concluded that “the focus [the applicant’s] rehabilitation should now be on an active independent exercise program.”
22In his consultation report of February 23, 2021, Dr. Ganesan states that, “[The applicant] is doing some home based exercises he found on YouTube as he did not find physio helpful.”
23I note that the applicant has not submitted any further medical evidence that establishes the necessity of physical treatment that would surpass the limits of the MIG which would be beneficial in his physical recovery. As such, I find that, while the applicant has a pre-existing condition that may have been aggravated by the injuries sustained in the MVA, he has failed to establish that those pre-existing conditions preclude his ability to recover if kept within the MIG, which is the requirement for removal from the MIG under s. 18(2) of the Schedule.
The applicant has not proven that he has chronic pain which would warrant his removal from the MIG
23As noted, an applicant may be removed from the MIG if they suffer from chronic pain with functional impairment as a result of the accident.
24The applicant submits that he continues to suffer from chronic pain as a result of the accident. The applicant submits that the x-ray of the lumbar spine dated September 21, 2020, ordered by Dr. Amin, indicates chronic low back pain.
25The respondent submits that the applicant has failed to establish that he suffers from chronic pain.
26Both the applicant and the respondent rely upon the Tribunal’s analysis in 17-007825 v. Aviva Insurance Company Canada, 2018 CanLII 98282 with respect to the test for establishing the condition of chronic pain. Both agree that the applicant’s claim for chronic pain should be assessed against the six criteria described in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment, 6th Edition, which state that at least three of them must be met for a diagnosis of chronic pain:
Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances
Excessive dependence on health care providers, spouse, or family
Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain
Withdrawal from social milieu, including work, recreation, or other social contracts
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
Development of psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression or nonorganic illness behaviours
27Although the Schedule does not require me to consider the AMA Guides’ criteria in relation to chronic pain, I accept the AMA criteria as a valuable interpretive tool in assessing the applicant’s claim of chronic pain.
28The applicant submits that he meets three of the stated criteria. The applicant submits that, as per criteria 4 and 5, he has withdrawn from his employment as a painter, and has withdrawn socially from family and friends. The applicant submits that his vocational and social withdrawal is noted in both an Independent Psychological Report commissioned by the applicant dated July 2, 2021 by psychologist Dr. Jacqueline Brunshaw (the “Brunshaw Report”) as well as in an Insurer Psychology Assessment Report dated July 16, 2021 conducted by psychologist Rod Day (the “Day Report”).
29The applicant submits that he also meets criteria 6 based upon the diagnosis by Dr. Brunshaw of Adjustment Disorder with Anxiety, Major Depressive Disorder and Specific Phobia (driving, being a passenger, being a pedestrian). The Day Report also notes the applicant’s self-reporting of low moods associated with his accident-related pain as well as his poor concentration.
30The respondent submits that the applicant does not meet three of the criteria to support chronic pain as provided by the AMA Guidelines. The respondent states that the applicant is not reliant on prescription drugs beyond the recommended period, is not excessively reliant on healthcare providers or family and he remains independent with respect to personal tasks. With respect to the applicant’s inability to return to his profession, the respondent submits that the evidence indicates that the applicant has been unemployed since 2015 (four years pre-MVA). Lastly, the respondent submits that there is no medical documentation which refers to the onset of chronic pain over time.
31I find that the arguments of the respondent are more persuasive than that of the applicant for the following reasons.
32Firstly, although the applicant’s self-reports of withdrawal from social activities are documented in the medical records, the evidence also establishes that he continues to maintain a healthy relationship with his family.
33Secondly, regarding a return to his employment, while the applicant reported to Dr. Brunshaw that he “had worked full-time as a painter with EDOS Painting Company for a few months”, the applicant reported on the Application for Accident Benefits (OCF-1) that at the time of the MVA he was self-employed as a painter for one month. The applicant provided no financial or employment documentation in order to establish that he, indeed, was employed on an ongoing basis as a painter prior to the MVA.
34Thirdly, while I note that the Brunshaw Report does note psychological sequelae (depression, anxiety, vehicular fear and somatic pain), this alone does not reach the level of establishing chronic pain as elucidated by the AMA guidelines because three of the six criteria are required.
35Finally, and most importantly, the only mention in the medical records of the applicant’s pain being chronic is the notation in the x-ray report of September 21, 2020. The applicant’s family doctor did not query as to whether the applicant suffered from chronic pain, nor did he refer the applicant to further assessments regarding chronic pain.
36Given the above, I find that the applicant does not meet the definition of chronic pain.
The applicant does not have a psychological impairment which warrants his removal from the MIG
37As noted, an applicant may be removed from the MIG if they have sustained a psychological impairment.
38The applicant relies upon the Brunshaw Report dated July 2, 2021 in which Dr. Brunshaw concluded the following:
“It is our opinion that Mr. Ahmad’s current presentation is consistent with the DSM-5 criteria for the following diagnoses:
Adjustment Disorder with Anxiety
Major Depressive Disorder
Specific Phobia (driving, being a passenger, being a pedestrian).”
39Dr. Brunshaw further stated, “It is our opinion that Mr. Ahmad’s current diagnoses are a direct result of his MVA on August 8, 2019…”. She concluded: “Mr. Ahmad is experiencing significant psychological and emotional symptoms as a result of his MVA that fall outside of the Minor Injury Guideline.”
40The respondent relies upon the Day Report dated July 16, 2021, in which Dr. Day concludes that the applicant has “no accident-related psychological condition that takes Mr. Nasir [Dr. Day’s spelling] outside the MIG”. He further stated that “No psychological treatment is required as there is no accident-related psychological impairment. Moreover, Mr. Nasir does not believe he requires psychological intervention.”
41The appellant submits that the conclusions of the Day Report should not be considered as Dr. Day was unable to complete one of the psychological tests due to language issues on the part of the applicant.
42The respondent submits that the conclusions of the Brunshaw Report should not be accepted as Dr. Brunshaw was the author of the Treatment Plan which originally recommended psychological treatment.
43I am not persuaded by either of the positions of the applicant and the respondent. I do not find that the incompletion of one of Dr. Day’s tests completely negates his conclusions (which conclusions he reached taking the incompletion of the test into account). Neither do I find that the author of a Treatment Plan is disqualified to assess an applicant on the medical condition that is the subject of that Treatment Plan. Indeed, a common argument against the approval of a Treatment Plan by an insurer is that the author of that Plan provided no other medical evidence in support of the recommended treatment other than that on the Plan itself.
44What I do find persuasive, however, is that there is no record of the applicant having raised the issue of any psychological or mental difficulties arising from the MVA with his treating medical professionals. Subsequently, no treating professional referred the applicant for either a psychological assessment or treatment. Absent those complaints of mental or psychological difficulties, I conclude that the applicant did not sustain any psychological injuries arising from the MVA. I conclude that the applicant does not have a psychological impairment which warrants his removal from the MIG.
Conclusion regarding the MIG
45As I find that the applicant has no pre-existing conditions which preclude his ability to recover if kept within the MIG, does not meet the definition of chronic pain and does not have a psychological condition which would warrant removal from the MIG, I find that the applicant’s injuries do not warrant removal from the MIG.
The Treatment Plans
46I have concluded that the applicant’s injuries do not warrant removal from the MIG. As the Tribunal has been advised that the amount remaining of the $3,500.00 limit for the MIG is $795.05 and as the amount of each Treatment Plan exceeds that amount, the applicant not entitled to the treatment plans in dispute, or interest, so an analysis of whether the benefits in dispute are reasonable and necessary is not required.
Costs
47The respondent requests costs in this matter.
48Rule 19.1 of the Licence Appeal Tribunal Rules provides that a party may make a request to the Tribunal for costs where that party believes that another party has acted unreasonably, frivolously, vexatiously or in bad faith.
49Rule 19.3 requires that a submission on costs shall set out the amount being requested.
50Rule 19.4 requires the requesting party to set out the particulars of the other party that are alleged to be unreasonable, frivolous, vexatious, or in bad faith.
51The respondent claims that the applicant has failed to establish that his injuries fall outside of the MIG, that he has suffered a psychological impairment, that the treatment plans in dispute are reasonable and necessary and/or that the applicant has incurred the expenses of the treatment plans. In short, the respondent is requesting costs on the basis that the applicant has failed to prove his case.
52The awarding of costs is not related to success in a case. It is also not related to whether one party disagrees with the position taken, or evidence submitted by an opposing party.
53In my analysis of the applicant’s case, I find that, although he failed to prove his position on a balance of probabilities, the applicant did submit, as was required, his position, with medical documentation. I find nothing unreasonable, frivolous, vexatious, or in bad faith in the applicant’s case or behaviour. Indeed, the respondent has not explained how the applicant’s case falls within the gamut of any of those criteria. The respondent has also not set out the amount being requested for costs.
54For those reasons, the request for costs is denied.
ORDER
54The applicant remains within the MIG and its $3,500.00 limit on treatment.
55The applicant is not entitled to the treatment plans in dispute.
56The applicant is not entitled to interest.
57The respondent is not entitled to costs.
Released: August 27, 2024
Jeffery Campbell
Vice-Chair