Citation: Nateri v. Economical Insurance Company, 2024 ONLAT 22-007530/AABS
Licence Appeal Tribunal File Number: 22-007530/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:
Mazaher Shams Nateri
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Peter Cimino, Counsel
For the Respondent: Pamela Vlasic, Counsel
HEARD: In Writing
OVERVIEW
1Mazaher Shams Nateri, the applicant, was involved in an automobile accident on December 13, 2020, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2On December 6, 2023, seven days before the applicant’s written submissions were due as directed in the Case Conference Report and Order (“CCRO”) dated April 6, 2023, the applicant served the respondent with various productions.
3In response on December 7, 2023, the respondent filed a notice of motion with the Tribunal seeking that the following late productions be excluded evidence at the written hearing:
i. The clinical notes and records (“CNRs”) from Dr. Seyed Dastmalchian from December 22, 2020, to February 21, 2023;
ii. The decoded OHIP Summary from December 13, 2017, to December 13, 2020;
iii. The Decoded OHIP Summary from February 6, 2021, to January 31, 2022;
iv. The Revenue Canada Income Tax Returns from 2019 and 2020;
v. The Revenue Canada Notice of Assessment from 2019 and 2020; and
vi. The Canada Revenue Agency CERB/CRB file.
4The respondent submits that it sent a request to the applicant seeking any outstanding key documents on November 15, 2022, November 30, 2022, February 22, 2023, March 10, 2023, and on March 27, 2023. Furthermore, the CCRO ordered the exchange of productions by no later than 30 days from the case conference, that deadline was May 3, 2023. Lastly the deadline in the CCRO to disclose additional items was no later than 90 calendar days after the case conference, that deadline was July 3, 2023.
5The respondent submits that the applicant’s actions cause significant prejudice, having impeded on the respondent’s ability to know the case to be met and adequately respond to the issues in dispute. The respondent submits that the applicant’s extreme delay has created a situation where there is no remedy to balance the prejudice beyond exclusion.
6On December 20, 2023, the applicant responded to the notice of motion. The applicant submits that the substance of the CNRs of Dr. Dastmalchian were disclosed in the case conference summary served on March 27, 2023, and that the respondent did not demonstrate the specific prejudice it would suffer should the CNRs not be excluded.
7Rule 9.3 of the Licence Appeal Tribunal Rules (“Rules”) states that if a party fails to comply with any direction with respect to disclosure, the party may not rely on the document as evidence without permission of the Tribunal. Rule 3.1 of the Rules also requires me to facilitate a fair, open, and accessible process to allow effective participation by all parties. Failure to make disclosures as required by the Tribunal frustrates the Tribunal’s ability to determine issues and the parties’ ability to make full and fair submissions. The respondent did make brief submissions taking into account the CNRs it sought to exclude, however it did so only with the preliminary caveat that it first sought to the CNRs to be excluded.
8I find that the applicant did not comply with the CCRO deadlines, failed to request any relief when failing to meet the CCRO deadlines, and at no time brought a motion to extend the time to deliver the productions, it was only after the respondent brought a motion that the applicant responded. I also find that the respondent complied with all deadlines in the CCRO. Despite these findings I am not persuaded by the respondent’s submission that permitting the CNRs would be prejudicial, as I am not persuaded that that the applicant impeded the respondent’s ability to know the case to be met and to adequately respond to the issues in dispute.
9As a result, I am denying the relief sought by the respondent, I will admit the documents into evidence, and accord it whatever weight that I deem appropriate in the context of rendering my decision.
ISSUES
10The following issues are to be decided:
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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $3,700.25 for chiropractic services, proposed by Doctor’s Rehabilitation clinic Inc. in a treatment plan dated June 21, 2021?
iii. Is the applicant entitled to $2,200.00 for psychological services, proposed by Doctor’s Rehabilitation clinic Inc. in a treatment plan dated October 21, 2021?
iv. Is the applicant entitled to $2,413.00 for medical services, proposed by Body Dynamics Inc. in a treatment plan dated December 7, 2021?
v. Is the applicant entitled to $2,486.00 for psychological services, proposed by Imperial Medical Assessment in a treatment plan dated January 1, 2022?
vi. Is the applicant entitled to $3,652.00 for chiropractic services, proposed by Dr. Nevin Wadehra Chiropractic Professional Corp. in a treatment plan dated December 7, 2021?
vii. Is the applicant entitled to $6,334.01 for psychological services, proposed by Imperial Medical Assessments Inc. in a treatment plan dated February 25, 2022?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
11For the reasons that follow, I find that:
i. the applicant’s injuries remain predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. the applicant is not entitled to the disputed treatment plans; and
iii. the applicant is not entitled to interest pursuant to s. 51 of the Schedule
ANALYSIS
Applicability of the Minor Injury Guideline (“MIG”)
12The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
14An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
15It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The MIG limit of $3,500.00 has been exhausted.
16The applicant submits that as a result of the accident he suffers from psychological injuries and chronic pain.
Did the applicant suffer psychological injuries that warrant the removal from the MIG?
17An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.
18In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
19The applicant relies on the psychological assessment by Ms. Sarvin Sabet Ghadam, clinical psychologist associate, dated March 4, 2022, who diagnosed the applicant with post-traumatic stress disorder, major depressive disorder, and somatic symptom disorder with predominant pain. The applicant submits that the respondent did not provide medical evidence to refute the psychological diagnosis.
20The respondent submits that the diagnosis and findings of Ms. Ghadam are flawed, as the assessment was completed virtually and based on a series of self-administered tests during one appointment. The respondent submits that there are no CNRs from any other medical treatment providers that support any psychological impairment or psychological issues as a result of the accident. Lastly, the respondent highlights that it is the applicant who bears the onus to prove on a balance of probabilities that he suffers from a psychological impairment, it is not up to the respondent to prove that he does not.
21Although Ms. Ghadam diagnosed the applicant with post-traumatic stress disorder, major depressive disorder, and somatic symptom disorder with predominant pain, I find the psychological assessment report uncompelling. The reviewed list of documentation did not include an extensive review of CNRs. Rather, it appears that Ms. Ghadam relied solely on the applicant’s self-reporting regarding his ongoing psychological impairment. Given the inherent weaknesses in this assessment report, I place little weight on Ms. Ghadam’s finding that the applicant has a psychological impairment triggered by the accident.
22While the respondent does not provide a separate psychological assessment report for my consideration, I am not persuaded that the applicant has met his onus based on a balance of probabilities. Lastly, I note that there is a lack of evidence, from the applicant’s treating physicians, at a minimum, psychological complaints or concerns.
23For all of the above reasons, I find that the applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.
Did the applicant suffer chronic pain that warrants the removal from the MIG?
24For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.
25The applicant relies on the chronic pain assessment, dated February 3, 2022, completed by Dr. Igor Wilderman, physician and the CNRs of Dr. Borna Kavousi, physiatrist, dated May 9, 2022 and July 11, 2022. Dr. Wilderman diagnosed the applicant with chronic pain syndrome. The CNRs of Dr. Borna Kavousi, reveal that the applicant was suffering from lower back pain and an MRI of the left shoulder reveals a superior labral anterior to posterior lesion and lower anterior labral tear. The applicant also relies on the September 19, 2022 CNRs of Dr. Seyed Kazem Dastmalchian, family physician, that references Dr. Fahad Al Hulaibi, orthopedic surgeon and sports fellow, statement that the applicant has chronic left shoulder pain.
26The applicant does not refer to the six criteria laid out in the American Medical Association Guides (“AMA Guides”).1 The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The respondent referred to the AMA Guides and provides arguments that the AMA Guides are not met in this case. The respondent submits that the applicant: did not provide evidence of any dependence on prescription medication or health care providers, withdrawal from physical activity, failure to restore pre-injury function, or social milieu including work, rather the applicant returned to an active lifestyle of bodybuilding and maintained a career in real estate.
27The respondent also raises the issue of causation, submitting that the applicant has not provided medical evidence to substantiate that the SLAP lesion and lower anterior labral tear of the left shoulder seen on an MRI dated July 2, 2022, is related to the accident two years prior on December 13, 2020. The respondent highlights the 15-month gap in the applicant’s medical visits to Dr. Dastmalchian, the CNRs begin again on March 1, 2022 for a non-accident related visit.
28Furthermore, the respondent relies on the CNRs of Dr. Kavousi who assessed the applicant’s left shoulder and low back on October 5, 2022. The CNRs state the applicant is a bodybuilder who returned to the gym because his physical symptoms had improved. The respondent raises concerns with the persuasiveness of the assessment by Dr. Wilderman, notably that the assessment was completed virtually, and the diagnosis was based on self-reporting.
29While I acknowledge that the applicant has a SLAP lesion and a lower anterior labral tear in his left shoulder, I am not persuaded that it was caused by the accident. Rather, the totality of the medical evidence following the accident suggests that the applicant sustained soft tissue injuries. I rely on the consistent evidence found in the emergency department assessment note dated December 13, 2020, from Sunnybrook Hospital that diagnosed the applicant with soft tissue injuries in a “minor, simple MVC”, the CNRs of Dr. Dastmalchian dated December 16, 2020, the imaging results of the applicant’s cervical and lumbar spine, left shoulder and right knee that came back unremarkable and the January 12, 2021 OCF-3 completed by Mr. Ali Nouralioi, chiropractor, which opines the applicant sustained soft tissue injuries as a result of the accident. Lastly, Dr. Seung-Jun Lee, while assessing the applicant in person on November 3, 2021, for income replacement benefits, he also concluded that the applicant sustained soft tissue injuries.
30I am not persuaded by the diagnosis of Dr. Wilderman, having found that it is not concurrent with the other medical evidence and is based on the applicant’s self-reports in a virtual forum. After considering the evidence before me, I find that there is no evidence of any impairment on the applicant’s functionality. The applicant must provide medical evidence that his accident-related injuries had a detrimental impact on his functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability. Rather, the evidence provided demonstrates an active physical lifestyle in bodybuilding and an active professional lifestyle as a full-time real estate agent.
31For all of the above reasons, the applicant has not met his onus in providing on a balance of probabilities that his chronic pain impacts his functionality and does not fit within the MIG.
THE DISPUTED TREATMENT PLANS
32The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
INTEREST
33Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest.
ORDER
34The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The treatment plans in dispute are not payable; and
iii. The applicant is not entitled to interest.
Released: September 9, 2024
__________________________
Monica Ciriello
Vice-Chair