Dirie v. Belair Insurance Company Inc., 2025 CanLII 116978

Licence Appeal Tribunal

Citation: Dirie v. Belair Insurance Company Inc., 2025 ONLAT 24-000071/AABS

Licence Appeal Tribunal File Number: 24-000071/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:

Osman Dirie

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Rajiv Kapoor, Paralegal

For the Respondent: Jonathan Wong, Counsel

HEARD: By way of written submissions

OVERVIEW

1Osman Dirie, the applicant, was involved in an automobile accident on July 20, 2018, 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, Belair Insurance Company Inc., 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 limit?

ii. Is the applicant entitled to the services and assessment proposed by Rehab and Pain Management Inc. as follows:

1. $7,956.00 for other goods and services in the treatment plan dated July 18, 2023;
2. $3,300.00 for other goods and services in the treatment plan dated July 18, 2023; and
3. $2,200.00 for a chronic pain assessment in the treatment plan dated May 5, 2023?

iii. Is the applicant entitled to $4,780.48 for physiotherapy services proposed by Healthmax in the treatment plan dated June 15, 2023?

iv. Is the applicant entitled to $2,486.00 for a psychological assessment proposed by the Center for Psychological and Counselling Services in a treatment plan dated May 5, 2023?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG. The applicant is not entitled to the treatment plans in dispute, interest or an award.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

4The applicant sustained predominantly minor injuries as defined under the Schedule.

5I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) of the Schedule defines a “minor injury” 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.”

7An insured 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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. In all cases, the burden of proof lies with the applicant.

8In this matter, the applicant submits that he should be removed from the MIG because he suffers from chronic pain and a psychological condition.

a. The applicant is not removed from the MIG on the basis of chronic pain

9I find that the applicant has not proven on a balance of probabilities that he suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.

10Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

11The applicant submits that he suffers from a chronic pain condition as a result of the accident as he suffers from ongoing pain and dysfunction in his upper, middle and lower back, neck, hip and left knee. He relies upon the Initial Intake form completed by Dr. Donald Wong, physiatrist, of Shoreham Chronic Pain and Assessment Centre (“Shoreham”) dated July 25, 2018, which diagnosed him with lumbar spine facet joint sprain/strain and left anteromedial knee pain strain/sprain. The applicant submits that he attended at Shoreham on a weekly basis from July 25, 2018 to December 4, 2019, with consistent reports of lower back pain and intermittent upper back and left knee pain. The applicant further relies upon the Disability Certificate, prepared by Dr. Patricia Porco, chiropractor, of Healthmax, dated June 15, 2023, which notes he has chronic post-traumatic headaches; sprain and strain of cervical, thoracic, lumbar spine, sacroiliac joint and unspecified parts of the knee; other anxiety disorders; and nervousness.

12The applicant also relies upon the Chronic Pain Evaluation report, prepared by Dr. Nadir Al-Jazrawi, chronic pain specialist, dated July 11, 2023. Dr. Al-Jazrawi diagnosed the applicant with myofascial lumbar pain bilaterally; left knee sprain and strain, moderate depression, anxiety, post-traumatic stress disorder (“PTSD”) and chronic pain syndrome. Dr. Al-Jazrawi applied the AMA Guides and found that the applicant was experiencing pain from his accident-related symptoms for almost five years post-accident; he had developed signs and symptoms of moderate depression and anxiety; he was dysfunctional, he avoided physical activity (soccer and basketball); and he was too anxious to socialize and engage with friends and family.

13The applicant submits that the respondent’s Insurer Examination (“IE”) assessors failed to review medical evidence which addresses the chronic pain the applicant developed from the accident which has not improved with treatment within the parameters of the MIG. The applicant argues that the assessors failed to consider reported accounts and objective evidence of his chronic pain.

14The respondent submits that the applicant has produced minimal medical records since December 2019, with such productions limited to a single psychological pre-screening report prepared by Dr. Mohammed El-Saidi, psychologist, dated May 8, 2023. The respondent submits that the applicant has provided no explanation for the gap in submitted medical records and argues that if his accident-related injuries were affecting him to the extent alleged, he would have sought out some treatment in the three and a half years between the end of 2019 and mid-2023. In addition, while the applicant advised that he attends walk-in clinics, no records from any such facility have been provided.

15With respect to the Chronic Pain Evaluation by Dr. Al-Jazrawi, dated July 11, 2023, the respondent submits that the report was prepared five years post-accident. It submits that Dr. Al-Jazrawi reviewed no medical records or documents more recent than May 2019. The respondent argues that during the clinical interview, the applicant endorsed pain in his head, neck, shoulders, lower back and knee. In contrast, during physical testing, the assessor assigned a 0-pain score for the applicant’s cervical spine, shoulders, upper extremities/wrists, and hips, as well as no noted pain in the applicant’s thoracic spine and head. In addition, the respondent submits that Dr. Al-Jazrawi made various diagnoses, including psychological, which is beyond his expertise as a general practitioner.

16The respondent relies upon the IE report of Dr. Sabrina Ming-Wai Tu, general practitioner, dated September 11, 2023, which diagnosed the applicant with a thoraco-lumbar strain and left knee strain and found his injuries to be within the MIG. The respondent submits that the findings of Dr. Al-Jazrawi align with the findings of Dr. Tu. Dr. Tu noted that the applicant described greater limitation than those observed during informal observation as the applicant moved with greater range of movement, fluidity and strength on informal observation compared to formal testing. The respondent submits that Dr. Tu opined that the applicant had significant self-limitation and that he presented as “pain focused and pain-limited throughout the assessment, demonstrating inconsistencies and inorganic findings in his presentation.”

17In reply, the applicant submits that the respondent’s reference to Dr. Al-Jazrawi, as a general practitioner ignores the fact that he is recognized as a chronic pain management specialist and a leading expert in his field. He claims that Dr. Al-Jazrawi is qualified to apply the AMA Guides. In addition, the applicant submits that the respondent is neglecting to account for its repeated denials of medical and rehabilitation benefits to the applicant that have barred him from accessing treatment he needs.

18I find that the applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident. The applicant has not demonstrated that he is functionally impaired by pain. My reasoning is based on the following findings.

19I find that the applicant has provided limited medical evidence to support that he suffers from a chronic pain condition as a result of the accident. There are no CNRs provided from any walk-in clinic or family physician. Upon review of the CNRs from Shoreham, while the applicant submits that he consistently attended for treatment between July 25, 2018 and December 14, 2019, the records do not support this. I find that based on the CNRs provided, the applicant attended for a total of 13 treatments between August 8, 2018 and December 4, 2019 and there was a gap in treatment between May 14, 2019 and December 4, 2019. In addition, there is a four-year gap in any reporting of accident-related physical complaints until the Disability Certificate is provided dated June 15, 2023. I find that while the applicant submits that the gap in reporting his symptoms is due to the denial of medical treatment by the respondent, the applicant has not pointed me to the specific treatment plans that he claims were denied by the applicant prior to 2023. Therefore, I find that the applicant has not provided a sufficient explanation for the gap in reporting his symptoms between December 2019 and May 5, 2023, the date of his last treatment at Shoreham and the first treatment plan in dispute.

20I find that the applicant has not provided sufficient evidence to support that he has ongoing pain or a corresponding functional impairment as a result of the accident. The applicant’s reliance on the CNRs submitted is not sufficient evidence that he has ongoing pain or that he has a corresponding functional impairment as a result of the accident. The applicant has not provided submissions as to the specific functional impairments that he suffered as a result of the accident.

21I give little weight to the report of Dr. Al-Jazrawi and do not accept his conclusion that the applicant’s presentation satisfies three out of six of the diagnostic criteria in the AMA Guides. Dr. Al-Jazrawi states that the applicant has secondary physical dysfunction because he avoids increased physical activities such as soccer and basketball. He further states that the applicant has “withdrawn from social and recreational activities because he is too anxious or experiencing too much pain to participate in social and recreational activities with family and friends.” I find that the applicant reported to Dr. Al-Jazrawi that “he is sometimes able to participate in family or social activities because of the accident”. No further particulars were provided by the applicant with respect to his social and recreational activities and there is no medical evidence provided in support of this conclusion. In addition, there is no discussion in the report about the applicant’s functional limitations except to note that the applicant is able to manage his self-care duties and that he was not working at the time of the accident. I further find that while the applicant submits that Dr. Al-Jazrawi is a leading expert in his field and is qualified to apply the AMA Guides, the fact remains that he is not a psychologist or a psychiatrist. His application of the AMA Guides is not supported by any report prepared by a psychologist or psychiatrist and his conclusions are based on the self-reporting of the applicant.

22Accordingly, I find that the applicant does not meet three out of six of the criteria for a chronic pain condition, as outlined in the AMA Guides. The applicant does not claim to use prescription medication or any other substances. The applicant does not regularly visit with healthcare practitioners. Thus, I find that he is not dependent on them. None of the medical information before me suggests that the applicant has deconditioned due to disuse. There is no evidence that he has withdrawn from social milieu.

23For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident and therefore he is not removed from the MIG on this basis.

b. The applicant is not removed from the MIG on the basis of a psychological condition

24I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition that would warrant removal from the MIG.

25The applicant submits that he suffers a psychological impairment as a result of the accident. He relies upon the psychiatric pre-screening report completed by Dr. Mohamed El-Saidi, dated May 1, 2023, which provides a provisional diagnosis of adjustment disorder with mixed anxiety and depressed mood and specific phobia, situational. Dr. El-Saidi notes that the applicant indicated that he has not returned to work after the accident as he finds that the physical and mental strains that have resulted from it interferes with his daily functioning.

26The applicant submits that the IE report of Dr. Marc Mandel, psychologist, dated December 13, 2023, is inconsistent and provides vague and unexplained conclusions. He submits that Dr. Mandel only administered the Personality Assessment Inventory (PAI) test, the Multidimensional Pain Inventory (MPI) test, and the Structured Inventory of Malingered Symptoms (SIMS) test. He argues that none of these tests measure or test for anxiety and/or depression. The applicant further states that while Dr. Mandel does note that the applicant had adjustment issues, he entirely dismisses the clinical and psychometric findings and makes a baseless conclusion that his injuries are minor. The applicant argues that despite the applicant reporting and demonstrating symptomatology, Dr. Mandel fails to cite the relevant DSM 5-TR criteria for a diagnosis or provide any reasons for his belief that the applicant’s condition did not merit one.

27The respondent submits that the applicant has produced minimal medical records to support his psychological complaints, with such productions limited to a single psychological pre-screen in May of 2023. It submits that if the applicant’s accident-related injuries were affecting him to the extent alleged, he would have sought out some treatment or assessment of his psychological complaints prior to May of 2023. It relies upon the IE report of Dr. Mandel who opined that there was a lack of objective information that would support a substantial psychological impairment and declined to make any psychological diagnosis. Dr. Mandel notes that during the clinical interview, the applicant advised that he has not attended any psychological counselling.

28I find that the applicant has provided insufficient evidence to support that he sustained an accident-related psychological condition that would warrant removal from the MIG. Other than the psychiatric pre-screening report dated May 1, 2023, I find that the applicant has not directed me to any other medical evidence to support that he suffers from a psychological condition.

29I find that the psychiatric pre-screening report of Dr. El-Saidi lacks evidentiary weight. The report is not based on a review of the applicant’s medical records or any psychometric objective testing. Instead, Dr. El-Saidi relies solely on the applicant’s self-reports as to his clinical history and the causation of his symptoms. It is unclear what basis, other than the applicant’s self-reports, Dr. El-Saidi has for his recommendation for the applicant to undergo a psychiatric assessment.

30I find upon review of the CNRs provided by the applicant, that there is no mention of any psychological complaints throughout the CNRs. Specifically, upon review of the CNRs of Shoreham, there are no psychological complaints made. I therefore find no support in these records that the applicant was suffering from a psychological impairment. I find that the first mention of any psychological complaints is made in the pre-screening report dated May 1, 2023, almost five years post-accident. The applicant has not provided any explanation as to why no complaints were made to any medical practitioner about his psychological impairments prior to this report.

31I find upon review of the IE report of Dr. Mandel, that he completed a review of all of the medical documentation submitted on behalf of the applicant. I find that the complaints made by the applicant to Dr. Mandel are inconsistent with those reported to Dr. El-Saidi. The applicant reported to Dr. Mandel that from an emotional perspective, he is feeling “mostly happy but sometimes I can get sad”. He reported no diminished interest or lack of pleasure in his activities and no increase in feeling agitated, irritated, on edge or restless. The applicant reported that he spends time with his nieces and nephews, going out on the weekends with friends, and religious activities. I find that Dr. Mandel based his conclusion that there is a lack of consistent objective information that would support a DSM-5TR diagnosis on his clinical interview and psychological testing, in conjuncture with document review and the applicant’s presentation. I find that the conclusions and findings made in his report support that the applicant does not suffer clinically significant symptoms that indicate a substantial psychological impairment. I further find that the applicant has not provided sufficient evidence to refute the findings of Dr. Mandel.

32While the applicant is entitled to provide criticism of the IE reports relied upon by the respondent, merely stating the reasons why an IE report is deficient is not sufficient to support that he suffers a psychological impairment. The applicant is required to provide his own supporting medical documentation. I find in this matter, the applicant has failed to meet his onus.

33For the reasons outlined above, I find on a balance of probabilities that the applicant does not suffer a psychological impairment as a result of the subject accident and therefore he is not removed from the MIG on this basis.

The applicant is not entitled to the treatment plans in dispute

34As I have found that the applicant remains within the MIG, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary.

Section 20(1)(a) of the Schedule

35The respondent has provided submissions on raising a preliminary issue with regard to the application of s. 20(1)(a) of the Schedule, in respect to the two treatment plans dated July 18, 2023. As I have found that the applicant remains within the MIG and is therefore not entitled to the two treatment plans in dispute, it is unnecessary for me to consider these submissions.

Section 38(13) of the Schedule

36Section 38(13) of the Schedule provides that within 10 business days after receiving the report of an examination conducted under s. 44 for the purpose of the treatment and assessment plan, the insurer shall give a copy of the report to the insured person and to the regulated health professional who prepared the treatment and assessment plan.

37The applicant submits that the IE report of Dr. Mandel dated December 13, 2023, in relation to his entitlement to the treatment plan proposing a psychological assessment, dated May 5, 2023, was not provided to him until January 22, 2024, in direct contravention of s. 38(13) of the Schedule. The applicant submits that the report was discovered in coincidence in reviewing the disclosed Accident Benefits file provided on January 22, 2024. The applicant submits that two IE reports were prepared by Dr. Mandel. The respondent’s correspondence dated December 27, 2023, attached the report of Dr. Mandel dated December 14, 2023, denying the psychological assessment in the amount $2,486.00. However, this attached report addressed an entirely different treatment plan which proposed a chronic pain self-management program.

38The respondent submits that it responded to the submitted treatment plan within the prescribed amount of time, properly scheduled IEs and produced the resulting reports.

39I find upon review of the respondent’s document brief, that there are two IE reports prepared by Dr. Mandel, dated December 14, 2023. The first is in respect to the treatment plan proposing a psychological assessment, dated May 5, 2023, and the second is in respect to the treatment plan proposing a chronic pain self-management program, dated July 13, 2023. I find upon review of the denial letter dated December 27, 2023, that the respondent denied the treatment plan for a psychological assessment based on the IE report of Dr. Mandel, dated December 14, 2023. Under enclosures, it provided a copy of the IE report dated December 14, 2023.

40While I accept the applicant’s submissions that the respondent attached the wrong IE report dated December 14, 2023, I find that this is likely a clerical error made by the respondent by providing the wrong report with the same date. Based on review of the denial letter, I find that the intent of the respondent was to provide a copy of the IE report of Dr. Mandel that was prepared in respect to the psychological assessment. I find that the applicant was aware that separate reports were prepared by the IE assessor, yet he failed to notify the respondent of the error. The respondent’s error was subsequently rectified when the applicant received a copy of the AB file on January 22, 2024, and he was provided with a copy of both IE reports dated December 14, 2023. I find that the applicant did not raise this issue with the respondent until he provided his submissions, and he is now using this error to claim entitlement to the denied treatment plan. I do not find this is reasonable conduct on behalf of the applicant and therefore he is not entitled to the treatment plan in dispute on this basis.

41I therefore find that the applicant is not entitled to the disputed treatment pursuant to s. 38(13) of the Schedule.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

43The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant did not provide any specific submissions in respect to his entitlement to an award in his initial submissions. In his reply submissions, he submits that he is entitled to an award for unreasonably withheld and delayed payments for medical and rehabilitation benefits at a rate of 50%.

44As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

45For the reasons outlined above, I find:

i. The applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to interest;

iv. The respondent is not required to pay an award; and

v. The application is dismissed.