Safari v. Intact Insurance Company, 2025 CanLII 13557

Citation: Safari v. Intact Insurance Company, 2025 CanLII 13557

Licence Appeal Tribunal File Number: 23-005023/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:

Saman Safari

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Ahmadreza Bazyar, Paralegal

For the Respondent: Megan Murphy, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Saman Safari, the applicant, was involved in an automobile accident on April 16, 2022, 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, Intact 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:

1. 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?
2. Is the applicant entitled to $3,200.24 for physiotherapy services proposed by Essential Physio in a treatment plan/OCF-18 (“plan”) submitted June 27, 2022?
3. Is the applicant entitled to $2,153.00 for a chronic pain assessment proposed by Essential Physio in a plan submitted December 5, 2022?
4. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Essential Physio in a plan submitted September 15, 2022?

RESULT

3The applicant suffered minor injuries and can be treated within the MIG.

4As I have found that the applicant is not removed from the MIG, the disputed treatment plans are not payable. The applicant is entitled to treatment up to the MIG limits.

PROCEDURAL ISSUE

5In the case conference report and order, the parties agreed that if the applicant chose to submit an affidavit, the applicant may submit an affidavit limited to seven pages, it shall be filed and provided to the respondent within 30 calendar days of the case conference. The parties shall have the right to cross-examine the witness on the affidavit, and if so, they will retain a third-party court reporting service and exchange and file a transcript of the cross-examination with their materials for the hearing. These will be due by the final production. The respondent has not cross examined the affidavit provided by the applicant. The respondent gave no submissions for any relief sought if the applicant doesn’t file the affidavit within 30 days of the case conference.

6In the applicant’s materials, I find an affidavit consisting of the applicant’s medical records that he intends to rely on, however, it is not sworn, nor does it have any exhibits listed or proof of service. The respondent has not cross-examined the affidavit and makes no submission as to relief as to not receiving the affidavit within 30 days of the case conference. Since there is no proof of service filed, I will admit the affidavit into evidence. I will consider the applicant’s submissions as if there was no affidavit.

ANALYSIS

7I find that the applicant has not met his burden and demonstrated on a balance of probabilities that he suffers from more than minor injuries that would warrant his removal from the MIG.

8Section 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) 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.”

9An 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), that they have a documented pre-existing 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. In all cases, the burden of proof lies with the applicant.

10The applicant submits that his injuries are not minor and should not be confined to the MIG because he claims he is suffering from phobic anxiety disorders, sprain and strain of the lumbar spine, sprain and strain of the sacroiliac joint and sprain and strain at other and unspecified parts of the knee. The applicant also claims that these injuries suggest a chronic pain diagnosis. He submits he suffers from seizures as a child and claims that a psychological impairment should be a diagnosis. All these injuries should not be treated within the MIG.

Chronic Pain Diagnosis

11I find the applicant doesn’t suffer from chronic pain and can be treated within the MIG.

12The applicant submitted a plan prepared by physiotherapist, Ms. Sharmine Amiri Moghadam. The certificate of disability states that the applicant is suffering from phobic anxiety disorders, sprain and strain of the lumbar spine, sprain and strain of the sacroiliac joint and sprain and strain at other and unspecified parts of the knee. The applicant was discharged from the clinic for being non-compliant with treatment. Physiotherapist, Inez Caesar, submitted a plan that proposed 11 sessions of chiropractic treatment, massage therapy treatment and acupuncture. The applicant also submits that his medical records reveal that he was diagnosed with a seizure disorder at the age of two while residing in Iran. Although he remained seizure-free until middle school, he was evaluated at the age of 12 by Dr. Gharchi, who prescribed medication for his condition until the sixth grade.

13The applicant was seen by Dr. Borna Kavouski, MD, at Athletics’ Care Sports Medicine Centre on July 25, 2023. Dr. Kavouski stated that the applicant’s back pain was myofascial and mechanical in nature. While treatment options were discussed, the recommended treatment was to simply stretch and do strengthening exercises that the applicant could perform at home.

14Following that, the applicant discontinued treatment. The applicant then was examined by Dr. Maurice Levitan, on August 15, 2022, who recommended that the applicant must strictly and permanently refrain from sleep deprivation, as it has the potential to trigger a seizure.

15On December 5, 2022, the applicant was examined by Dr. Igor Wilderman, physician, of Essential Physio. The purpose of this assessment was to classify the applicant’s chronic pain and enable the provision of appropriate treatment. The plan states the injuries are sprain and strain of lumbar spine, injury of muscle and tendon of abdomen, lower back and pelvis and anxiety disorder.

16The applicant then attended an examination with Dr. Sabrina Ming-Wai Tu, GP, on November 6, 2022, for an in person medical examination. Dr. Ming-Wai Tu concluded that the applicant suffered with a thoracic strain and lumbar strain injury. Dr. Ming-Wai Tu noticed that the applicant’s gait was normal at the time of the assessment, and he could get up from a chair with no issues. In respect to the applicant’s back injury, there was no swelling, erythema, or deformities and appeared functional. Dr. Ming-Wai Tu’s conclusion was from a musculoskeletal perspective, the applicant has likely suffered from a thoracic strain and a lumbar strain as a direct result of the accident.

17The respondent submits in the report of Dr. Kavouski it does not justify the applicant’s removal from the MIG. Dr. Kavouski concludes that simple at home exercises are the preferred treatment option.

18The respondent also submits that the applicant saw Dr. Ming-Wai Tu on or about November 6, 2022. She states in her January 4, 2023, paper report that the chronic pain assessment is not reasonable and necessary as a result of the accident. Dr. Ming-Wai Tu states that there are no objective musculoskeletal impairments on the assessment as a direct result of the accident. Dr. Ming-Wai Tu submits the applicant has no pre-existing or concurrent medical conditions that would contribute to their current clinical presentation or prevent him from achieving maximum medical recovery from the accident-related injuries. In fact, she states that further medical intervention at this stage may further exacerbate and/or precipitate pain focused behavior, self-limitation with daily activities, inhibition of effort, and magnification of non-organic pain symptoms.

19I am persuaded by Dr. Kavouski’s findings that the applicant’s back pain is myofascial and mechanical in nature. The recommended treatment was to simply stretch and do strengthening exercises that the applicant could perform at home. The report of Dr. Ming-Wa Tu’s dated November 6, 2022, that she has assessed the applicant for his pain issues and says the chronic pain assessment is not reasonable and necessary as a result of the accident. She recommends that his injuries are minor and does not warrant removal from the MIG.

20I find that the applicant has not meet his burden that his physical injuries can be treated outside the MIG.

Psychological Injuries

21I find that the applicant does not suffer a psychological impairment that would remove him from the MIG.

22The applicant states he was examined by Dr. Maurice Levitan, on August 15, 2022, who recommended that the applicant must strictly and permanently refrain from sleep deprivation, as it has the potential to trigger a seizure.

23The applicant attended a s.44 assessor of Dr. Shari Schwartz, psychologist, who saw the applicant on or about November 28, 2022, for the purpose of an independent psychological examination. The applicant stated to Dr. Schwartz that he has a depressed mood nearly every day. He denied a loss of interest in previous activities and partakes in his activities. He stated that he has some difficulty controlling his emotions about sometimes feeling irritated easily. The applicant also felt that way prior to the accident. He stated that his appetite and sleep are normal. The applicant denied dreams of the accident. He stated that he sometimes has nightmares, perhaps one to two times a month, not of the subject accident but in general, where he denied thoughts of death or suicide. He indicated that he has not been prescribed any psychiatric medication since the subject accident. The applicant indicated that he thinks of the subject accident sometimes approximately once a month, which he said has decreased in frequency from earlier. He denied feelings of re-experiencing the accident. In respect to cognitive functioning, the applicant denied any changes in his memory since the accident to support the removal of the MIG. In terms of psychiatric history, the applicant indicated that he saw a neurologist in Iran when he was approximately eight years old, who diagnosed him with Attention Deficit/Hyperactivity Disorder as well as seizures. He stated that he was referred by his family doctor because he found it hard to concentrate for a long time. He denied any other previous psychological counselling, previous use of any other psychiatric medication, any previous inpatient psychiatric admissions, or previous or current drug or alcohol abuse. He stated that prior to the accident, he smoked marijuana two to three times a month. Several psychometric tests were performed at psychological examination.

24On the accident fear questionnaire, the applicant endorsed occasional avoidance due to fear regarding driving himself, riding in a particular seat, riding with certain drivers, and driving in certain weather conditions. No avoidance due to fear was noted for riding as a passenger, driving on certain roads, crossing the streets alone, or riding a bus or streetcar. The applicant further indicated feeling nervous before trips, but he denied easily getting upset in the car or telling the driver what to do.

25On the beck depression inventory, the applicant’s score was within the minimal range. On the beck anxiety inventory, a checklist of symptoms of anxiety, his score was at the lowest most cutoff point of the moderate range. The pain patient profile further measures symptoms of depression, anxiety, and somatic focus. This inventory also contains a validity index to detect random responding, reading comprehension difficulties or symptom magnification. The results showed valid responding. The applicant’s scores for symptoms of depression, anxiety, and somatization, were all within the below average range, as compared to the average pain patient.

26The respondent relies on the s. 44 assessor of Dr. Shari Schwartz, psychologist, to where he reviews the accident fear questionnaire that the applicant has no avoidance due to fear was noted for riding as a passenger, driving on certain roads, crossing the streets alone, or riding a bus or streetcar. On the beck depression inventory, the applicant’s score was within the minimal range. On the beck anxiety inventory, a checklist of symptoms of anxiety, his score was at the lowest most cutoff point of the moderate range. The pain patient profile further measures symptoms of depression, anxiety, and somatic focus. This inventory also contains a validity index to detect random responding, reading comprehension difficulties or symptom magnification. The results showed valid responding. The applicant’s scores for symptoms of depression, anxiety, and somatization, were all within the below average range, as compared to the average pain patient.

27The respondent does not dispute that the applicant has a pre-existing seizure disorder. In fact, it was a seizure that caused the accident. The applicant refers to medical records that sleep deprivation may trigger a seizure. However, the applicant does not explain what or why this condition precludes him from being treated within the MIG. The applicant has had this condition since he was a young child. With respect, the condition in and of itself does not justify the applicant’s removal from the MIG. There must be compelling medical evidence explaining why the seizure issue precludes recovery if the applicant is kept within the confines of the MIG. I find that there is no medical evidence that the seizures cannot be treated within the MIG.

28I find that Dr. Schwartz’s findings that he states the applicant’s anxiety is minor and his testing scores for symptoms of depression, anxiety, and somatization, were all within the below average range, as compared to the average patient. Dr. Schwartz indicated that he has not been prescribed any psychiatric medication since the accident. The applicant indicated that he thinks of the accident sometimes approximately once a month, which he said has decreased in frequency from earlier. The applicant denied feelings of re-experiencing the accident. In respect to cognitive functioning, the applicant denied any changes in his memory since the subject accident.

29I find that for the reasons above that the applicant has not met his burden of proof and on the balance of probabilities that the applicant’s injuries are predominantly minor in nature and should be treated within the MIG.

ORDER

30I find:

i. The applicant remains within the MIG and its $3,500.00 limit on treatment.

ii. The applicant is not removed from the MIG, and as of the date of the case conference report and order, the MIG limits have not been exhausted, the applicant is entitled to treatment up to the MIG limits.

iii. The application is dismissed.