Licence Appeal Tribunal File Number: 23-009919/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:
Mohammad Alnaasan
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Sam Moini
APPEARANCES:
For the Applicant: Mark Stoiko, Counsel
For the Respondent: Stanislav Bodrov, Counsel
Interpreter: Sura Jadir, Arabic language
Court Reporter: Prashanth Thambillai
HEARD: by videoconference: August 6 and 7, 2024
OVERVIEW
1Mohammad Alnaasan, the applicant, was involved in an automobile accident on January 9, 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, Co-operators General 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? Note: The parties agree the MIG limits have been exhausted?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 9, 2022 to date and ongoing?
iii. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for physiotherapy services, proposed by Mohannad Bakri in a treatment plan/OCF-18 (“plan”) dated April 2, 2022?
iv. Is the applicant entitled to the assessments proposed by Meditecs Independent Medical Examinations, as follows:
$3,152.70 for a functional ability evaluation assessment, in a treatment plan dated November 24, 2023;
$3,250.20 for an attendant care assessment, in a treatment plan dated November 24, 2023;
$3,856.00 for a mental health assessment, in a treatment plan dated November 24, 2023; and
$4,373.10 for a chronic pain assessment, in a treatment plan dated November 24, 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 sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury which the parties have agreed has been exhausted.
4The applicant is not entitled to a non-earner benefit.
5The applicant is not entitled to the treatment plans in dispute.
6The applicant is not entitled to an award.
7As no benefits are payable, the applicant is not entitled to interest.
ANALYSIS
Minor Injury Guideline (MIG)
8I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 funding limit on treatment, which the parties agree has been exhausted.
9Section 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.”
10An 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 injury or 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.
Chronic Pain
11I find, on a balance of probabilities, that the applicant has not demonstrated that he suffers from a chronic pain condition that warrants removal from the MIG.
12While it is not binding on the Tribunal to use the American Medical Association’s Guides (“AMA Guides”) criteria, it can serve as a useful interpretive tool in assessing an applicant’s claim for chronic pain. In this case, the applicant did not make arguments on the basis of the AMA Guides. The AMA Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs of 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; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.
13The applicant relied on evidence from St. Joseph’s Hospital where the applicant attended one day after the accident. The applicant was diagnosed with a chest wall injury and was told to take Tylenol/Advil with some vital capacity breath exercises. The applicant also relies on the clinical notes and records of his family doctor, Dr. Wasan Abbas, which show that on January 24, 2024, he complained of chest, head, back, and nose pain one week after the accident which the applicant claims to continue. Dr. Abbas recommended massage, physiotherapy, exercise, Tylenol/Advil for pain, and physical and mental rest.
14The applicant and the applicant’s father testified at the hearing. The applicant testified that he had extreme pain and was unable to attend school. Therefore, he was not able to graduate high school. He testified that he was unable go to the gym for workouts after the accident. The applicant also testified he took pain medication every day and the approved physiotherapy treatments did not help his condition.
15The applicant’s father testified that the applicant used to be able to lift heavy things and help with physical work at his family home but now is unable to. The father also testified that he took the applicant to the gym post accident to do light workouts and to use the jacuzzi and sauna. The applicant’s father testified that the applicant had resumed high school classes after the accident.
16The respondent relied on evidence from Physio Art Rehabilitation. The clinical notes and records dated January 26, 2022 and April 1, 2022 respectfully of Mr. Mohannad Bakri, physiotherapist, indicates that the applicant’s physical condition had improved. The findings were based on level of pain out of 10, 10 being most painful. After treatment the applicant’s neck pain improved from 8/10 to 2-3/10, headaches improved from 5-9/10 to 2/10, lower back pain improved from 7/10 to 5/10, right shoulder pain improved from 6/10 to 4/10, and chest pain was improving. The respondent also pointed to school records showing the applicant had poor attendance and grades and submitted that this was the reason for the applicant not being able to graduate high school, and not his accident-related condition. The respondent also submitted that the father’s testimony proves that the applicant attended the gym for light workouts which contradicted the applicant’s testimony, and also that the applicant has resumed his education.
17I find that the medical evidence does not support a finding that the applicant has chronic pain with a functional impairment that warrants removal from the MIG and does not meet the AMA Guides criteria. While I am mindful that the AMA Guides criteria for the diagnosis of chronic pain are not a definitive legal test, the applicant and applicant’s father’s testimony alongside the evidence submitted by the applicant showed limited to no evidence to satisfy 3 of the 6 requirements set out in the AMA guide to diagnose chronic pain. I find that the clinical notes and records of Mr. Bakri CNR’s showed the applicant had improved since the accident and the hospital records and the family doctor show that the applicant’s physical injuries suffered were minor in nature and diagnosed the applicant with minor injuries. I give more weight to the medical evidence because it was contemporaneous with the accident and the applicant’s testimony was at times inconsistent with the testimony of his father, specifically regarding the applicant’s post accident workouts.
18For these reasons, the applicant has not satisfied me, on a balance of probabilities, that he suffers from a chronic pain condition with a functional impairment that would warrant removal from the MIG.
Psychological Injuries
19I find that the applicant has not met his onus to demonstrate that he suffers from a psychological injury that would warrant removal from the MIG.
20The applicant testified that due to his accident-related injuries and pain he had no social life causing him to have psychological issues. The applicant’s father corroborated this statement by stating that the applicant was energetic, always helping around the house and socializing with friends two to three times a week before the accident. They would also go on fishing trips every week or every other week. But since the accident, the applicant and the applicant’s father testified these activities have diminished significantly.
21The respondent submits that there is no medical evidence to support the applicant having any psychological issues. The respondent submits that the applicant and the applicant’s father’s comments about psychological problems as a result of the accident are completely uncorroborated in the medical records.
22I am not persuaded by the applicant’s testimony or limited medical evidence. I find that the testimony at the hearing is not corroborated by the medical evidence. I find that the applicant has not been diagnosed with any psychological conditions as a result of the accident nor has he been referred to any psychological treatments by any medical professional.
23I find on a balance of probabilities that the applicant sustained predominantly minor psychological injuries as a result of the accident and is therefore subject to the MIG.
24The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury which the parties agreed has been exhausted. The treatment plans in dispute propose goods and services that fall outside the MIG. As a result, I find that the applicant is not entitled to the treatment plan dated April 2, 2022 and the four assessments dated November 24, 2023.
Non-Earner Benefits (NEBs)
25I find that the applicant is not entitled to NEBs. He has not established on a balance of probabilities that he suffers a complete inability to carry on a normal life as a result of the accident.
26Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
27Once again, the applicant relied on evidence from St. Joseph’s Hospital where he visited the day after the accident and the clinical notes of Dr. Abbas, his family doctor.
28The applicant testified that prior to the accident he was in good health and fully independent with all personal care and housekeeping tasks which included working out regularly and attending school. Since the accident, the applicant also testified of head, chest, back, and nose pain which limited his ability to do any housework, physical activities, or attend school. The applicant also testified that after the accident he was unable to socialize with friends and family, was not able to do housework, and was unable to do any physical exercise. The applicant testified that before the accident he regularly attended the gym and was doing regular housework in his family home. This was corroborated by the testimony of his father. The applicant also testified that he had a very healthy social life socializing with friends and family prior to the accident. All in which he was unable to do after the accident.
29The respondent submitted that there is no medical evidence to support NEBs after the accident and that little weight should be given to the testimony of the applicant as there were contradictions between the testimony of the applicant and the applicant’s father, which included that the applicant did do light workouts after the accident. The applicant testified that he did not work out at all after the accident.
30I find that there was very limited medical evidence supporting the applicant’s entitlement to NEBs. The applicant and his father testified that the applicant was in good health and spirits before the accident and since the accident testified that the applicant suffered physically and psychologically. As noted above, I find that the medical reports from St. Joseph’s Hospital and Dr. Abbas did not support the applicant’s submission that he has injuries that would not be considered minor in nature. I give more weight to the medical evidence because it was contemporaneous with the accident. Therefore, I find that the applicant did not present other medical evidence to support that his injuries resulted in a “complete inability to carry on a normal life”.
31I find that the applicant has not demonstrated on a balance of probabilities that those injuries and impairments resulted in a complete inability to carry on a normal life. For these reasons, I find that the applicant is not entitled to NEBs.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
Award
33As there are no benefits payable in this case and the applicant has not made submissions that show the respondent’s conduct was unreasonable, I find that the applicant is not entitled to an award.
ORDER
34The applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury which has been exhausted.
35The applicant is not entitled to a non-earner benefit.
36The applicant is not entitled to the treatment plans in dispute.
37The applicant is not entitled to an award.
38As no benefits are payable, the applicant is not entitled to interest.
Released: January 10, 2025
Sam Moini
Adjudicator