Citation: Zamani v. Intact Insurance Company, 2025 CanLII 47348

Licence Appeal Tribunal File Number: 23-009193/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 Zamani Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Nashmil Mamresuli, Paralegal

For the Respondent: Jesse Braun, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mohammad Zamani, the applicant, was involved in an automobile accident on November 12, 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 $2,315.48 for physiotherapy services proposed by HealthMax Physiotherapy in a treatment plan submitted February 28, 2023?
3. Is the applicant entitled to $4,098.64 for physiotherapy services proposed by HydroHealth Aquatherapy and Rehabilitation (“HydroHealth”) in a treatment plan submitted March 22, 2023?
4. Is the applicant entitled to $4,499.58 for psychotherapy services proposed by HydroHealth in a treatment plan submitted January 2, 2024?
5. Is the applicant entitled to the assessments proposed by HydroHealth, as follows: i. $2,736.85 for a psychological assessment, in a treatment plan submitted March 16, 2023; and ii. $2,725.55 for a chronic pain assessment in a treatment plan dated July 11, 2023?
6. Is the applicant entitled to interest on any overdue payment of benefits?

3Three other issues were listed as being in dispute in the Case Conference Report and Order (“CCRO”) dated February 7, 2024. However, the applicant advised in his submissions that he has withdrawn his claim for those issues at this hearing.

Procedural Issue

4The respondent’s submissions reference issues not listed as being in dispute in the Case Conference Report and Order (“CCRO”) dated February 7, 2024 and not added by way of a motion. Specifically, a claim for a chiropractic treatment plan and a special award. As these issues are not properly before me, I have not considered these arguments.

RESULT

5I find that the applicant’s injuries are predominantly minor injuries that can be treated within the limits of the MIG. As the applicant is within the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable or necessary. As there are no benefits owing, the applicant is not entitled to interest.

ANALYSIS

Are the applicant’s injuries predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?

6I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.

7Section 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 of more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

8The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.

9The applicant submits he has been diagnosed with chronic pain syndrome, other specified trauma and stressor related disorder, and somatic symptom disorder with predominant pain. The applicant also states he has a pre-existing medical condition including right hernia repair, appendectomy, sleep apnea, reflux, anxiety and depression that prevents maximal recovery. He submits he should be removed from the MIG.

10The applicant relies on the clinical notes and records (CNRs) of Dr. Alireza Shakib, family doctor; OCF-3, and OCF-18s; a chronic pain assessment prepared by Dr. Grigory Karmy, chronic pain physician; and a psychological assessment prepared by Ms. Erin Langis, clinical psychologist.

11The respondent submits the applicant’s injuries are within the MIG and that he does not have a pre-existing condition that warrants removal from the MIG.

Does the applicant have chronic pain with functional impairment that would remove him from the MIG?

12I find the applicant has not established, on a balance of probabilities, that he should be removed from the MIG on the basis of chronic pain with functional impairment.

13The applicant submits that he has chronic pain and relies on the CNRs of his family doctor, Dr. Shakib of Willowdale Medical Clinic, for the period of November 2020 to February 2024, as well as the chronic pain assessment, dated August 11, 2023, completed by Dr. Grigory Karmy, chronic pain physician.

14Dr. Shakib CNRs show the doctor prescribed physiotherapy two times, home exercise three times, over the counter pain medicine three times, and psychotropics one time for muscle pain without repeat instructions since November 2022.

15Dr. Shakib’s CNRs suggest the applicant’s minor injuries were beginning to clear up by January 2023 because the applicant returned to both of his jobs, there were no complaints of pain after January 2023 and the applicant stopped physiotherapy in March 2023. During this time, the doctor noted the applicant was sleeping well, demonstrated good range of motion and did not note any concerns with his daily activity.

16Despite seeing the doctor in December and January for his accident-related pain, it was nine months later, in September 2023 when he first reported pain in his left knee from the accident. In January 2024 and February 2024, some fifteen months after the accident, the doctor noted left finger pain, lower back pain, neck pain, “left knee pain with walking or kneeling” and “affecting his daily activities”. The applicant has not addressed how he was able to return to the vast majority of his daily activities, including his return to work 45 days after the accident, how the knee pain is connected to the accident or why it was not presented in previous visits and why the back pain re-surfaced quite some time after the accident.

17I find Dr. Karmy’s s. 25 chronic pain assessment, dated August 11, 2023, is not corroborated by Dr. Shakib’s CNRs. Dr, Karmy states the applicant’s pain was exacerbated by flexion, his cervical spine, thoracic area, lumbosacral spine was non-tender, and he had bilateral knee pain and tenderness. Dr. Karmy noted prolonged sitting and twisting contribute to the applicant’s pain. However, the applicant does not explain how he was able to return to work as a driver, a job that requires prolonged sitting and twisting. The applicant also does not explain why the bilateral knee pain was not previously reported after the accident despite numerous visits to the doctor’s office. The first report of left knee pain was in September 2023, almost a year after the accident. Dr. Karmy also noted the applicant was previously diagnosed with flat feet that was “successfully treated by supportive orthotic insoles” and it was previously noted that is the more probable cause of his knee pain, not his soft-tissue injuries from the accident.

18The respondent submits the applicant only sustained injuries that fall within the minor injury definition in s. 3(2) of the Schedule. The respondent relies on the s. 44 psychological report, dated June 23, 2023, prepared by Dr. Marc Mandel, psychologist; the s. 44 paper review report, dated July 27, 2023, prepared by Dr. Babak Sharifian, general practitioner; and the s. 44 paper review report, dated October 16, 2023, prepared by Dr. Sabrina Ming-Wai Tu, general practitioner.

19About one month prior to meeting Dr. Karmy, the applicant met with Dr. Mandel on June 23, 2023. Dr. Mandel’s s. 44 psychological report noted the applicant “continues to drive for work regularly” and “he received no outside assistance in his home” and he is “currently working, watching television, social with friends, time with family, and driving.” The applicant referred to his ongoing pain and there was no reference to any limitations. Dr. Mandel noted the applicant also refused to complete the Personality Assessment Inventory (PAI) and the Multidimensional Pain Inventory Report (MPI) resulting in a lack of consistent information to determine his impairments. Dr. Mandel goes on to state “because there was a lack of consistent objective information” services beyond what is available within the MIG are not required. Dr. Mandel’s assessment corroborates what is reflected in the family doctors CNRs and that the applicant suffered minor injuries from the accident.

20I find Dr. Sharifian’s s. 44 reports dated May 26, 2023 and July 27, 2023 are consistent with the CNRs of the family doctor and suggest the applicant’s accident-related injuries are minor. Dr. Sharifian noted the applicant “declined multiple aspects of functional testing without attempt” and the applicant “does not suffer a substantial inability to perform the essential tasks of his employment or self-employment as a result of the accident.” Dr. Sharifian’s earlier report, dated May 26, 2023, noted the applicant’s functional range of motion impairments “are considered temporary in nature”. I am alive to the fact that the applicant reported to Dr. Karmy that he has difficulty providing caregiving support to his son and that he is no longer able to attend social gatherings, however, this is inconsistent with the reports prepared by Dr. Sharifian and Dr. Mandel. Dr. Mandel met with the applicant in May 2023 and Dr. Karmy met with the applicant in June 2023 and each noted the applicant remains independent in his self-care and each noted he returned to his self-employment and employment. The applicant has not demonstrated that his overall functionality has been impacted.

21Dr. Tu’s s. 44 report, dated October 16, 2023, included a paper review. Dr. Tu also assessed the applicant in-person and stated the applicant has full active range of motion of his neck, back, and left knee. Dr. Tu noted the applicant reported “his knee pain only started … in the spring 2023, and not since the subject MVA of November 2022, within all reasonable medical certainty, his right knee pain is unrelated to the subject MVA and not as a direct result of the subject MVA.” I find Dr. Tu’s report is consistent with Dr. Sharifian’s report and with Dr. Shakib’s observations of the applicant having good range of motion in the back and neck, he has no significant functional limitation due to pain, and he has demonstrated his ability to continue with both of his jobs including as a driver.

22While I am alive to the applicant’s ongoing pain, the applicant has not explained why he stopped physiotherapy or why his knee pain went unreported for over a year, and he has not submitted evidence to support his claim that his daily activities or his work was adversely affected.

23I find the applicant has not established on a balance of probabilities that he should be removed from the MIG on the basis of chronic pain with a functional impairment.

Does the applicant have a psychological impairment that would remove him from the MIG?

24I find the applicant has not met his burden to prove that he suffers from a psychological impairment that would warrant removal from the MIG.

25An applicant can be removed from the MIG if he demonstrates a psychological impairment. A psychological impairment must be more than merely clinically related sequelae of a minor injury. Psychological impairments, if established, fall outside of the MIG because the MIG only governs “minor injuries”, and the definition does not include psychological impairments.

26The applicant submits that he suffers from other specified trauma and stressor related disorder and somatic symptom disorder. After the accident, he was prescribed antidepressants and relies on the CNRs of Dr. Shakib, and the psychology report, dated August 31, 2023, prepared by Ms. Erin Langis, psychologist.

27I find the CNRs of Dr. Shakib do not establish that the applicant sustained psychological impairments as a result of the accident. I acknowledge Dr. Shakib noted a complaint of “recurrent thinking about his post MVA medical conditions” in February 2024, that was fifteen months after the accident. Dr. Shakib’s CNRs show the applicant was previously diagnosed with anxiety/depression in February 2021, September 2021, December 2021, and May 2022. Each time the applicant was prescribed a psychotropic with no refills. I find the applicant’s anxiety/depression does not rise to the level of psychological impairment.

28Ms. Langis’ s. 25 psychology report, dated August 31, 2023, noted the applicant’s condition may have deteriorated since his visit with Dr. Mandel on June 23, 2023 and he suffers from other specified trauma and stressor related disorder and somatic symptom disorder with predominant pain. Ms. Langis stated the applicant experiences “anxiety as the driver of a motor vehicle”, he “avoids driving whenever possible”, and this has compromised his ability to function. The applicant provided no explanation of why his condition may have deteriorated so significantly since his meeting with Dr. Mandel on June 23, 2023 to his s. 25 assessment on August 14, 2023. I find the applicant has not consistently reported his symptoms and place less weight on Ms. Langis’ report for this reason.

29Ms. Langis’ report also noted the applicant suffered somatic symptom disorder and the CNRs of Dr. Shakib noted the applicant had been diagnosed with sleep apnea in March 2022. In January 2023 the family doctor noted the applicant was “sleeping well” and the next complaint regarding sleep was noted in February 2024, fifteen months after the accident without explanation for this gap in reporting.

30I place little weight on the applicant’s reported “avoidance of driving whenever possible” because the first time he reported this issue was nine months after the accident and he had resumed his self-employment as an Uber driver six weeks after the accident. The applicant did not report these issues to his family doctor, Dr. Shakib, who noted the applicant is “cognitively … alert and well-oriented. Thought processes are cohesive, coherent and goal directed. No agitation. Cooperative. No hallucinations. No delusions. Good judgement.” The applicant also has not addressed how he is able to function as an Uber driver as required by his second job which he took up 45 days after the accident, although he has since stopped this work. The applicant did not submit reply submissions and provided no further explanation regarding this point.

31The respondent argues the applicant does not meet the criteria for DSM-5 diagnosis and his symptoms fall within the subclinical range with no impact to his occupational or social functioning. The respondent relies on the psychological assessment prepared by Dr. Shirley McDowall, clinical psychologist, dated February 29, 2024 and the psychological report of Dr. Mandel.

32I find Dr. McDowall’s s. 44 psychological assessment report establishes the applicant is not suffering psychological impairments due to the accident. Dr. McDowall noted the applicant “continues to maintain employment” and “he largely denied having struggled with any strictly psychological barriers that may impact his ability to perform his pre-accident daily, social and leisurely activities.” I place greater weight on Dr. McDowall’s opinion that the applicant is not suffering psychological impairments because it is corroborated by the family doctor’s CNRs and Dr. Mandel’s report.

33In sum, I find Dr. McDowall’s report and Dr. Mandel’s report do not support the findings in Ms. Langis’ report. I accept the applicant was diagnosed with anxiety and depression in February 2021, however, I place greater weight on Dr. Mandel and Dr. McDowall’s report because the applicant was inconsistent in his reporting. I am persuaded by Dr. McDowall’s and Dr. Mandel’s reports that suggest the applicant’s psychological injuries are subclinical because there was a lack of consistent presentation of his symptoms and the applicant continues to cope with his condition within the MIG.

34I find the applicant has not established, on a balance of probabilities, that he suffers from a psychological impairment that would remove him from the MIG.

Does the applicant have a pre-existing condition that cannot be treated within the MIG?

35I find that the applicant has not established, on a balance of probabilities, that he should be removed from the MIG on the basis of pre-existing conditions.

36The applicant argues that he had a pre-existing diagnosis of anxiety and depression. He relies on the CNRs of Dr. Shakib, the psychotherapy assessment prepared by Dr. Mostafa Showraki, psychiatrist; the OCF-18 for psychological treatment prepared by Nadiya Cook, social worker; the OCF-18 for psychological assessment prepared by Yana Shcherbina; and the psychological assessment prepared by Ms. Erin Langis, psychologist. The applicant has not submitted Dr. Showraki’s assessment into evidence.

37In the previous section I have addressed the applicant’s argument of a psychological impairment. The applicant was diagnosed with anxiety and depression in December 2020 and the last time he was prescribed psychotropics for his anxiety was May 2022. Dr. Shakib’s records indicate the applicant was treated for anxiety and depression in the past successfully. According to Dr. Shakib’s CNRs, he was referred to Dr. Showraki in February 2024 for a diagnosis of dysthymic disorder. The applicant has not submitted Dr. Showraki’s assessment. I agree with the respondent’s finding that his symptoms fall in the subclinical range that will not prevent him from achieving maximal medical recovery because he has previously been treated for the same issue with psychotropics, he remains social, continues with his employment and the applicant has not directed me to why he cannot be treated within the MIG.

38The applicant also refers to a previous right hernia repair, appendectomy, sleep apnea, and reflux and submits these pre-existing conditions will prevent him from achieving maximal recovery under the MIG. The applicant did not submit any evidence in support of these conditions preventing him from achieving maximal medical recovery.

39The respondent argues that the applicant’s hernia repair, appendectomy and acid reflux have not been affected by the accident. The respondent relies on the s. 44 independent general practitioner’s paper review report prepared by Dr. Tu, general practitioner. As Dr. Tu noted the applicant’s right hernia repair and appendectomy were approximately 30 to 35 years ago, and the acid reflux is from approximately 20 to 25 years ago. Dr. Tu noted these conditions “will not prevent him from achieving maximal medical recovery from his accident-related injuries”. I have reviewed the family physician’s notes, and the doctor made no reference to these issues in the CNRs. Therefore, I find the applicant has not met his burden with respect to these conditions.

40I find the applicant has not shown, on a balance of probabilities, that he has pre-existing conditions that warrant removal from the MIG.

41Having found that the applicant has not proven, on a balance of probabilities, that he has a condition that would remove him from the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.

ORDER

43The applicant is subject to the MIG.

44As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

45Given there are no benefits owed, the applicant is not entitled to interest.

46The application is dismissed.