Citation: Hussain Shah v. Economical Insurance Company, 2024 2025 ONLAT 22-011048/AABS

Licence Appeal Tribunal File Number: 22-011048/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:

Syed Iqrar Hussain Shah

Applicant

and

Economical Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR:

Brett Bell

APPEARANCES:

For the Applicant:

Daniella Cohen, Paralegal

For the Respondent:

Pamela Vlasic, Counsel

HEARD:

By way of written submissions

OVERVIEW

[ 1 ] Syed Iqrar Hussain Shah, the applicant, was involved in an automobile accident on August 3, 2021, 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.

ISSUES

[ 2 ] The 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 lnjury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $199.91 ($1,299.91 less $1,100.00 approved) for chiropractic services, proposed by Scarborough Health and Wellness Centre lnc., in a treatment plan/OCF-18 (“plan”) dated November 11, 2021?

iii. Is the applicant entitled to $3,376.51 for medical services, proposed by Scarborough Health and Wellness Centre lnc., in a plan dated March 16, 2022?

iv. Is the applicant entitled to $2,593.76 for psychological services proposed by Paramount Medical Assessments Ltd. in a plan dated March 3, 2022?

v. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Paramount Medical Assessments Ltd. in a plan dated February 16, 2022?

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

RESULT

[ 3 ] I find that:

i. The applicant has not proven, on a balance of probabilities, that he suffers from non-minor injuries. As a result, he remains within the MIG and its $3,500.00 limit on treatment.

ii. As the applicant remains within the MIG, and the MIG benefit limits have been exhausted, he is not entitled to the plans in dispute, nor interest.

PROCEDURAL ISSUE

[ 4 ] The respondent requested that the Tribunal exclude the applicant’s medical documentation submitted after the deadlines set out by in the June 20, 2023, Case Conference Report and Order (“CCRO”). The respondent also notes that the applicant failed to provide several productions entirely.

[ 5 ] By contravening the timeline in the CCRO, the respondent submits, the applicant caused it incurable prejudice. The applicant did not address the issue in their submission and did not reply to the respondent’s submission.

[ 6 ] Section 15(1) of the Statutory Powers and Procedures Act allows the Tribunal to admit as evidence any document or any other thing. Further, Tribunal Rule 9.3 of the Licence Appeal Tribunal Rules (“Rules”) provides that if a party fails to comply with a disclosure order, that party may not rely on the document or thing as evidence without the permission of the Tribunal. To determine whether a document can be allowed, I may consider a number of relevant factors, including prejudice, reasons for non-compliance, and relevance.

[ 7 ] I am admitting the evidence despite the applicant’s non-compliance with the deadline in the CCRO. The prejudice to the respondent is mitigated by the fact that the records in question are not probative of the applicant’s claims, and therefore they attract little to no weight in any event.

ANALYSIS

Causation

[ 8 ] I find that the applicant has failed to establish that he would not have sustained her impairments but for the subject accident.

[ 9 ] The applicable test in determining whether impairments were caused by the accident is the “but for” test: whether the applicant would not have had their impairments but for the accident: Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). The accident is not required to have been “the cause” – that is, the accident need not be the sole cause or have been sufficient in itself to have caused the applicant’s impairments. Rather, the accident need only to have been a “necessary cause” (Sabadash, para. 39).

[ 10 ] The applicant submits that his “accident-related injuries, various diagnoses, and ongoing complaints of pain illustrate that his injuries are not minor in nature.” In their submission, the respondent raises the issue of causation, submitting that the applicant has not provided any records to substantiate that his ongoing pain complaints are as a direct result of the accident.

[ 11 ] While I am satisfied that the applicant does suffer ongoing back pain, the applicant has not proved, on a balance of probabilities, that it is due to the August 3, 2021, accident. A review of the medical evidence indicates that the applicant had been involved in several accidents prior to the one at issue, in 2018, 2019 and 2020, all resulting in neck and back injuries. Further, the applicant submits that during a June 20, 2023, phone appointment with Dr. Niall Cronin of Sherbourne Health, Dr. Cronin observed that the applicant “has been experiencing chronic back pain for over a year.” However, that same CNR notes that the applicant shared with Dr. Cronin that his chronic pain was due to a car accident “a year ago” or in 2022, a year before the accident in question.

[ 12 ] During a September 13, 2021, appointment at Scarborough Health and Wellness, Dr. Andrea Nalli, chiropractor, suggested that the applicant suffered from spondylolisthesis at the L3/L4 level, which the applicant’s family physician, Dr. June Cheng, also observed in a subsequent evaluation. However, Dr. Cheng noted a full range of motion in the applicant’s neck and no tenderness in the cervical spine. Dr. Cheng Clinical Notes and Records (“CNRs”) also indicated that it was unclear if the L3/L4 spondylolisthesis was present before the August 20, 2021, accident.

[ 13 ] Subsequently, a diagnostic x-ray was ordered. In a follow-up appointment on September 21, 2021, Dr. Cheng confirmed that the x-ray revealed L3/L4 spondylolisthesis but indicated that it was unclear if the L3/L4 spondylolisthesis was present before the August 20, 2021 accident.

[ 14 ] As part of a s. 44 evaluation, the applicant was examined on November 25, 2021, by Dr. Howard Platnick, Family Physician. In the resulting Insurer Evaluation (“IE”) report, Dr. Platnick concluded that the applicant sustained soft tissue injuries to his neck and lower back as a result of the August 3, 2021, accident and stated that the accident caused a temporary exacerbation of the applicant’s previous neck and back pain.

[ 15 ] An MRI of the applicant’s lumbar spine was conducted on February 11, 2022. During his March 1, 2022, appointment to discuss the results with Dr. Cheng, the applicant declined exploration of further treatment for his back pain, as the “pain is much improved.” Dr. Platnick also reviewed the applicant’s MRI reports during a December 14, 2022, paper review, determining that the applicant’s spondylolisthesis was a congenital defect, and not related to the accident.

[ 16 ] I place significant weight on the findings in Dr. Platnick’s report, as they are consistent with the conclusions of the applicant’s family physician, Dr. Cheng. There is considerable medical evidence that the applicant does suffer from spondylolisthesis, but I have been presented with minimal evidence that the condition was caused by the accident.

[ 17 ] Based on the medical evidence, I find that the accident was not a necessary cause of the applicant’s impairments and I agree with the respondent that he does not meet the “but for” test for causation.

The applicant is not removed from the MIG

[ 18 ] I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from physical injuries that are not predominantly minor in nature as defined in the Schedule. Further, he has failed to prove that he suffers from chronic pain with functional impairment that would preclude recovery if held within the MIG. Accordingly, he remains within the MIG and is subject to its $3,500.00 limit on treatment.

[ 19 ] Section 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.”

[ 20 ] An 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.

[ 21 ] The applicant submits that he sustained permanent and serious impairments, including ongoing neck and back pain. The applicant further submits that he suffers from “post accident headaches two to three (2-3) times a week” along with “a decline in memory and concentration which contributes to multiple daily challenges…difficulty focusing on reading or attending to conversations, diminished problem-solving, decision-making, and organizing abilities.” He also claims to suffer from severe psychological injuries, and exacerbation of his previous injuries along with chronic pain because of the accident, which I address in separate sections.

[ 22 ] The respondent counters that the applicant sustained soft-tissue sprain/strain injuries as a result of the accident, all of which fall under the definition of minor injuries in the Schedule. Further, the respondent submits that there is no evidence of chronic pain with impairment or a psychological injury that would warrant the applicant’s removal from the MIG. The respondent contends that the applicant should be held within the MIG.

[ 23 ] Regarding neurological injuries, the applicant submits that the accident causes a “brief loss of consciousness.” In a psychological assessment report conducted by Dr. Fahimeh Aghamohseni, psychologist, the applicant also claims that the accident has resulted in cognitive impairment, including a negative impact on concentration and problem-solving abilities. Such injuries, if proven on a balance of probabilities, would remove the applicant from the MIG.

[ 24 ] However, despite this apparent significant cognitive impact from the accident, there was no pursuit of a diagnosis or treatment for neurological injuries, nor was there any mention in Dr. Cheng’s CNRs of the applicant raising any cognitive issues related to the accident. Further, Dr. Cheng did not refer the applicant for any neurological or cognitive evaluation. The applicant also does not direct me to any such evaluation, instead choosing to focus on psychological injury as their argument for why he should be removed from the MIG. Hence, I am only evaluating the applicant’s reported neck and back injuries.

[ 25 ] The CNRs of Dr. Cheng offer direct medical evidence that the applicant suffered minor injuries as result of the accident. During the first medical appointment after the accident on August 17, 2021, the applicant did not mention the accident, nor any injuries associated with the accident. During his August 20, 2021, appointment, the applicant did mention the accident, advising Dr. Cheng that the “impact was not strong,” and that he was experiencing “some tightness around neck and shoulder area.” Dr. Cheng assessed the applicant as having whiplash, which falls under the minor injury definition. The applicant was prescribed pain medication and icing the strained areas as needed. No diagnostic imaging was ordered at that time.

[ 26 ] Further, the Disability Certificate/OCF-3 dated September 13, 2021, and submitted by Andrea Nalli, chiropractor, indicates the applicant suffered “whiplash-associated disorder with a complaint of neck pain with neurological signs, sprain and strain of thoracic spine, lumbar spine and pelvis, muscle strain in the shoulder region, and pain in limb.” These injuries are consistent with the minor injury definition.

[ 27 ] For these reasons, I find that the applicant failed to prove on a balance of probabilities that he suffered more than minor injuries from the accident as defined by section 3(1) of the Schedule.

Psychological injuries

[ 28 ] I find that the applicant has not proven, on a balance of probabilities, that he suffers from a psychological condition as a result of the accident to warrant removal from the MIG.

[ 29 ] Psychological impairments are not included in the minor injury definition and a finding that applicant sustained a psychological impairment because of the accident would permit them to seek treatment outside of the MIG. An impairment is defined in section 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”

[ 30 ] As stated above, the applicant has submitted a psychological assessment report conducted by Dr. Aghamohseni, psychologist. Dr. Aghamohseni diagnosed the applicant with major depressive disorder, single episode, in the severe range with anxious distress; somatic symptom disorder, with predominant pain, persistent, at severe levels; and specific phobia, situational type, vehicular. The respondent submits that Dr. Aghamohseni relied solely on self-reports of the applicant in forming her opinion and any psychological impairments the applicant may have are not as a result of the subject accident.

[ 31 ] I place little weight on the wide-ranging diagnosis submitted by Dr. Aghamohseni. The report, largely informed by the applicant’s self reporting, states that virtually every area of his life has been negatively impacted since the accident, with the applicant suffering from nightmares, panic attacks, several cognitive issues, flashbacks, depression, anxiety, lower self-esteem, social withdrawal, decreased motivation, drastic change in appetite, weight gain, reduced sexual libido, strained relationships and withdrawal from physical activity due to the accident. Yet there is no mention in Dr. Cheng’s CNRs of the applicant raising any psychological issues related to the accident, nor did Dr. Cheng or any other general practitioner seen by the applicant refer him for any psychological evaluation. Without corroborating medical evidence from the applicant’s family physician or other general practitioners, I assign little weight to Dr. Aghamohseni’s report and diagnosis.

[ 32 ] Further, the applicant himself submits that he did not raise any psychological issues with his family physician, citing the Tribunal’s decision in Elbahja v Wawanesa Mutual Insurance Company, 2023 CanLII 116485 (ON LAT) that “just because an applicant did not complain to her family physician…about her psychological symptoms should not mean that a medical professional did not conduct an appropriate assessment or make a proper diagnosis.” However, in Elbahja the respondent in that case did not conduct or present a s. 44 assessment that contradicted the applicant’s psychological assessment. Instead, the respondent argued the absence of any reporting by the applicant to their family physician contradicted the psychological assessment. In this case, a contradictory s. 44 psychological was conducted and submitted by the respondent.

[ 33 ] Instead, I place greater weight on the IE report submitted by Dr. Arnold Rubenstein, psychologist, dated May 2, 2022. In the report, Dr. Rubenstein notes that the applicant’s responses were “relatively common in personal injury circumstances in which the individual is claiming a broad range of physical and mental health problems in order to portray disability.” Dr. Rubenstein noted that many of the applicant’s self-reported symptoms were inconsistent with the disorders suggested in the applicant’s psychological assessment.

[ 34 ] Given the lack of corroborating medical evidence before me, I agree with Dr. Rubenstein’s conclusions that the applicant “has not sustained any diagnosable psychological impairment as a direct result of the subject accident.” Therefore, I find that the applicant has not demonstrated on a balance of probabilities that he suffers from a psychological injury that would remove him from the MIG.

Chronic Pain

[ 35 ] I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain such that he should be removed from the MIG on this basis.

[ 36 ] As noted above, I have found that the applicant has failed to establish that he would not have sustained his impairments but for the subject accident. While I am satisfied that the applicant does suffer ongoing back pain, the applicant has not proved, on a balance of probabilities, that said pain is due to the August 3, 2021, accident. Regardless, there is minimal medical evidence that the injuries sustained by the applicant would meet the definition of chronic pain.

[ 37 ] As noted by the respondent, the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) provide specific criteria for evaluating chronic pain in the absence of a diagnosis. The AMA Guides state that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or 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.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

[ 38 ] The applicant has not submitted any medical evidence of abuse of or dependence on prescription drugs or other substances as result of the accident or an excessive dependence on health care providers or family members. Further, the applicant has stated that he routinely works 40-50 hours a week at the same occupation he held prior to the accident. The submitted CNRs also indicate that the applicant plans to return to physical exercise, including use of a treadmill and weights.

[ 39 ] I find on a balance of probabilities that the applicant has failed to demonstrate that the August 2021 accident resulted in chronic pain.

[ 40 ] As the applicant has been found to remain within the MIG and its $3,500.00 limit on treatment has been exhausted, the applicant is not entitled to the treatment plans in dispute, or interest.

ORDER

[ 41 ] I find that:

i. The applicant has not proven, on a balance of probabilities, that he suffers from injuries that are not defined as minor in the Schedule. As a result, he remains within the MIG and its $3,500.00 limit on treatment.

ii. As the applicant remains within the MIG, and the MIG benefit limits have been exhausted, he is not entitled to the plans in dispute, nor interest.

iii. The application is dismissed.

Released: January 13, 2025

Brett Bell

Adjudicator