Hasanishahmirzadi v Aviva Insurance Company of Canada, 2024 CanLII 108210 (ON LAT)

  [1]        Mojan Hasanishahmirzadi (“the Applicant”), was involved in an automobile accident on December 10, 2020, and sought benefits from Aviva Insurance Company of Canady (“the Respondent”) 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 and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

  [2]        The issues in dispute are:

  [3]        I find that the Applicant does not qualify for IRBs.

  [4]        The Applicant has not met her onus to demonstrate entitlement to the treatment plans in dispute.

  [5]        No interest or award is payable.

  [6]        The Applicant was the driver of a vehicle which was struck on the rear driver’s side by another vehicle merging into her lane. She sought no medical attention on the day of the accident and drove herself home from the collision reporting centre that she was brought to via tow truck. She consulted with her family physician, Dr H. Hormozdi, about a week after the accident and complained of neck pain and headaches. The Applicant was advised to monitor her symptoms and contact the clinic if anything changed.

  [7]        The Applicant followed up with Dr. Hormozdi amount a month later, on January 19, 2021, and complained of ongoing neck and back pain as well as driving anxiety. Following this telephone call, Dr. Hormozdi referred the Applicant to Dr. R. Cardan, psychiatrist, and wrote prescriptions for massage therapy, chiropractic treatment and physical therapy. However, there is no record before me, which includes a decoded OHIP summary for the relevant period, that indicates the Applicant met with Dr. Cardan.

  [8]        The Applicant engaged in treatment pursuant to the Minor Injury Guideline following the accident. Once her treatment within the Minor Injury Guideline was complete, she sought additional chiropractic and psychological treatment. The Respondent approved some additional psychological treatment but denied funding for further physical treatment and a chronic pain assessment. Additionally, the Respondent denied the Applicant’s entitlement to IRBs on the basis that she does not meet the eligibility criteria for the benefit.

  [9]        The onus is on the Applicant to demonstrate that she is substantially unable to perform the essential tasks of her pre-accident employment as a result of an accident-related impairment. After 104 weeks following the accident, the test for entitlement requires the Applicant to demonstrate she suffers a complete inability to engage in employment or self-employment for he is reasonably suited by education, training, or experience. 

[10]        To be eligible for IRBs, the Applicant must demonstrate that she meets the criteria outlined in section 5(1) of the Schedule, because she was not employed or self-employed at the time of the accident. Specifically, the Applicant must demonstrate the following:

[11]        The Applicant is at least 16 years old but was not employed at the time of the accident. Thus, she does not qualify for IRBs pursuant to section 5(1)(i).

[12]        The Applicant’s only path to entitlement to IRBs is to demonstrate that either she worked 26 of the past 52 weeks before the accident, or was receiving benefits under the Employment Insurance Act at the time of the accident and suffers a substantial inability to perform the essential tasks of employment which she spent most of her time during the 52 weeks prior to the accident.

[13]        The Applicant was not employed for 26 of the 52 weeks prior to the accident. The Applicant reports working for only one employer during the 52 week period preceding the accident. According to the record of employment from that employer, dated April 7, 2020, the Applicant was employed since 2017 and her last day worked was March 28, 2020. Accepting that the Applicant’s employment started in 2017 and carried on continuously until her last day worked on March 28, 2020, it follows that she was not employed for 26 of the last 52 weeks prior to the accident. The period from December 10, 2019, 52 weeks prior to the accident, to March 28, 2020, is less than 16 weeks. Thus, the Applicant does not meet this eligibility criteria.

[14]        The Applicant submits that she received Employment Insurance benefits, starting March 15, 2020, until September 27, 2021. The Respondent submits that the benefits the Applicant received were related to the Canadian Emergency Response Benefit (“CERB”).

[15]        I find that the Applicant was not receiving Employment Insurance benefits at the time of the accident but was receiving CERB. The Employment Insurance records provided by the Applicant appear to be incomplete and do not indicate that the benefit is paid under the Employment Insurance Act. Instead, the timing and quantum of payments reflect that of CERB - $500.00 per week, starting March 15, 2020. The Applicant had an opportunity to reply to the Respondent’s submissions that the payments were CERB, but chose not to provide any submissions.

[16]        Considering the above, I conclude that the Applicant was not received benefits under the Employment Insurance Act, nor was she employed 26 of the 52 weeks preceding the accident. Thus, she does not qualify for IRBs.

[17]        I find that the Applicant has not demonstrated that a chronic pain assessment is reasonable and necessary as a result of the accident.

[18]        The Applicant submits that a chronic pain assessment is reasonable and necessary based on the recommendation from psychotherapist H. Mirhashemian, supervised by psychologist, M. Lotfalizadeh, due to a diagnosis of somatic symptom disorder. She further submits that the IE report by Dr. C. L. Gordon, psychologist, noted her clinically significant rumination over pain and tendency to magnify the disability through catastrophic thoughts. The Applicant submits that she meets 3 of the 6 criteria for a chronic pain condition and requires the assessment to identify triggers of pain and make recommendations on ways to cope with the pain.

[19]        The Respondent submits that the Applicant does not meet the criteria for a chronic pain condition and relies on the opinions of Dr. Fung and Dr. Gordon to support its position. Dr. Fung assessed the Applicant and issued an Insurer’s Examination (“IE”) report dated November 12, 2021. In that report Dr. Fung concluded that the Applicant demonstrated no objective clinical findings to support any substantive accident related musculoskeletal, neurological, or osseous impairment. Dr. Fung, in a paper review report, dated January 18, 2022, opined that the Applicant would not meet 3 of the 6 criteria for a pain condition. Dr. Gordon, in the November 12, 2021 report, diagnosed the Applicant with Specific Phobia (driving) and Panic Disorder after conducting a clinical interview, psychometric testing, and a document review. In the paper review report, dated January 18, 2022, Dr. Gordon noted that there were no psychological symptoms identified in the chronic pain assessment plan and deferred comment on it to Dr. Fung.

[20]        I find that the presence of psychological injuries or a diagnosis of somatic symptom disorder does not automatically entitle a person to a chronic pain assessment. They must still demonstrate that they are impaired by pain. Here, the Applicant has not demonstrated that she is impaired by pain. The assessments by Dr. Fung and the CNRs from Dr. Hormozdi demonstrate that the Applicant has functional and nearly full range of motion throughout her body. The Applicant herself has identified to Dr. Fung that her predominant accident-related symptoms are that of a psychological nature, rather than physical. This is supported by the Applicant’s reports that she has maintained independence with her personal care and activities of daily living following the accident, which included a period where the Applicant was a caregiver for her mother, whom she lives with and was recovering from surgery.

[21]        It is unlikely that the Applicant meets the criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”). While it is not part of the Schedule, the Tribunal has generally accepted the AMA Guides when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription dugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability. To demonstrate entitlement to the assessment on these grounds, the Applicant ought to demonstrate that it is likely she meets three of the six criteria.

[22]        Here, the Applicant has not demonstrated she meets more than one criterion outlined in the AMA Guides. It is accepted that the Applicant developed psycho-social sequalae following the accident. However, it is not accepted, nor demonstrated, that the Applicant has withdrawn from social milieu or is dependent on healthcare providers – she reported to Dr. Fung that she was looking for work in the fall of 2021 and had not engaged in treatment for nearly three months. While the Applicant used prescription medication, there is no indication that she is using it beyond the recommended duration or that she is abusing the medication. Lastly, there is no suggestion in the medical records indicating that the Applicant has experienced secondary deconditioning due to disuse, nor is there evidence of a failure to restore pre-accident function due to pain.

[23]        I find Dr. K. Rod’s report dated May 16, 2022 to be unpersuasive and give it no weight. Dr. Day’s report provides virtually no analysis to illustrate how it was concluded that the Applicant suffers from chronic pain syndrome and 14 other chronic ailments. Nor does the report state the basis for the diagnosis of chronic pain syndrome and other chronic ailments. There is no discussion in Dr. Rod’s report regarding the criteria outlined in the AMA Guides or how it applies to the Applicant.

[24]        Having preferred the reports or Dr. Fung and Dr. Gordon over the reports by Dr. Rod and psychotherapist Mirhashemian, it follows that I find the chronic pain assessment plan is not reasonable and necessary as a result of the accident.

[25]        I find that the Applicant has not demonstrated entitlement to the unapproved balance of the psychological treatment plan.

[26]        The Respondent partially approved the treatment plan but denied funding for “education” in addition to counselling services. It maintains this position to-date and submits that the Applicant has provided no rationale as to why education is reasonable and necessary in addition to the counselling services it approved funding for. The Applicant submits the unapproved amount, attributed to education, is reasonable and necessary for her psychological care. She submits that counselling is not education and, therefore, there is no duplication of services.

[27]        It appears that the fee is an attempt to increase the effective hourly rate of the psychological services provided to the Applicant. In this case, the Applicant has provided no evidentiary basis for her claims that education, in addition to counselling, is reasonable and necessary as a result of the accident. Rather, it appears that the fees have the result of increasing the service providers hourly rate. The Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”) stipulates that insurers are not liable for any fees that have the result of increasing the effective hourly rates or the maximum fees payable for completing forms. Accordingly, I find that the Applicant has not met her onus to demonstrate that the unapproved balance of the psychological treatment plan is reasonable and necessary as a result of the accident.

[28]        I find that the Applicant has not demonstrated that the chiropractic treatment plan is reasonable and necessary as a result of the accident.

[29]        The Applicant submits that this plan is reasonable and necessary because Dr. Hormozdi recommended the modalities proposed in it on January 19, 2021. She submits that the report by Dr. Fung should hold little weight when addressing this treatment plan because the report is not contemporaneous with the submission of the plan. The Respondent submits that Dr. Fung concluded that this chiropractic treatment plan was not reasonable and necessary as a result of the accident because the Applicant demonstrated no musculoskeletal impairment from the accident. It further submits that Dr. Hormozdi’s documentation of the Applicant’s complaints does not equate to an accident-related diagnosis and does not render the plan reasonable and necessary.

[30]        I agree with the Respondent and prefer Dr. Fung’s report and find that further facility-based physical therapies are not reasonable and necessary as a result of the accident. I find Dr. Hormozdi’s recommendation to be as timely as Dr. Fung’s referral – five months prior to the plan versus five months after the plan. I prefer Dr. Fung’s assessment and report because it is made after the Applicant had the benefit of participating in treatment pursuant to the Minor Injury Guideline. Whereas Dr. Hormozdi’s recommendation occurred before the Applicant completed her treatment within the Minor Injury Guideline. As discussed previously, Dr. Fung found that the Applicant sustained sprain and strain injuries as a result of the accident and that she would not benefit from any further facility-based physical treatment.

[31]        Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having concluded that no payments are due, it follows that no payments are overdue and no interest is payable.  

[32]        The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

[33]        The Applicant has not identified any behaviour by the Respondent that resulted in the unreasonable withholding or delayed payment of benefits. Accordingly, she has not met her onus to demonstrate entitlement to an award.

[34]        The Applicant does not qualify for IRBs.

[35]        The Applicant has not demonstrated that she is entitled to the unapproved treatment and assessment plans in dispute.

[36]        No award or interest is payable.