Citation: Seddik v. The Co-Operators Insurance Company, 2021 ONLAT 19-013872/AABS

Released Date: 05/04/2021

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:

Abdalla Seddik

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Watt

APPEARANCES:

For the Applicant:

Marc Katzman, Counsel

For the Respondent:

Laura Emmett, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

1The applicant was involved in an automobile accident on November 2, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues for the hearing are:

a. Did the applicant sustain predominantly minor injuries as defined in the Schedule?

b. Is the applicant entitled to medical benefits in the amount of $1,112.31 for chiropractic services as set out in OCF-18 prepared by ARC and dated July 12, 2019?

c. Is the applicant entitled to 1% compound interest as per section 51 of the Schedule?

d. Is the applicant entitled to an award under Ontario Regulation 664 due to the respondent unreasonably withholding or delaying the payment of benefits?

RESULTS

3The applicant sustained predominantly minor injuries as defined in the Schedule.

4The applicant is not entitled to medical benefits in the amount of $1,112.31 for chiropractic services.

5The applicant is not entitled to interest as per section 51 of the Schedule.

6The applicant is not entitled to an award under Ontario Regulation 664.

BACKGROUND

7The applicant was involved in an accident on November 2, 2018. He did not attend at the hospital nor receive any medical treatment. He attended at his family doctor, Dr. Yee, four days after the accident complaining of neck and back pain, and left shoulder pain. Dr. Yee assessed him with a whiplash-type of injury to the neck, lumbar strain and contusion of the left shoulder. He referred him for physiotherapy.¹

8The applicant attended ARC on November 7, 2018 for treatment to his neck left shoulder and back. Dr. Cooper, a chiropractor, in the Treatment Confirmation Form (OCF-23) dated November 8, 2018, noted that the injuries were WAD II with complaints of neck pain, with musculoskeletal signs and sprain/strain of lumbar spine. He noted no pre-existing conditions or barriers to recovery.²

9The applicant reported to his family doctor on November 12, 2018 that both his back and left shoulder pain were improving, but that he still had ongoing neck pain and stiffness.³ On November 24, 2018, the applicant reported that his back had improved. Dr. Yee opined that the left shoulder was improving.⁴

10Dr. Cooper completed a Disability Certificate dated January 17, 2019. The injuries listed were WADII and lumbar strain. No pre-existing conditions were identified.⁵

11Four months after the accident, on March 16, 2019, the applicant reported to Dr. Yee that he was experiencing pain in the right shoulder. Dr. Yee referred the applicant to a pain clinic.⁶ The applicant saw Dr. Cooper on May 31, 2019. Dr. Cooper noted that the applicant had improved mobility, improved strength and increased independence with the exercise programme.⁷

12The applicant saw Dr. McCaffrey, an orthopaedic surgeon, on June 19, 2019 complaining that the right shoulder had worse pain than the left. Dr. McCaffrey noted a partial thickness rotator cuff tear, but it was less than 50%. He also noted that the applicant appeared to have a “Popeye” muscle deformity on the right shoulder, consistent with a long head of biceps tendon rupture proximally. There was no deformity on the left side.⁸

13Dr. McCaffrey saw the applicant again on September 24, 2019. An MRI at that time revealed proximal rupture in the right arm but did not show any rotator cuff tearing.⁹

ANALYSIS

Applicability of the MIG

14Section 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 in accordance with the MIG. 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.”

15An insured may be removed from the MIG if he can establish that his accident-related injuries fall outside of the MIG or, under s. 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if he is 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.

16The applicant submits that the applicant should be removed from the MG because he suffered a small partial thickness tear of the right infraspinatus tendon and because he had pre-accident chronic low back pain which was aggravated by the accident.

17In response, the respondent submits that the applicant’s injuries are covered under the MIG.

18I agree with the respondent and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. Dr. Yee, Dr. Cooper and the documentation from ARC all diagnosed the applicant with WADII with complaints of neck pain with musculoskeletal signs; sprain/strain of lumbar spine, and sprain/stain of the left shoulder. There is no evidence that pain in the applicant’s right shoulder was caused by the accident. The partial thickness tear falls within the MIG as it was not a complete tear. The tear has to be a complete tear to be excluded from the MIG.¹⁰ I find there is limited indication in the file that his physical accident-related impairments should be considered outside of the definition of minor injury under s. 3(1).

19With regard to s. 18(2), an applicant may be removed from the MIG if he has evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that would preclude maximal medical recovery if he is kept within the confines of the MIG. Regarding pre-existing conditions, there must be evidence that the pre-existing conditions have worsened post accident.¹¹ There is no indication that these impairments would prevent maximal medical recovery if kept within the MIG. Dr. Yee mentioned the applicant’s low back pain but gave no opinion that this pain impacted the applicant’s recovery. Dr. Cooper’s documentation confirmed that there were no prior conditions or injuries that could affect the applicant’s response to treatment for the injuries identified. I find therefore that the applicant cannot be removed from the MIG under section 18(2).

20The Tribunal has also determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. Here, the applicant’s submissions do not specifically argue for removal from the MIG based on chronic pain. I find no indication in the medical documentation that his lingering accident-related pain has become chronic in nature or is causing functional impairment required for removal from the MIG. There is also no diagnosis of chronic pain syndrome in any of the documentation, despite his consistent complaints of back pain. I find therefore that the applicant has not proven any chronic pain syndrome or any functional impairment that would remove him for the MIG.

21Accordingly, for these reasons, I find the applicant has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

Reasonable and Necessary

22Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 16 is not required.

Section 10 Award

23The applicant also sought an award under s. 10 of O. Reg. 664, submitting that the respondent has unreasonably withheld or delayed payments. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. I find an award is not appropriate because no benefits are owing.

Interest

24As no benefits are owing, no interest is owing.

CONCLUSION

25The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary. No interest is payable, and a s. 10 award is not appropriate.

Released: May 4, 2021

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