Goralwalla v. Allstate Insurance Company of Canada, 2022 CanLII 109491

Citation: Goralwalla v. Allstate Insurance Company of Canada, 2022 ONLAT 20-007243/AABS

Licence Appeal Tribunal File Number: 20-007243/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:

Ebrahim Goralwalla

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Jeffrey Shapiro

APPEARANCES:

For the Applicant: Agal Lankeswaran, Paralegal

For the Respondent: April Snow, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ebrahim Goralwalla (“E.G.”) was involved in a June 5, 2018 automobile accident. He sought benefits under the Schedule,¹ from Allstate Insurance Company of Canada (“Allstate”) which Allstate approved within the Minor Injury Guideline (“MIG”). When Allstate denied E.G.’s requests for further treatment and a non-earner benefit (“NEB”), E.G. applied to this Tribunal to dispute the denials.

2I find that E.G.’s knee injury is not defined as a “minor injury” under the Schedule, based on the diagnosis provided by Allstate’s independent examiner. E.G. has not established, however, his entitlement to the requested treatment or NEB.

ISSUES

3The issues I must decide are:

1. Is E.G. entitled to a non-earner benefit of $185.00 per week from January 10, 2019 to December 13, 2020?
2. Are E.G.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
3. Is E.G. entitled to $2,564.96 for physiotherapy, recommended by Midland Wellness Centre (“Midland”) in a treatment plan/OCF-18 (“plan”) submitted on February 18, 2019?
4. Is E.G. entitled to $2,269.34 for physiotherapy, recommended by Midland in a plan submitted on March 27, 2019?
5. Is E.G. entitled to $1,995.33 for psychological treatment, recommended by Midland in a plan submitted on April 3, 2019?
6. Is E.G. entitled to $1,973.72 for chiropractic and physiotherapy treatment, recommended by Midland in a plan submitted on August 9, 2019?
7. Is E.G. entitled to $1,678.10 for physiotherapy, recommended by Midland in a plan submitted on December 10, 2019?
8. Is E.G. entitled to interest on any overdue payment of benefits?

RESULT

4E.G. is not entitled to a NEB. E.G.’s accident-related knee impairment is not “minor” as defined by the Schedule, and thus, his injuries are not governed by the MIG or the $3,500 treatment limit. However, E.G. has not established his entitlement to the treatment plans or interest.

BACKGROUND

5E.G. was involved in a low-speed side-swipe collision on June 5, 2018. He submits that he suffered whiplash type injuries to his back, neck and shoulders (collectively “back”) and pain in his knee, all of which cause him a complete inability to carry on a normal life and now cause him chronic pain, although to date he has not missed any work.

6E.G. advised that he did not have any significant symptoms until one week after the accident when his left knee “gave out” playing soccer. Weeks later, on June 30, 2018, he first sought treatment with a physiotherapist at Midland, and was examined once by a doctor with GTA Doctors on July 1, 2018, who diagnosed “MVA whiplash”. E.G. treated at Midland over the next year (June 30, 2018 to July 31, 2019) mostly for his back issues, with a last visit on November 27, 2019. The treatment plans in issue were all submitted by Midland in 2019.

7There is then a gap in treatment until E.G. attended treatment with Dr. Vaid, a family physician, between January 12, 2021 to June 30, 2021, complaining of knee pain from the accident. In January 2021, Dr. Vaid ordered diagnostic tests of E.G.’s knee and referred E.G. to an orthopaedic surgeon. E.G. was also examined by Dr. Khan on behalf of Allstate in May 2019 and in August 2021.

MOTION TO EXCLUDE EVIDENCE

8Allstate requests that I strike some of E.G.’s evidence. The background is that in January 2021, the Tribunal ordered that all documents to be used in this hearing must be exchanged by April 9, 2021, and if not exchanged by then, they cannot be used. E.G. submissions, however, rely on documents produced significantly after that deadline. Allstate requests that I strike those documents.

9With a limited exception, I agree and strike the following as non-complaint with the Tribunal’s order: (1) Midland records. These were first produced with E.G.’s submission on October 6, 2021, despite E.G. last attended Midland two years earlier in November 2019; and (2) Dr. Vaid’s records relating to April 13, 2021 to August 26, 2021. These were not produced until August 30, 2021. However, I will consider Dr. Vaid’s records from prior to that period and those records which were referred to by Dr. Khan, who conducted the insurer’s examination.

10E.G. has not explained the 2-year delay in producing Midland’s records or replied to Allstate’s motion. Had an explanation been provided and the overall timing of E.G.’s document disclosure shown compliance with the Order, I would consider allowing Dr. Vaid’s records that relate to visits occurring after the disclosure date as they could not have been previously produced. I also note that the stricken records were produced after Dr. Khan’s second addendum report, one of which was an in-person assessment, which prejudices Allstate’s ability to respond to them. That said, I had reviewed the records, and while I come to my findings without them, I do not find they would have changed the result.

ANALYSIS

Has E.G. established that he is entitled to a non-earner benefit?

11No. Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person that suffers “a complete inability to carry on a normal life” as a result of and within 104 weeks after the accident, while s. 3(7)(a) defines a “complete inability” 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.” The guiding principles for NEBs are discussed in Heath v. Economical, 2009 ONCA 391, which focuses on a comparison of an applicant’s pre-and post-accident activities. The insured must establish entitlement to the NEB, and all benefits, on a balance of probabilities.

12E.G.’s NEB claim falls short on procedural and substantive grounds. Procedurally, E.G. confirmed to Allstate that he withdrew his NEB claim and the case conference order does not list it as an issue, and accordingly, Allstate did not secure an IE on the NEB. Thus, without the parties’ consent, I may not decide it as doing so would violate the Order, the parties’ agreement, and principles of natural justice and procedural fairness². Likewise, s. 36(3)(c) provides that an applicant is not entitled to a NEB for any period prior to submitting a Disability Certificate. Yet, no Disability Certificate endorses E.G. suffered a complete inability.

13Aside of those procedural bars, substantively, the submissions do not establish a complete inability. No medical opinion supports it at any time, nor has E.G. provided a meaningful pre-and post-accident picture of his activities. The evidence merely shows some changes to E.G.’s “ordinary activities”, but well short of a complete inability. For instance, E.G. still carries the laundry albeit in smaller loads, plays with the children, drives and is employed. He also advised Dr. Khan that he used to do 40% of housekeeping and still does.

Does the evidence establish that any of E.G.’s injuries are not “minor injuries” and thus not subject to the $3,500 treatment limit?

14Yes. Section 18(1) of the Schedule provides that medical 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.”³

15E.G. submits that he has psychological, back and knee conditions, each of which are not deemed minor. Allstate submits the opposite, and that they may not even be accident related. I note that E.G. only produced the note of the single visit with the doctor at GTA Doctors on July 1, 2019 and then some notes of Dr. Vaid in 2021 in support, but no report or letter opining the injuries are not minor.

16First, as for E.G.’s claim that he suffered a psychological impairment, Allstate submits that the evidence does not establish that E.G. suffered one. I agree. In fact, there is an absence of evidence of a psychological condition, such as complaints of depression to a family doctor or an inability to work or drive. Thus, E.G.’s argument is entirely based on a pre-screen assessment report by Dr. Kaya Quinsey, psychotherapist, which provisionally diagnosed an “Adjustment Disorder with Mixed Anxiety and Depressed Mood; and Specific Phobia, Situational (driver/passenger-related)”. However, that report is contained in the Midland documents which I have struck. Given the late service, Allstate has not had an opportunity to conduct its own assessment.

17Even if I consider the pre-screen report, the report is not persuasive. The “report” appears in the Midland notes but is not dated or signed and appears to be the body of a report without a cover page. The body of the report does say the interview took place on April 1, 2019. Moreover, it’s simply a limited pre-screen evaluation, rather than a full assessment, unsupported by psychometric testing. Some of the history also conflicts with the history provided to Dr. Khan.

18Second, E.G. submits that he suffered back injuries that (1) are “not…minor in nature”, and (2) in any event, his back injuries now cause his chronic pain which is a related condition that is also not defined as minor. However, E.G. does not explain how any of the records establish his back injuries are not minor. In fact, the evidence points to the opposite conclusion. For instance, the initial treatment, such as the diagnosis of GTA Doctors and the disability certificate, reference whiplash and/or strains and sprains, which are defined as “minor”.

19Likewise, there is also extremely limited evidence to point to a significant chronic pain issue, emanating from the back issues. For instance, there is the extensive gap from the initial treatment until Dr. Vaid examined E.G. three and half years after the accident, which visit appears to be motivated by the knee. Similarly, E.G. recently advised Dr. Khan that his back pains were much improved, but his knee was still causing him pain and problems. Thus, even accepting that he has some ongoing back pain, the evidence does not establish that the severity and continuity have caused chronic pain issues to be no longer defined as “minor”.

20Third, E.G. submits that his knee injury, and chronic pain from it, are not “minor”. I agree that his knee injury is not minor, and thus make no finding on this chronic pain complaint. The key evidence in support of his claim is not from the records he has submitted, but it is actually the three assessment reports by Allstate’s assessor, Dr. Khan. Dr. Khan had the benefit of in person assessments in May 2019 and August 2021, and review of various records including an MRI.

21Dr. Khan opined that E.G.’s accident-related diagnosis are (1) SI⁴ Joint dysfunction, left-sided, (2) Meralgia paresthetica, left-sided; and (3) Left-knee contusion. His reports strike me as supported by the evidence, fair, balanced and thorough, and they are unopposed, and thus I accept his diagnosis and opinions and recommendations on treatment.

22While Dr. Khan opines E.G.’s knee and back injuries are minor under the Schedule, the Tribunal has found that meralgia paresthetica (also known as lateral femoral cutaneous nerve entrapment) is not defined as minor.⁵ The Tribunal noted that conditions involves a nerve entrapment that causes numbness and pain. Perhaps the nerve entrapment explains why E.G. is still experiencing knee pain and that his knee “locks” in the morning.

23Thus, to be clear, I fully accept Dr. Khan’s medical opinion, but disagree with how he applied this medical diagnosis of E.G.’s knee to the legal definition under the Schedule. The Tribunal has previously noted that “while medical experts may directly opine on how their medical findings apply to the applicable [legal standard or] test as an assistance to the Tribunal, ultimately the application of the legal test to the medical and other evidence is for the Tribunal.”⁶

24I do not accept E.G.’s submission that Dr. Vaid’s records provide “compelling evidence” that E.G.’s injuries are not minor, but I do find that the records which were timely produced and/or relied on by Dr. Khan, are consistent with Dr. Khan’s records and provide some support for Dr. Khan’s diagnosis. For instance, they show the visits three years after the accident were motivated by the knee pain, Dr. Vaid appears to accept the on-going nature of the knee complaints, that they are accident related, and they warranted diagnostic testing and even a referral to an orthopaedic surgeon for a consult.⁷ Beyond that, Dr. Khan’s records are more useful as they are a full assessment, with a detailed report.

25I do not accept Allstate’s submission that E.G.’s knee issues were caused by a soccer game a week after the accident, rather than by the accident. Allstate relies on E.G.’s comment to Dr. Khan in the May 1, 2019 assessment and confirmed in the August 23, 2021 re-assessment that he did not have any significant symptoms until one week after the accident when his left knee “gave out” playing soccer. There is some appeal to Allstate’s argument, yet Dr. Khan was fully aware of that history – he’s the one that recorded it – yet he did not make Allstate’s inference. In fact, he appears to have no doubt that E.G. was still suffering from accident-related issues in his knee albeit not a severe level.

26I see no reason accept Allstate’s argument on causation when Dr. Khan, its own assessor, did not have causation concerns. Dr. Khan’s reasoning on causation may be that the history was not of a soccer injury, such as a twisted knee, but that it “gave way” just a week after the accident. Regardless, it’s clear that Dr. Khan records no concerns of feigning or anything unusual in the physical examination. He found the exam, history and records were consistent. He found some tenderness over the iliotibial band and reported decreased sensation to pinprick, but “there were no significant objective findings on the physical examination. The complaints correlate with the soft-tissue injuries sustained in the subject accident.” He noted “no significant objective accident-related physical impairments…only limitations secondary to soft tissue pain.”

27I note that Dr. Khan was not asked if E.G. suffered from chronic pain. Yet, his report describes that regarding E.G.’s knee, E.G.’s functional limitations are not great, but he appears to accept that E.G. has some, such as not returning to sport activities and alteration with how he plays with his children, and the need for continuing exercises, all over three years post accident.

28Dr. Khan also felt that E.G. should continue with his independent home exercises targeting his lower limbs, as well as his core. He opined passive modalities in a clinical setting at this point in time – for his knee or his back – are not expected to confer any additional benefit to his recovery. Rather, he believes, E.G. should continue performing his home exercise routine.

29In conclusion, I find that E.G. does not have a psychological or pre-existing injury to remove him from the MIG, and his back injuries are minor in nature, and have not been established to cause more then occasional lingering pain. However, Dr. Khan’s report and diagnosis establish that his knee impairment is not minor in nature. Given that finding, I make no finding if E.G.’s remaining knee pain is considered “chronic pain” under the caselaw.⁸

Is E.G. entitled to the requested treatment or assessments?

30No. To receive payment for the treatment under s. 15 and 16 of the Schedule, E.G. must establish on a balance of probabilities that it is “reasonable and necessary” (or “necessary” for short unless the context requires otherwise) as a result of the accident. To do so, he must identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable. In the case of plans seeking an assessment, the applicant must show that it is necessary to investigate the condition.

31Again, E.G.’s claim falls short under both procedural/technical and substantive grounds. Procedurally, Allstate points out E.G. has not submitted the four treatment plans being sought. Although E.G. had the right to file a reply or perhaps simply file the missing treatment plans, E.G. has chosen not to do so. Similarly, the submission did not argue why the treatment or assessment requested in the plans is necessary, such as identifying the goals of the treatment, etc.

32Nevertheless, it does appear that Dr. Khan did have the treatment plans. He opined that the plans for physical treatment (i.e., Issues 3, 4, 6 and 7) were not necessary, and as noted above, he felt that on-going facility-based treatment would not be useful. Rather, he felt that applicant should continue with self-directed stretching exercises.

33As for Issue 5 ($1,995.33 for psychological services), the case conference order lists this plan as seeking treatment, yet the parties discuss this plan as if it was seeking an assessment. In either event, it is not necessary, because (1) E.G. has not established that he has a psychological condition, as explained above, and (2) there is a lack of evidence to establish that it was necessary to investigate if he has a psychological condition.

34Thus, regardless of whether E.G. is or not subject to the $3,500 limit, he has not established that any of the proposed treatment is reasonable or necessary.

ORDER

35E.G. is not entitled to a non-earner benefit. The evidence established that he suffered an accident-related impairment which is not “minor” as defined by the Schedule, and thus, his injuries are not governed by the MIG. However, E.G. is not entitled to any of the treatment plans or interest. The application is allowed, in part.

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10.
2. 2See Intact Ins. Co. v. Lanziner-Brackett, 2018 ONSC 6546, para. 16-24 (the adjudicator’s unilateral altering of the preliminary issue from its listing in the case conference order was a breach of procedural fairness).
3. 3Arguments under s. 18(2), which deals with documented pre-existing medical conditions removing an applicant from the MIG, are moot given my finding that E.G.’s knee injury is not minor. Moreover, E.G.’s submissions are devoid of any evidence that he had a relevant pre-existing issue.
4. 4Sacroiliac joint.
5. 5C.D. v Aviva Insurance Company, 2020 CanLII 30414 (ON LAT)(Adjudicator Reilly), at paras. 12-15.
6. 6See L.P-C. v Aviva Ins. Canada, 2022 CanLII 94806 (ON LAT)(Reconsideration Decision), at para 45.
7. 7The orthopedic assessment appears to available under OHIP funding. As of the submission date, it had not taken place.
8. 8Sidhu, 2020 CanLII 94816 (ON LAT), at para 16; Carreiro v Wawanesa Ins., 2022 CanLII 8662 (ON LAT), at para. 12 & 20; Tyndale v Primmum Ins. Co., 2022 CanLII 1141 (ON LAT), at para. 2 & 23.