Ibrahim v. Economical Mutual Insurance Company, 2022 CanLII 6751

Citation: Ibrahim v. Economical Mutual Insurance Company, 2022 ONLAT 20-007384/AABS

Licence Appeal Tribunal File Number: 20-007384/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:

Mohamed Ibrahim

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Applicant: Mohamed Ibrahim, Applicant Jordan Palmer, Counsel

For the Respondent: Brendan Sheehan, Counsel

HEARD: In Writing By way of written submissions

OVERVIEW

1The applicant, Mohamed Ibrahim, was involved in a motor vehicle accident on February 23, 2017 and sought a medical benefit for chiropractic services. The respondent, Economical Mutual Insurance Company, denied the benefit and took the position that the applicant’s injuries were predominantly minor injuries and thus treatment of them fell within the Minor Injury Guideline (the “Guideline” or “MIG”), as defined in subsection 3(1) of the Statutory Accident Benefits Schedule – Effective after September 1, 2010¹ (the “Schedule”).

2The applicant further sought a lost educational expense in the amount of $22,460.73 for the Automotive Training Centre, which the respondent denied.

3The applicant disagreed with the respondent’s position in denying these benefits and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”).

4The applicant submits that he suffered injuries and physical impairments that take him outside of the MIG. If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary. If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule and, in turn, a determination of whether the claimed benefit is reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

5In addition, the respondent seeks repayment of an income replacement benefit (“IRB”) in the amount of $2,800.00 claiming an overpayment of the benefit for the period November 19, 2017 to January 7, 2018.

ISSUES IN DISPUTE

Applicant’s Claim

6Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and the Guideline?

7If the applicant’s injuries are not within the Guideline, or he has a pre-existing medical condition that will prevent maximal recovery within the Guideline, then I must determine the following issue:

i. Is the applicant entitled to the amount of $2,907.44 for chiropractic services recommended by Joint and Muscle as per OCF-18 dated June 18, 2018, and denied on June 29, 2018?

8Is the applicant entitled to a lost educational expense in the amount of $22,460.73 for the Automotive Training Centre, submitted to the respondent on October 30, 2020 and denied on November 18, 2020?

9Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

10Is the applicant entitled to interest on any overdue payment of benefits?

Respondent’s Claim

11Is the respondent entitled to repayment of income replacement benefits in the amount of $2,800.00 for the period November 19, 2017 to January 7, 2018, with notice provided to the applicant on January 15, 2018?

12Is the respondent entitled to interest for the overdue payment of income replacement benefits from January 30, 2018 to date?

RESULT

13Based upon a review of the totality of the evidence presented, I find that:

i. The applicant’s injuries fall outside the Guideline;

ii. The applicant is entitled to the treatment plan for chiropractic services;

iii. The applicant is not entitled to a lost educational expense in the amount of $22,460.73;

iv. The applicant is not entitled to an award under Regulation 664;

v. The applicant is entitled to interest on the accrued amount for the approved treatment plan for chiropractic services in accordance with the Schedule; and

vi. The respondent is entitled to repayment of the IRB in the amount of $2,800.00 and interest in accordance with the Schedule.

ANALYSIS

The Applicability of the Guideline

14The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule 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.” Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the Guideline.

15In Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”) the Divisional Court held the onus is on the applicant to prove on a balance of probabilities that his entitlement to medical benefits is not subject to the Guideline, and its prescribed $3,500.00 limit for minor injuries.

A. Did the applicant sustain predominantly minor physical injuries/impairments?

16Based upon the totality of the evidence presented, I find the evidence establishes that the applicant sustained a physical impairment that is not predominantly a minor injury. I find the applicant’s injuries do not fall within the MIG.

17The applicant relies upon two Disability Certificates in submitting that he has injuries that are not predominately minor and are serious physical impairments including ongoing pain symptoms related to his neck and back. The February 27, 2017 and May 25, 2017 Disability Certificates prepared by chiropractor Dr. Jayesh Mistry list the accident-related injuries as: other sprain and strain of cervical spine, sprain and strain of thoracic spine and lumbar spine, rotator cuff syndrome, lumbar and other intervertebral disc disorders with radiculopathy and tension-type headache.

18The applicant also relies on the clinical notes and records of his treating family doctor, Dr. Muhammad Shahnawaz, in establishing that his injuries do not fall within the MIG. I find these persuasive in demonstrating that the applicant has continued to seek medical care from his family physician for his ongoing and consistent pain symptoms, physical impairments and accident-related injuries. Specifically:

i. January 11, 2018 – “post mva f-up, still has headaches, is constant, tylenol and 3 some time, . . still have low backpain and is worse on 1 side . . .”

ii. February 13, 2018 – “post mva, still have back pain, headaches some time, sleep is not good, still go for physio, lower back pain radiates. . . “

iii. March 7, 2018 – “post mva headaches and lower back pain, working was full time, now feels like he is not coping well with work, . . neck movements are ok but cause headaches, mid c-spine tenderness, mid back to lower back pain, flexion/extension and lateral rotation and bending is restricted, . . . P: Baclofen, T#3 and physio”

iv. April 25, 2018 – “back pain is not better, not working now, still getting back pain and headaches, . . physio and pain killers.”

v. July 11, 2018 – “lower back pain and headache for a long time after the mva, pain is constant, does get better sometime . . .”

vi. September 12, 2019 – “lower back pain for a while, worse with sitting, feels numbness in hands and legs, walk ok, headaches . . .”

vii. January 29, 2020 – “headache and neck pain for the last few weeks . . . was complaining of pain on the left side of the neck and just above the left shoulder . . . tenderness in the mid C-spine area cause neck movements are stiff and slightly limited . . . most likely whiplash related pain post motor vehicle accident, advised physiotherapy, anti-inflammatory medication. . .”

19I further found persuasive the clinical notes and records of Dr. Mistry and the reassessment report, dated April 4, 2019, in which he noted the applicant’s continued complaints of neck and back pain, and diagnosed the applicant with chronic pain. A review of the records from Dr. Mistry reveals that, since the time of the accident, the applicant has continued to seek ongoing physical treatment for his pain symptoms and physical impairments. I am not convinced by the respondent’s submissions that Dr. Mistry is not a reliable assessor or credible. I find Dr. Mistry’s clinical notes and records over the years to be reliable with continuous notations referencing the applicant’s condition, symptoms and treatments performed, including for pain management.

20The respondent submits that I should not consider the clinical notes of Dr. Shahnawaz and Dr. Mistry under cover letter dated July 20, 2020 as they were not provided to the respondent by the deadline set forth in the case conference report and order, dated November 19, 2020. The deadline was April 16, 2021 and the medical records were provided five days later on April 21, 2021. I find that these records are relevant to the applicant’s medical condition, were produced well before the due date of any written submissions on the hearing, per Rule 9.2² were served on the respondent at least 10 days before the hearing and any prejudice to the respondent is outweighed by the prejudice to the applicant in not considering the medical evidence. I further note that even if I did not consider the medical evidence provided with the July 20, 2020 cover letter, I would still find the remaining medical evidence to be sufficient in the applicant meeting his burden. In coming to this conclusion, I am not relying on a single notation of chronic pain made by Dr. Mistry’s but instead a totality of the medical evidence presented which establishes ongoing pain symptoms and physical impairments that take the applicant out of the MIG.

21I am also not persuaded by the respondent’s submissions that the applicant’s reporting of his accident-related complaints to his family doctor was inconsistent and at one point there was a 14-month gap. Instead, I found that the totality of the medical evidence presented was sufficient in establishing that the applicant was consistently seeking medication care from his family doctor and/or chiropractor for his back pain and headache symptoms and functional limitations/impairments that take him outside the MIG.

22I did not find that the Insurer’s Examination (“IE”) reports and the opinions expressed therein outweighed the medical evidence of the applicant’s own treatment providers.

23The applicant submits that the respondent’s own IE assessor orthopedic surgeon Dr. Dimitri Haddad in his orthopaedic assessment report, dated July 4, 2017, recommends multimodality therapy for his back and neck pain.

24Similarly, neurologist Dr. Tilak Mendis in his neurological assessment report, dated July 4, 2017, while finding that there was no objective neurological findings, diagnosed the applicant with persistent headaches associated with a whiplash type injury to the neck region, and if not improving, he suggests a course of amitriptyline/nortriptyline/topiramate. He also notes that applicant’s symptoms of headaches, neck pain which is left-sided and is present constantly, and pain in the lower back region and thoracic region involving the left side.

25I also did not find particularly persuasive the IE report of general practitioner Dr. Steven Taylor, dated July 27, 2018, in which he opined that the applicant’s injuries were minor injuries. As pointed out by the applicant, Dr. Taylor states that the applicant’s prognosis is “guarded given that more than a year has passed since the injuries occurred” which is inconsistent with his opinion that the applicant’s “injuries are fully healed.” I note that upon clinical examination of the applicant’s cervical spine, Dr. Taylor found “a 50% loss of normal lateral flexion and rotation bilaterally” and reports of pain with all movements and significant discomfort on all movements. Examination of the applicant’s lumbar spine revealed “a reduced range of motion in his trunk at all planes.” Dr. Taylor also lists the applicant’s complaints of neck pain rated at 6-7/10, and near daily low back pain rated at 7-8/10 which is aggravated by sitting, bending and sleeping.

26Having reviewed the medical evidence and submissions, I find that overall, the evidence of the applicant is more persuasive. I find that applicant has physical injuries/impairments that are not a minor injury. The applicant has met his onus.

27On the balance of probabilities, I find the applicant has proven that his physical injuries are not predominantly minor.

B. The treatment plan and interest

28Based upon a totality of the evidence presented, I find the applicant is entitled to the treatment plan for chiropractic services in the amount of $2,907.44.

29The test for the payment of medical benefits as set forth in section 15 of the Schedule is whether the benefits claimed are reasonable and necessary expenses. In order to find that a medical benefit is payable, I must be satisfied that the applicant has proven on a balance of the probabilities that the treatment plans are reasonable and necessary.

30The applicant submits that he should be entitled to chiropractic and physical rehabilitation services in order to reduce his pain and improve his physical limitations. I note that since the time of the accident, he has been attending treatments to assist him with managing his pain and functional limitations. A review of the clinical notes and records of the family doctor, at the time of the proposed treatment plan, continually reference pain medication and physiotherapy for the applicant to manage his post accident neck and lower back pain, including, on March 7, April 25, and May 17, 2018.

31I further note that the goals of the treatment plan are pain reduction, increase in strength, increased range of motion, and a return to activities of normal living. These are reasonable goals for the applicant to undertake in reducing his pain and improving his functionality and dealing with his ongoing pain and physical impairments. The proposed treatment of therapy to multiple body sites can be considered reasonable in meeting the goals of the treatment plan.

32I find that, on a balance of the probabilities, the applicant has established that the treatment plan for chiropractic services is reasonable and necessary and he is entitled to the medical benefits.

C. Lost educational expenses

33I find the applicant is not entitled to any lost educational expenses. He has not met his burden in this regard.

34Section 21 of the Schedule sets out the two-part test for the payment of lost educational expenses. Specifically, the insurer shall pay for up to $15,000 for lost educational expenses incurred by or on behalf of an insured person who sustains an impairment as a result of an accident if,

a) at the time of the accident, the insured person was enrolled in a program of elementary, secondary, post-secondary or continuing education; and

b) as a result of the accident, the insured person is unable to continue the program.³

35Section 21(2) provides the respondent with the right to request a disability certificate from a person who applies for reimbursement of lost educational expenses. Section 21(4) stipulates that the applicant is not entitled to any lost educational expenses until a completed disability certificate is provided.

36Section 21(5) defines “lost educational expenses” as: expenses incurred before the accident for tuition, books, equipment or room and board in respect of the program term or program year in which the insured person was enrolled at the time of the accident, if the expenses are related to the program that the insured person is unable to continue.

37The applicant asserts that he has furnished proof that he was enrolled in a continuing education program prior to the accident, and that as a result of the accident, he was unable to continue the program. I find the applicant has met the first part of the test but not the second.

38The file materials indicate that the applicant was enrolled as a student of the Automotive Training Centre (the “Centre”) as of October 20, 2016, for the Automotive Technology Diploma program and his fees listed on the enrolment contract are $14,627.00. A student transcript, dated October 18, 2017, lists the program dates as November 28, 2016 and end date as October 1, 2017. I find that the applicant has provided sufficient evidence that he was enrolled in a continuing education program, at the time of the accident, as evidence by his student file from the Centre.

39However, I find that there is no persuasive evidence before the Tribunal to indicate that the applicant was unable to continue the program as a result of the accident. I note that the applicant was able to attend the program the day after the accident on February 24, 2017. I further note that the student attendance report states the applicant attended the program after the accident for a duration of time and missed several days for various listed reasons, including kids need a ride home, sick spouse, and headaches. It appears the applicant stopped attending the program in mid-June 2017 but there is no reference in the student file as to the reason. The applicant asserts he stopped attending as he was unable to continue with the program after his accident. However, I find that there is insufficient evidence presented in his student file or elsewhere to indicate that the applicant was unable to complete the program due to the accident.

40In addition, the disability certificates dated February 27, 2017 and May 25, 2017 indicate that the applicant was not disabled from continuing with an educational program.

41I also find the applicant’s reliance on Dr. Haddad’s IE orthopaedic assessment report for the assertion that he was unable to continue the Automotive Training program after the accident is misplaced. I note Dr. Haddad’s report states the applicant is attending the Automotive Training Center in order to complete a one year program in auto mechanics and that he is able to carry out the physical aspects of the training though reportedly some of the duties (changing tires) will cause an increase in particular in his neck pain.

42The applicant has not pointed to any further persuasive evidence in either the school file or his medical records demonstrating that he was unable to continue with the Automotive Training program as a result of the accident.

43I find that on a balance of probabilities, the applicant has not met his burden and is not entitled $22,460.73 for lost educational expense.

D. An award under Regulation 664

44The applicant seeks an award under Regulation 664 asserting that the respondent’s failure to respond to the lost educational expenses issue and its reasoning were unreasonable. Regulation 664 provides that if an insurer has unreasonably withheld or delayed payments, the Tribunal may make an award. Based upon the totality of the evidence presented, I find that an award is not warranted.

45It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under O. Reg. 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

46In this case, I did not find the applicant’s submissions to be convincing. I note the applicant does not contradict the respondent’s assertion that it responded within 19 days of receiving the claim for lost educational expenses. and that the applicant made the claim three years after he withdrew from the educational program. I note the applicant submits that he provided the lost educational expenses documentation to the respondent on October 30, 2020.

47I find the respondent properly assessed the claim after receiving documentation and did not unreasonably withhold or delay payments. The respondent took the position that lost educational expenses were not payable. I further find that there is no convincing evidence before me to establish that the respondent unreasonable withheld or delayed payments with regards to any of the issues before the Tribunal. It would appear the respondent continuously assessed the file on an ongoing basis.

48I find the applicant has not demonstrated, on a balance of probabilities, that an award under Regulation 664 is warranted.

E. The respondent’s claim for repayment of IRB and interest

49Based upon a totality of the evidence presented, I find that the respondent is entitled to repayment of the IRB in the amount of $2,800.00 for the period of November 19, 2017 to January 7, 2018.

50Section 52 of the Schedule provides that a person is liable to repay the insurer any benefit described in the Schedule that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud.

51The insurer is required to give notice within 12 months after the payment is made otherwise the person ceases to be liable unless the benefit was paid as a result of wilful misrepresentation or fraud. The Schedule provides that the insurer may charge interest on the outstanding balance of the amount to be repaid for the period starting on the 15th day after the notice is given.

52The respondent seeks repayment of overpaid IRBs for the period November 19, 2017 to January 7, 2018. The respondent paid a weekly IRB of $400.00 per week to the applicant from March 27, 2017 until January 7, 2018. However, the applicant returned to his pre-accident employment on November 19, 2017, which was confirmed on January 11, 2018 by his legal representative. Thereafter, on January 15, 2018 (the “January 15th letter”), the respondent sent notice to the applicant advising of the overpayment of the IRB in the amount of $2,800.00 and seeking repayment of the amount.

53In his responding materials, the applicant asserts the respondent has failed to meet its onus for requiring repayment but he makes no argument in support. The applicant also concedes that the respondent is not out of time in seeking a repayment.

54In the absence of contrary submissions, and based upon the evidence presented, I find the applicant returned to employment on November 19, 2017. I must now determine if the respondent provided proper notice of the repayment per section 52(2)(a).

55I find the respondent did provide sufficient notice to the applicant in the January 15th letter which acknowledged the applicant returned to employment on November 19, 2017, and that an overpayment of the IRB had accrued in the amount of $2,800.00. A request for repayment of that amount was made. The January 15th letter also cited the relevant section 52 of the Schedule and noted that interest may be charged on the amount to be paid starting on January 30, 2018 and ending on the day of full repayment.

56I find that the notice complies with section 52 of the Schedule as the respondent has given notice that an amount is required to be repaid for the overpayment of the IRB. The respondent clearly identified the type of benefit that was overpaid, the payment period for which repayment is sought and the amount of repayment sought. In addition, the applicant has conceded that the respondent is not out of time in seeking a repayment of the benefit and I agree.

57As I have found that the respondent is entitled to a repayment of the amount of $2,800.00, I further find that per section 52(5) of the Schedule, the respondent is entitled to interest on the outstanding amount to be repaid in accordance with the Schedule.

58I conclude the applicant is liable for repayment of the IRB in the amount of $2,800.00. Further, the respondent is entitled to interest on the overdue payment of the IRB from January 30, 2018, in accordance with the Schedule.

CONCLUSION

59After considering the evidence and submissions, pursuant to the authority vested in this Tribunal under the provisions of the Act, I find that:

i. The applicant’s injuries fall outside the Guideline;

ii. The applicant is entitled to the treatment plan for chiropractic services;

iii. The applicant is not entitled to a lost educational expense in the amount of $22,460.73;

iv. The applicant is not entitled to an award under Regulation 664;

v. The applicant is entitled to interest on the accrued amount for the approved treatment plan for chiropractic services in accordance with the Schedule; and

vi. The respondent is entitled to repayment of the IRB in the amount of $2,800.00 and interest in accordance with the Schedule.

Footnotes

1. 1O. Reg. 34/10, as amended
2. 2Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) as amended.
3. 3O. Reg. 34/10, s. 21 (1).