Citation: Tabaku v. Intact Insurance Company, 2022 ONLAT 20-009720/AABS

Licence Appeal Tribunal File Number: 20-009720/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:

Orgest Tabaku

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Maziar Mortezaei, Counsel

For the Respondent:

Leanne C. Storms, Counsel

HEARD: In Writing

OVERVIEW

1Orgest Tabaku, (“the Applicant”), was involved in an automobile accident on December 7, 2018, and sought benefits from Intact Insurance Company, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The Respondent characterized the Applicant’s injuries as a “minor injury” as defined in the Schedule and subjected him to the Minor Injury Guideline (the “MIG”), and the related $3,500.00 funding limit.

2The Applicant was denied certain benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

3The issues in dispute are:

I. Are the applicant's injuries predominately minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit in the MIG?

II. Is the applicant entitled to non-earner benefits (“NEBs”) in the amount of $185.00 per week for the period January 17, 2019 to date and ongoing?

III. Is the applicant entitled to attendant care benefits “(ACBs)” in the amount of $487.27 per month for the period January 2, 2019 to date and ongoing?

IV. Is the applicant entitled to a medical benefit in the amount of $2,456.00 for physiotherapy services, proposed in a treatment plan dated April 15, 2019?

V. Is the applicant entitled to a medical benefit in the amount of $2,230.40 for physiotherapy services, proposed in a treatment plan dated August 6, 2019?

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

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

RESULT

4I find that the Applicant sustained a minor injury as a result of the accident and is subject to the $3,500.00 funding limit on treatment. He has not met his onus to demonstrate that he is entitled to the benefits claimed, interest, or an award.

BACKGROUND

5The Applicant was the back seat passenger of a vehicle that was struck from behind while stopped at a stop sign in a suburban intersection. He was transported by ambulance from the scene of the accident to the hospital where he was examined and diagnosed with sprain and strain injuries and discharged.

6The Applicant started chiropractic treatment about five days following the accident, pursuant to the MIG. The initial claim forms from the treatment clinic state that a MIG treatment plan was submitted under protest because the treatment clinic “…respectfully disagree(s) with the suggestion that this client falls within the definition of the MIG”¹. However, no reasons were provided to explain the clinic’s position in this regard.

7In any event, the Applicant proceeded with treatment pursuant to the MIG and exhausted the $3,500.00 treatment funding limit. He now seeks a finding that he sustained injuries that fall outside the minor injury definition, and that he is entitled to NEBs, ACBs, the treatment and assessment plans in dispute, interest, and an award.

ANALYSIS

The Minor Injury Guideline (MIG)

8The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in section 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment. Pursuant to subsection 18(2), the funding limit does not apply if the Applicant’s heath practitioner determines and provides compelling evidence that a pre-existing medical condition will preclude her recovery if subject to the MIG.

9If an insurer deems an Applicant’s injuries to be minor in nature, the evidentiary onus is on the Applicant to establish that the MIG, and the related funding limit, should not apply.

10The Applicant submits that the MIG should not apply because he sustained psychological injuries as a result of the accident and that psychological injuries are not included within the definition of a minor injury.

Psychological Injuries

11I find that the Applicant has not met his burden to demonstrate that he sustained psychological injuries as a result of the accident that would warrant his removal from the MIG.

12The evidence does not support the conclusion that the Applicant sustained psychological injuries as a result of the accident. To support his claim, the Applicant directs me to five pieces of evidence: a disability certificate by Dr. R. Tarulli, chiropractor, dated December 12, 2018, a Assessment of Attendant Care Needs (Form 1), and three insurer’s examination (“IE”) reports. I find these documents to be uncompelling evidence in support of the Applicant’s claims.

13The disability certificate was completed by a chiropractor, who is not qualified to diagnose psychological injuries. Thus, the fact that the disability certificate notes malaise and fatigue is uncompelling due to the source of the diagnoses. Further, malaise and fatigue are listed in the document as the least significant injury and there are no other independent records or reports from qualified healthcare professionals to support Dr. Tarulli’s diagnoses. The same logic applies to the treatment plans in dispute. Those plans were completed by Dr. Tarulli, who is unable to diagnose psychological injuries.

14The attendant care report by registered nurse, Y. Granovsky, dated January 2, 2019 does not support the Applicant’s claims. Similar to Dr. Tarulli, registered nurse Granovsky is not qualified to diagnose psychological injuries. Further, there is no mention of psychological injuries in the document, nor is there evidence that the Applicant’s psychological functioning was assessed as part of this assessment.

15The insurer’s examinations (“IEs”) do not support the Applicant’s claim. Dr. G. Gelman, physician, assessed the Applicant on two occasions and issued a corresponding report and addendum. In the reports dated May 8, 2019 and June 21, 2019, commissioned to address the Applicant’s entitlement to NEBs and medical benefits, respectively, Dr. Gelman concluded that the Applicant showed no objective signs of an impairment and that his injuries were rightfully characterized as a minor injury. In the July 15, 2019 report on the Applicants entitlement to ACBs, Dr. Gelman found it difficult to observe any objective signs of a musculoskeletal impairment and concluded that the Applicant likely sustained a sprain/strain injury to his cervical and lumbar spine.

16Occupational therapist, J. Greenspan, also assessed the applicant’s entitlement to ACBs for the report dated July 15, 2019. The conclusion of that assessment was that the Applicant exhibited a range of motion within normal functioning limits throughout his body and that he had no need for attendant care. There is no indication in any of the IE reports that suggests that the Applicant suffers from a psychological injury as a result of the accident.

17From this, I conclude that malaise and fatigue are, at most, sequalae of the Applicant’s soft-tissue injuries and that these issues do not rise to the level that would warrant the Applicant’s removal from the MIG and the $3,500.00 funding limit on treatment.

The Disputed Treatment and Assessment Plans

18As the Applicant has exhausted the funding available to him for his minor injury, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is not required. It follows that no interest is payable as it related to the disputed treatment and assessment plans as no payment for them went overdue.

Attendant Care Benefits (“ACBs”)

19The Applicant is not entitled to ACBs because he sustained a minor injury. Section 14(2) of the Schedule provides that ACBs are only payable in the event that the insured sustained an injury that is not a minor injury.

Non-Earner Benefits (“NEBs”)

20The Applicant may be entitled to NEBs if he can demonstrate that he suffers a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. According to Heath v. Economical Mutual Insurance Company, the test for NEBs involves a comparison of the Applicant’s pre-accident activities and life circumstances versus his post-accident activities and circumstances². In order to qualify for NEBs, the Applicant must demonstrate that his circumstances have changed enough to continuously prevent him from engaging in substantially all of the activities that he engaged in before the accident.

21The Applicant’s claim for NEBs is based on a reported inability to carry on his housekeeping and home maintenance duties and personal care tasks. He submits that he suffers from physical limitations due to a “myriad of injuries and impairments” which cause continuous pain and reduced range of motion. The Applicant did not specify the injuries, but the injuries listed in the disability certificate completed by Dr. Tarulli, dated December 12, 2018 include; sprain and strain of cervical spine, sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, headache, sprain and strain of shoulder joint, rotator cuff capsule, whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, acute pain, and malaise and fatigue.

22I find that the Applicant has not demonstrated on a balance of probabilities that he suffers a complete inability to carry on a normal life. The Applicant’s claim falls short of establishing that he suffers a complete inability to carry on a normal life. The Applicant provides no evidence of his pre-accident activities of normal life that can be compared to his post-accident activities. There is no evidence that speaks to the Applicant’s lifestyle such as hobbies, social life, education, or work. Instead, he makes submissions that he delayed the start of English as a Second Language (“ESL”) courses but provided no evidence that he was registered for the program or that he had to delay the start on account of his accident-related injuries. Even if he provided the information, the evidentiary onus would still not be met because this is only one aspect of the Applicant’s life and there is no evidence or suggestion that he was a student or engaged in ESL courses prior to the accident.

23Similarly, the evidence does not support the Applicant’s claim that he can no longer engage in his housekeeping and home maintenance activities. The Applicant claims that he qualifies for NEBs because he has difficulty with personal care tasks. However, difficulty with a task, or tasks, does not constitute a complete inability to carry on a normal life. Rather, the impairment has to be significant enough to continuously prevent the Applicant from engaging in substantially all of his pre-accident activities. I trust that the Applicant’s pre-accident activities involve more than participating in ESL classes and engaging in housekeeping and home maintenance and personal care tasks.

24The IE reports are unsupportive of the Applicant’s claim for NEBs. As noted previously, Dr. Gelman assessed the Applicant on two occasions in 2019. Dr. Gelman found that the Applicant exhibited self-limiting and pain focusing behaviour during both assessments. On examination, Dr. Gelman found no objective sign of impairment. The May 8, 2019 report concluded that, from a musculoskeletal perspective, there is no objective indication that the Applicant suffers from a complete inability to carry on a normal life as a result of the accident.

25Ultimately, there is no evidence, such as an affidavit or testimony, that speaks to the Applicant’s pre-accident activities. Further, the Applicant’s self-reported functional deficits do not rise to the level that indicates they continuously prevent him from engaging in substantially all of his pre-accident activities.

Award

26Pursuant to section 10 of Regulation 664, the Applicant may be entitled to an award if I determine that the Respondent unreasonably withheld or delayed payment of a benefit.

[27] I find that the Applicant is not entitled to an award because there is no evidence showing that the Respondent unreasonably withheld the payment of benefits. The Applicant is not entitled to payment for any of the benefits claimed. Thus, I can conclude that the Applicant is not entitled to an award.

CONCLUSION

28The Applicant was involved in an accident and sustained a minor injury.

29The Applicant is not entitled to the treatment and assessment plans in dispute because he has exhausted the funding available to him for his minor injury.

30The Applicant is not entitled to ACBs because he sustained a minor injury and the Respondent is not liable to pay ACB expenses as a result.

31The Applicant has not demonstrated that he suffers a complete inability to carry on a normal life as a result of accident-related injuries. Thus, he is not entitled to NEBs.

32No award or interest is payable because no payments went overdue.

33The Application is dismissed.

Footnotes

1. 1OCF 23 dated December 12, 2018, Applicant’s book of documents, page 97
2. 2Heath v. Economical Mutual Insurance Company, 2009 ONCA 391.