Khatibani v. Allstate Canada, 2023 CanLII 101108
Licence Appeal Tribunal File Number: 21-011917/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:
Hamed Khatibani
Applicant
and
Allstate Canada
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Andrea Girones, Counsel
For the Respondent: Alexei Batten, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Hamed Khatibani, the applicant, was involved in an automobile accident on July 14, 2020 and sought benefits 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, Allstate Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The applicant submits that he has been denied these additional accident benefits:
i. Is the Applicant entitled to $270.00 ($995.00 less $725.00 approved), for chiropractic services, proposed by Main Chiropractic and Rehabilitation in a treatment plan dated December 4, 2020?
ii. Is the Applicant entitled to $335.00, ($585.00 less $250.00 approved) for chiropractic services, proposed by Main Chiropractic and Rehabilitation in an OCF-18 dated March 5, 2021?
iii. Is the Applicant entitled to exercise equipment in the amount of $12,027.58?
3The respondent submits that these issues cannot be considered as they were not contained in the application, were not added at the case conference and were not added by way of a motion prior to the hearing.
4I agree with the respondent, the applicant did not file a motion to add these three new issues to this proceeding. I find that it would be procedurally unfair to add these treatment plans to the proceeding.
ISSUES
5The following issues are to be decided:
i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $400.00 for chiropractic services, proposed by Main Chiropractic and Rehabilitation in a treatment plan dated June 18,2022?
iii. Is the applicant entitled to $400.00 ($785.00 less $385.00 approved) for chiropractic services proposed by Main Chiropractic and Rehabilitation in a treatment plan dated February 19, 2021?
iv. Is the applicant entitled to $585.00 ($835.00 less $250.00 approved) for chiropractic services proposed by Main Chiropractic and Rehabilitation in a treatment plan dated March 5, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The treatment plans in dispute are not payable; and
iii. The applicant is not entitled to interest.
ANALYSIS
Applicability of the Minor Injury Guideline (“MIG”)
7The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
9An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
10It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
11It is unclear from the applicant’s submissions on what basis he should be removed from the MIG.
The applicant’s injuries do not warrant removal from the MIG
12I find that the applicant has not met his onus to demonstrate that his accident-related impairments warrant removal from the MIG.
13The applicant’s submissions mainly focused on the treatment plans, with few references to his requested avenue for removal from the MIG. In these limited submissions, the applicant’s argument was that prior to the accident he lived an active lifestyle including running and weightlifting daily, and post-accident the applicant experiences pain in his neck area, shoulder and lower back. The applicant relies on the clinical notes and records of his family physician, Dr. Langill, Dr. Taunya St. Pierre, physiatrist, and Dr. Alex McKee, physician.
14The applicant’s neck, shoulder and lower back pain was assessed by Dr. Langill on November 4, 2021, the applicant does not make submissions of findings or opinion of Dr. Langill. Dr. St. Pierre ordered an MRI on April 14, 2022, for the applicant. The MRI results of his left shoulder that show partial-thickness articular sided detachment of the mid third of supraspinatus, on background moderate supraspinatus tendinosis, moderate acromioclavicular osteoarthritis, and mild subacromial-subdeltoid bursitis. In a June 20, 2022, letter from Dr. St. Pierre to Dr. Langill a surgical consult for the applicant’s shoulder is mentioned, but there is no mention of the accident or medical opinion on the causation of the applicant’s shoulder injury. No submissions were made on the findings or next steps of the referral. The applicant also relies on the September 3, 2022, section 25 assessment of Dr. McKee who opined that the applicant should not be in the MIG because of his cervical facet joint injury and left rotator cuff tear.
15The respondent submits that the applicant failed to provide compelling medical evidence to support a finding that he sustained an injury as a result of the accident which requires treatment outside of the MIG. The respondent relies on the Insurer’s Examination Physical Medicine and Physical Rehabilitation Specialist Assessment Report, dated August 5, 2021, by Dr. Vidya Sreenivasan. Dr. Sreenivasan opined that the applicant suffered predominately soft tissue injuries within the MIG, the applicant self-reported that he had a 70% improvement in his symptoms since the accident, had returned to all pre-accident activities and made no mention of shoulder pain. Dr. Sreenivasan concluded that there was no compelling medical evidence that the applicant suffered from a pre-existing injury which would prevent maximal recovery within the MIG.
16The respondent submits that the medical evidence does not place the applicant outside of the MIG until the applicant was diagnosed with a left rotator cuff tear on the April 14, 2022, MRI report. It is the respondent’s position that there is no medical evidence that this injury is accident related.
17I am persuaded by the submissions of the respondent that the rotator cuff tear is not accident related. While I accept that the applicant has neck and shoulder pain, I was not provided any medical evidence of left shoulder pain or restrictions as a result of the accident. The applicant did not reference left shoulder pain to Dr. Sreenivasan. The CNRs of Dr. Langill reveal the first mention of the accident was on November 4, 2021, approximately 16 months after the accident, Furthermore, Dr. Langill describes the applicant’s injuries as a whiplash type injury. Lastly, the left rotator cuff tear was not diagnosed until over two years after the accident, and neither Dr. St. Pierre nor Dr. Langill addressed the issue of causation. I place little weight on Dr. McKee’s statement that the rotator cuff tear is as a result of the accident, as he failed to provide any explanation for this opinion.
18As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he sustained injuries that warrant his removal from the MIG.
Disputed Treatment Plans
19The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
Interest
20Interest applies on the payment of nay overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
ORDER
21The applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit on treatment.
22The applicant is not entitled to the treatment plans in dispute because they propose services that are beyond the MIG’s funding limit.
23No interest is applicable.
24The application is dismissed.
Released: November 1, 2023
__________________________
Monica Ciriello
Vice-Chair