Kouame-Amani v. Jevco Insurance Company, 2023 CanLII 110902

Citation: Kouame-Amani v. Jevco Insurance Company, 2023 ONLAT 21-009326/AABS

Licence Appeal Tribunal File Number: 21-009326/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:

Besseli Kouame-Amani

Applicant

and

Jevco Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Kameliya Stancheva, Paralegal

For the Respondent: Gauri Gogna, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Besseli Kouame-Amani, (the "applicant"), was involved in an automobile accident on February 20, 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 Jevco Insurance Company (the "respondent") and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Are the applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit? ("MIG")
2. Is the applicant entitled to income replacement benefits ("IRB") in the amount of $400.00 per week from February 27, 2020, to January 20, 2021?
3. Is the applicant entitled to $2,629.85 for chiropractic and physiotherapy services, proposed by Humber Civic Care Centre in a treatment plan/OCF-18 ("OCF-18") dated May 3, 2021?
4. Is the applicant entitled to $2,818.80 for chiropractic services, proposed by Humber Civic Care Centre in an OCF-18 dated November 16, 2020?
5. Is the applicant entitled to $2,000.00 for an in home and attendant care assessment, proposed by Ontario Independent Assessment Centre, in an OCF-18 dated June 29, 2020?
6. Is the applicant entitled to $1,995.33 for a psychological status evaluation, proposed by Humber Civic Care Centre, in an OCF-18 dated November 12, 2020?
7. Is the respondent liable to pay an award pursuant to section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
8. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3For the reasons that will follow below, I find that:

i. The applicant is not entitled to IRB for the time period of February 27, 2020, to January 20, 2021; ii. The applicant's impairments are predominantly minor, and therefore subject to the treatment limit of the MIG; iii. The applicant is not entitled to any of the disputed OCF-18s as they propose treatment outside of the MIG; iv. As no benefits are owing, no interest is payable; and v. The applicant is also not entitled to an award or interest pursuant to section 10 of Regulation 664.

ANALYSIS

Pre-104 IRB

4Entitlement to pre-104 IRB is set out in section 5 of the Schedule. Section 5(1)1i provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.

5The applicant has not met his burden to prove his entitlement to income replacement benefits. The applicant's submissions provide a description of the accident, and a summary of some medical evidence. The applicant provided no submissions on his previous employment, and whether he was substantially unable to perform the essential tasks of his pre-accident employment as a result of the accident. Further, there is no reference to the legal framework that sets out the criteria needed to prove that he meets the pre-104 IRB test. The applicant must direct the Tribunal to the relevant evidence in support of his case and explain why he meets the test for IRB. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make his case.

6Despite the fact that the submissions of the applicant are virtually devoid of any legal argument, I have considered the evidence provided. I find that the applicant has not met his burden to prove his entitlement to IRB.

7The respondent submits that the applicant has not made any submissions with respect to entitlement for pre-104 IRB, aside from providing a Disability Certificate ("OCF-3"). As such, the respondent submits that the applicant has not met his burden of proof with respect to his pre-104 IRB claim.

8I prefer the evidence of the respondent over the applicant. The section 44 assessors, Dr. Challis (psychologist), and Dr. Dharamshi (general practitioner), reviewed the medical evidence for the applicant, conducted various testing on the applicant, and concluded that he does not suffer a substantial inability to perform the essential tasks of his pre-accident employment.

9I am not persuaded by the OCF-3, completed by Dr. Mirian, (chiropractor) on April 7, 2020, as none of the applicant's walk-in-clinic doctors support that he cannot perform the essential tasks of a delivery truck driver as a result of the injuries sustained from this accident. For example, on March 9, 2020, the applicant met with Dr. Jabor, a walk-in-clinic doctor, and he did not advise him of the accident. The first time, the applicant advised his treating walk-in-clinic doctor of this accident was not until October 14, 2022, over two years after the accident. In my view, the lack of medical evidence from his treating walk-in-clinic doctors demonstrates that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment, as a delivery truck driver.

10On July 20, 2020, the applicant met with Dr. Souter (chiropractor), for a Functional Abilities Evaluation. Dr. Souter concluded that the applicant demonstrated a poor effort throughout the physical examination and there were inconsistent test results. As such, Dr. Souter concluded that the applicant did not demonstrate his actual maximum functional abilities in the testing due to self-limited behaviour.

11On July 27, 2020, the applicant met with Dr. Challis for a psychological assessment. Dr. Challis concluded based on the psychometric testing, that the applicant did not meet the criteria for a DSM-5 diagnosis. Dr. Challis concluded that the applicant from a psychological perspective was able to resume all the essential tasks of his pre-accident employment with no restrictions or accommodations. The applicant has not provided compelling evidence that rebuts Dr. Challis's conclusion.

12On December 21, 2020, the applicant met with Dr. Dharamshi for an independent medical assessment. The applicant advised Dr. Dharamshi that he was working as a delivery truck driver at the time of this accident. In addition, the applicant advised Dr. Dharamshi, that his essential and non-essential tasks of employment included: driving, standing, bending, carrying, lifting, pushing, and pulling weights. Following a physical examination, Dr. Dharamshi opined that the applicant demonstrates the ability to resume the essential tasks of a delivery truck driver, from a musculoskeletal perspective.

13On the medical evidence before the Tribunal, I find no reason to interfere with the respondent's determination to deny the IRBs on the basis of the section 44 reports completed by Dr. Souter, Dr. Challis, and Dr. Dharamshi, as there is limited medical evidence beyond the applicant's self-reporting indicating an occupational disability. I find that the applicant has failed to meet his onus to prove that he is entitled to IRB from February 27, 2020, to January 20, 2021, because there is no compelling medical indication that he cannot perform the essential tasks of his pre-accident employment.

The Minor Injury Guideline

14Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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."

15An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to section 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

16Problematically, despite the applicability of the MIG being a live issue in dispute, the applicant offered no submissions to demonstrate why he should be removed from the MIG. Instead, the applicant summarized the medical evidence, referenced a number of cases, and made a blanket submission that all the OCF-18s in dispute should be approved. An applicant cannot simply submit evidence and leave it up to the Tribunal to connect the dots and make his case. Therefore, I find that upon a review of the evidence before me that the applicant has not met the burden of proving that his accident-related impairments require treatment beyond the MIG.

17The respondent submits that the applicant's injuries fall within the MIG and to support its position, relies upon the section 44 reports completed by Dr. Challis, and Dr. Dharamshi, who both concluded that the applicant's injuries fall within the MIG.

Pre-Existing Conditions

18I find that the evidence does not demonstrate that the applicant has any pre-existing conditions that would prevent maximal recovery under the MIG.

19There is some evidence that the applicant was involved in two previous car accidents, in December 2018, and March 2019, where he sustained injuries to his: neck, upper back, lower back, knee, and suffered from insomnia. The applicant also had a pre-existing right knee injury in 2008 to 2009 which required surgical treatment and a football injury associated with neck pain, and lower back pain.

20The presence of a pre-existing condition alone is not sufficient to remove an applicant from the MIG. I find that the applicant has not provided any evidence to support that he has a pre-existing injury that would prevent maximal recovery under the MIG. In addition, Dr. Dharamshi, and Dr. Challis, in their uncontested section 44 reports, concluded that there was no compelling evidence of a pre-existing condition that would prevent the applicant from achieving maximal recovery if subject to the MIG from either a physical or psychological perspective. Accordingly, I find that the applicant is not removed from the MIG on the basis of any pre-existing condition.

Injuries Sustained

21I find that the medical evidence before me demonstrates that the applicant sustained injuries that are classified within the MIG, for the reasons that will be outlined below.

22The OCF-3, completed by Dr. Mirian, listed injuries that fall within the definition of a minor injury, with the exception of some psychological conditions. In my view, diagnosing psychological conditions is outside of the scope of practice of a chiropractor, and as such, I have placed little weight on this OCF-3.

23The emergency records ("ER") of Trillium Health Partners do not support anything other than a minor injury. For example, on February 20, 2020, it was noted that the applicant complained of neck pain, lower back pain, head pain, and bilateral knee pain, which are all captured within the definition of a minor injury. In addition, the ER record of February 20, 2020, noted that it was unclear whether the applicant sustained a head injury. In any event, there is no medical evidence before me that shows that the applicant sustained a head injury as a result of the accident, which would warrant removal from the MIG. The ER record of February 2020, also noted chronic back pain, which I will be addressing later in my decision.

24The results of the diagnostic imaging for the applicant's pelvis, head, lumbar spine, and cervical spine were unremarkable, albeit there were minor degenerative changes noted in the applicant's right hip joint. I place little weight on this, as the applicant has not provided evidence that shows these conditions are linked to the accident.

25With the exception of the chronic back pain diagnosis, and psychological conditions noted in the OCF-3, which I address further below, the applicant's injuries fall squarely within the definition of a minor injury.

Psychological Impairment

26I find that the evidence before me does not support that the applicant sustained a psychological impairment, that would warrant removal from the MIG.

27There is no evidence before me that the applicant reported any psychological concerns to any of the doctors at the walk-in-clinics he visited post-accident. Further, there is no evidence that the applicant was prescribed any medicine or referred to a specialist to treat any psychological conditions.

28I prefer the evidence of the respondent over the applicant. I place little weight on the provisional diagnosis of an Adjustment Disorder (with mixed anxiety and depressed mood) by Dr. Papazoglou, (psychologist), under the supervision of Dr. Mrahar, (psychologist), as it was based entirely on the applicant's self-reporting. These assessors did not review the medical evidence for the applicant, nor did they conduct any psychometric testing.

29In contrast, Dr. Challis, reviewed a number of medical documents and conducted numerous psychometric tests, before arriving at his conclusion that the applicant did not have a psychological impairment resulting from the subject accident.

30Accordingly, I find that the applicant has not established that he suffers from a psychological impairment, which would remove him from the MIG.

Chronic Pain

31I find that the evidence does not support that the applicant suffers from chronic pain with a functional impairment.

32Chronic pain conditions are not included in the MIG definition. In order to establish that he has a chronic pain condition, the applicant must demonstrate that his pain causes a functional impairment which adversely affects his well-being. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

33While I acknowledge, the ER records of Trillium Health Partners note "chronic back pain", there is no indication of whether this is from the subject accident, or his previous accidents. Further, the records of the applicant's walk-in-clinic do not support a finding that the applicant has chronic pain with a functional impairment, as he only advised his treating walk-in doctor about this accident after 2 years had passed since the accident. Moreover, on October 14, 2022, Dr. Hughes did not diagnose the applicant with chronic pain, nor was any reference made to any functional limitations as a result of the applicant's pain. While a formal diagnosis of chronic pain is not mandatory in order to be removed from the MIG, I find that the evidence of chronic pain is lacking.

34Lastly, I place significant weight on Dr. Dharamshi's unrebutted report of January 6, 2021, where he diagnosed the applicant with injuries that are within the definition of a minor injury, based on a physical examination and a review of the medical documentation.

MIG not Exhausted/Treatment Plans

35The parties did not make any submissions regarding whether the MIG has been exhausted. It is unclear how much is remaining under the MIG.

36All the OCF-18s in dispute propose treatment outside of the MIG. All the OCF-18s have the "No" box at the bottom of page two of each form checked, denoting that the treatment recommended therein was for an impairment that was not predominantly a minor injury. Therefore, the applicant's entitlement to the benefits in these plans is contingent on a finding that his injuries are not included within the minor injury definition in the Schedule. As I have determined below that the applicant's injuries are within the MIG, I find that the applicant is not entitled to any of the proposed OCF-18s.

Interest

37Interest is not payable as there are no overdue amounts owing.

The Applicant is not entitled to an Award pursuant to section 10 of Regulation 664

38The applicant seeks an award and interest pursuant to section 10 of Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant. The respondent submits that the applicant has failed to demonstrate that its conduct rose to a level that was: excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

39As the applicant has been found to have sustained a minor injury and is not entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.

ORDER

40The applicant is not entitled to IRB, or interest.

41The applicant sustained predominantly minor injuries as a result of the accident. He remains subject to the MIG and its $3,500.00 limit. As the applicant remains within the MIG and its $3,500 limit, and all the disputed OCF-18s propose treatment outside of the MIG, he is not entitled to the plans in dispute, nor interest.

42The applicant is also not entitled to an award or interest pursuant to section 10 of Regulation 664.

43As such, the application is dismissed.