Parweez v. Economical Mutual Insurance Company, 2023 CanLII 119828

Citation: Parweez v. Economical Mutual Insurance Company, 2023 ONLAT 21-010731/AABS

Licence Appeal Tribunal File Number: 21-010731/AABS

In the matter of an application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Mohamad Parweez

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Nivedita Misra, Counsel

HEARD: By Written Submissions

OVERVIEW

1Mohamad Parweez (the “applicant”) was involved in an automobile accident on September 24, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Economical Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment. Correspondingly, the respondent denied treatment outside of the MIG and attendant care benefits.

3Although neither party specifies in submissions the amount of treatment that has been incurred under the MIG, correspondence between the parties dated January 13, 2020 indicates that the respondent has approved treatment up to the full $3,500.00 limit of the MIG. As such, I accept that the MIG limit is exhausted. The applicant must be found to warrant treatment outside the MIG to be entitled to the disputed treatment plans and attendant care benefits (“ACB”).

PRELIMINARY ISSUES

4The respondent raised the following preliminary issues:

i. Is the applicant barred from proceeding to a hearing for entitlement to an Income Replacement Benefit (“IRB”) because the insurance policy is void for material misrepresentation due to the applicant failing to notify the insurer of a change in risk?

ii. Is the respondent entitled to a repayment of $5,753.22 plus interest relating to its payment of IRB for the period of October 1, 2019 to February 26, 2020?

SUBSTANTIVE ISSUES IN DISPUTE

5The following substantive issues are in dispute:

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

ii. Is the applicant entitled to IRB in the amount of $291.83 per week from October 1, 2019 to February 26, 2020?

iii. Is the applicant entitled to a medical benefit of $172.82 ($1,100.00 less $927.18 approved) for physiotherapy services, proposed by Health-Pro Wellness in a treatment plan submitted January 7, 2020?

iv. Is the applicant entitled to a medical benefit of $2,045.00 for medical services (CT Scan), proposed by Health-Pro Wellness in a treatment plan submitted November 23, 2020?

v. Is the applicant entitled to a medical benefit of $4,489.20 for physiotherapy services, proposed by Health-Pro Wellness in a treatment plan submitted February 10, 2020?

vi. Is the applicant entitled to a medical benefit of $3,250.50 for other assistive devices, proposed by Health-Pro Wellness in a treatment plan submitted December 4, 2019?

vii. Is the applicant entitled to $1,771.46 for an attendant care assessment, proposed by Health-Pro Wellness in a treatment plan submitted October 22, 2019?

viii. Is the applicant entitled to $2,189.81 for a psychological assessment, proposed by Health-Pro Wellness in a treatment plan submitted November 23, 2020?

ix. Is the applicant entitled to ACB in the amount of $1,305.24 per month from November 10, 2019 to date of hearing?

x. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

6For the reasons that follow, I find that:

i. The respondent has not demonstrated that the insurance policy is void for material misrepresentation, and therefore, the applicant is not barred from proceeding to a hearing for entitlement to IRB.

ii. The respondent is not entitled to a repayment of IRB.

iii. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

iv. The applicant is entitled to IRB for the period of October 2, 2019 to February 26, 2020 in the amount of $291.83 per week. As the respondent has already paid IRB for this period, no IRB is owing.

v. The applicant is not entitled to ACB.

vi. As the applicant remains within the MIG, and as the MIG limit of $3,500.00 has been exhausted, he is not entitled to the treatment plans in dispute.

vii. As there are no overdue benefits, the applicant is not entitled to interest or an award.

ANALYSIS

Preliminary Issues

7Section 31(1)(b) of the Schedule states that an insurer is not required to pay an IRB in respect to any person who has made, or who knows of, a material misrepresentation that induced the insurer to enter into the contract of automobile insurance or who intentionally failed to notify the insurer of a change in a risk material to the contract.

8Section 52 concerns the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit 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 a wilful misrepresentation or fraud.

9Section 52(1) and (3) provide timelines for repayment requests if a person is liable to repay an amount to an insurer. The insurer shall give the person notice of the amount that is required to be repaid. If the notice required is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

10When the Tribunal is asked to make a determination pursuant to s. 31(1)(b) and s. 52 of the Schedule, the burden of proof lies with the insurer.

11The respondent claims that the applicant is barred from entitlement to IRB because he intentionally failed to notify the respondent of a change in a risk material to the insurance contract between the parties. The respondent further seeks repayment of $5,753.22 plus interest relating to its payment of IRB for the period of October 1, 2019 to February 26, 2020.

12In response, the applicant submits that the respondent has failed to meet its onus to prove that he intentionally failed to give notice of a material change in risk to the insurance contract. The applicant also denies that the respondent is entitled to repayment of IRB and notes that the repayment request notice was not provided within 12 months after the payment was made.

The respondent has not demonstrated that the insurance policy is void for material misrepresentation

13I find that the respondent has not demonstrated, on a balance of probabilities, that the applicant intentionally failed to notify the respondent of a change in a risk material to the insurance contract. As such, the applicant is not barred from entitlement to IRB.

14The respondent indicates that the insurance contract was for personal use. It alleges that the applicant failed to give notice that he was using his insured vehicle for business use, namely driving the vehicle to provide ride-sharing services for Uber and Lyft. The respondent submits that by failing to give notice of the business use of the vehicle, the applicant benefited from paying a lower annual insurance premium. The respondent takes the position that the applicant’s omission amounts to a material change in risk that precludes the applicant from claiming entitlement to IRB.

15The applicant denies that he used his insured vehicle for Uber and Lyft, and he notes that the respondent has not tendered any evidence to support that his insured vehicle was used to provide ride-sharing services. The applicant also submits that he rented a limousine from First Flight Limousine and used the limousine for ride-sharing services for Uber and Lyft.

16I agree with the applicant.

17I find that the respondent’s argument and evidence are lacking with regard to demonstrating that the applicant used the insured vehicle to provide ride-sharing services. Although the accounting reports indicate that the applicant was self-employed, working with Uber since September 1, 2019, working with Lyft from August 20, 2018 to July 28, 2019, and as a limousine driver since January 1, 2019, the respondent has not directed me to any evidence to support that the insured vehicle was used for ride-sharing services for Uber and Lyft. Correspondingly, there is no evidence of a material change in risk or that the applicant intentionally failed to notify the respondent of a change in risk.

18Accordingly, I find that the respondent has failed to meet its evidentiary burden to demonstrate, on a balance of probabilities, that the applicant’s claim for entitlement to IRB is barred pursuant to s. 31(1)(b) of the Schedule.

The respondent is not entitled to a repayment of IRB

19I find that the respondent has not proven, on a balance of probabilities, that it is entitled to repayment of IRB in the amount of $5,753.22 for the period of October 1, 2019 to February 26, 2020.

20The respondent seeks repayment of IRB on the basis that the applicant is disqualified from receiving this benefit because of material misrepresentation, pursuant to s. 31(1)(b) of the Schedule. However, as I have found that the respondent has not met its burden under s. 31(1)(b) of the Schedule, it follows that the applicant is not disqualified from receiving IRB.

21Moreover, the respondent is precluded from recovering IRB pursuant to s. 52(3) of the Schedule as it did not give the applicant notice of the repayment request within 12 months after the payment of IRB. Indeed, while IRB was paid in or around February 2020, the respondent did not seek repayment until December 15, 2022.

22Accordingly, the respondent is not entitled to repayment of IRB pursuant to s. 52 of the Schedule.

The Minor Injury Guideline (“MIG”)

23Section 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.”

24An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from their minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

25The applicant submits that he should be removed from the MIG on the grounds that he sustained serious and permanent physical and psychological injuries as a result of the accident. In response, the respondent submits that the medical evidence demonstrates that the applicant sustained soft tissue injuries as a result of the accident that can be treated within the MIG. The respondent also submits that the applicant failed to provide compelling evidence of any pre-existing medical condition that would preclude recovery in the MIG.

The applicant did not sustain injuries that warrant removal from the MIG

26I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.

27The applicant submits that various medical professionals have consistently diagnosed him with persistent chronic pain and associated limitations across multiple body sites, carpal tunnel syndrome, concussion and post-concussion symptoms, cognitive impairment, sleeping issues, and mood and anxiety disorder. He relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Phebe Hanna, the CNRs of his treating neurologists, Dr. Usman Moghal and Dr. Samina Kazmi, and a Chronic Pain Assessment report dated October 15, 2021 completed by Dr. Grigory Karmy, a chronic pain physician.

28The respondent submits that the medical evidence supports that the applicant only sustained minor injuries as a result of the accident. The respondent also indicates that there are no contemporaneous records to suggest the applicant suffers from chronic pain complaints and psychological impairments that would warrant removal from the MIG. It relies on various insurer examination reports including a neurology report completed by Dr. Alex Jahangirvand, a physiatry report completed by Dr. Yuri Marchuk, a psychology report completed by Dr. Janet Clewes, a dentistry report completed by Dr. Aviv Ouanounou, all dated February 11, 2020, along with a neuropsychology report completed by Dr. Ricki Ladowsky-Brooks and dated September 30, 2020.

29I agree with the respondent. The applicant has failed to establish that he suffers from physical and psychological injuries that warrant removal from the MIG.

30I am not persuaded by the applicant’s medical evidence and submissions as much of the medical evidence before me indicates that the applicant only suffered minor injuries as a result of the accident.

31From a physical perspective, I prefer Dr. Marchuk’s report over Dr. Karmy’s report because there is no objective evidence to support Dr. Karmy’s findings, aside from the report itself. Although Dr. Karmy found that the applicant suffered from chronic pain syndrome, chronic mechanical neck, left shoulder, and lower back pain, sacroiliac joint dysfunction, and myofascial pain syndrome, there is no evidence to support these conclusions aside from the physician’s report.

32Correspondingly, I accept Dr. Marchuk’s finding that the applicant sustained minor injuries as a result of the accident. Indeed, according to the Ambulance Call Report from Peel Regional Paramedic Services dated September 24, 2019 and the Brampton Civic Hospital records dated September 24, 2019 (immediately following the accident), the applicant’s primary complaint was of back pain. In the weeks following the accident, the applicant complained to Dr. Hanna of numbness and tingling to his left arm and left leg. However, Dr. Hanna did not make a diagnosis, and there are no contemporaneous records documenting ongoing pain complaints or functional limitations. Further, there is no evidence that the applicant’s carpel tunnel syndrome diagnosis is related to the accident.

33Similarly, from a cognitive perspective, I prefer the reports of Dr. Jahangirvand and Dr. Ladowsky-Brooks over Dr. Karmy’s report. While Dr. Karmy diagnosed the applicant with persistent symptoms following a mild traumatic brain injury, chronic post-traumatic headaches, and a sleep disorder, his findings are not supported by the medical evidence. According to Dr. Karmy, the applicant reported that he lost consciousness after the accident. This is inconsistent with the Ambulance Call Report and the Brampton Civic Hospital records both of which indicate that the applicant did not lose consciousness. Further, a head CT scan dated October 22, 2019 was unremarkable.

34Moreover, I accept the findings of Dr. Jahangirvand and Dr. Ladowsky-Brooks that the applicant’s accident-related injuries were minor. Dr. Jahangirvand found that the applicant likely sustained post-concussion syndrome, but from a neurological perspective, he likely sustained a minor injury, and the prognosis was good. He also indicated that the applicant’s headaches were attributed to medication overuse due to increased intake of Tylenol and/or morphine.

35Additionally, Dr. Ladowsky-Brooks conducted the neuropsychological testing and addressed the applicant’s cognitive complaints of fragmented sleep, anxiety, and pain. She found that there was no diagnosis from a neuropsychological perspective. She also noted that there was no obvious concussion or injury to the head, and that it did not appear that the applicant sustained a mild injury to the brain. To rule out any abnormality, Dr. Ladowsky-Brooks recommended that the applicant undergo a CT or MRI scan of the brain. However, there is no evidence that the applicant underwent further diagnostic imaging to the head.

36Finally, from a psychological perspective, I also prefer Dr. Clewes’ report over Dr. Karmy’s report for the same general reasons as noted above. Although Dr. Karmy diagnosed the applicant with a mood disorder with symptoms of passenger anxiety with post-traumatic features, there are no records documenting psychological complaints or impairments. Rather, Dr. Karmy heavily relies on the applicant’s self-report. Therefore, I accept Dr. Clewes’ opinion that the applicant did not suffer a psychological impairment as a result of the accident.

37In light of the above, I find that the applicant has failed to meet his evidentiary burden to demonstrate on a balance of probabilities that his injuries fall outside the MIG.

Income Replacement Benefits (“IRB”)

38Two sections of the Schedule define the process required to determine entitlement to IRB. To receive payment for pre-104-week IRB under s. 5(1), the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. He must identify essential tasks of his employment, which tasks he is unable to perform, and to what extent he is unable to perform them. To receive payment for post-104-week IRB under s. 6, the applicant must demonstrate on a balance of probabilities that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.

39The applicant bears the burden of proving, on a balance of probabilities, that he meets these tests and criteria.

40At the time of the accident, the applicant was self-employed on a full-time basis as a limousine driver for First Flight Limousine, and he provided ride-sharing services for Uber. The parties each obtained accounting reports, but neither disputes Davis Martindale’s calculation that the weekly amount of IRB payable is $291.83.

41Neither party disputes that the applicant initially suffered a substantial inability to perform the essential tasks of his employment for the period of October 1, 2019 to February 26, 2020. Accordingly, he is entitled to IRB in the amount of $291.83 per week for this period. Further, no IRB is owing since the respondent has already paid IRB for this period.

42However, in submissions for the written hearing, the applicant further seeks entitlement to IRB for a period not in dispute, notably for the period of February 26, 2020 to April 23, 2023. In response, the respondent maintains that it properly denied the applicant’s entitlement to IRB and that the applicant did not continue to suffer a substantial inability to perform the essential tasks of his employment as a result of the accident.

The applicant is only entitled to IRB for the period of October 1, 2019 to February 26, 2020

43I find that the applicant is only entitled to IRB in the amount of $291.83 per week for the period of October 1, 2019 to February 26, 2020. Since the respondent has already paid IRB for this period, I further find that no IRB is owing.

44I decline to consider the applicant’s entitlement to IRB for the period of February 26, 2020 to April 23, 2023 as the Tribunal does not have jurisdiction to adjudicate a dispute relating to IRB for this period.

45It is well established that an insured person may apply to the Tribunal to resolve a dispute in respect of an insured person’s entitlement to IRB pursuant to s. 280 of the Insurance Act, R.S.O. 1990, s. I.8. However, there is no evidence before me that the applicant took any steps prior to the written hearing to dispute entitlement to IRB for the period of February 26, 2020 to April 23, 2023.

46Specifically, the applicant did not identify this period of entitlement in his application filed on August 31, 2021. He did not seek to add this period of entitlement as an issue in dispute at the case conference held on December 12, 2022. Further, he did not seek to add this period of entitlement as an issue in dispute by way of a motion at any time prior to the written hearing.

47Consequently, while the applicant is entitled to IRB for the period in dispute of October 1, 2019 to February 26, 2020, he has not properly disputed his entitlement to IRB for the period of February 26, 2020 to April 23, 2023. As the latter is not an issue in dispute, it does not require adjudication.

Attendant Care Benefits (“ACB”)

48Section 14(2) of the Schedule provides that ACB is only payable in the event that an insured person sustains an injury that is not a minor injury. Since I have concluded that the applicant’s accident-related injuries meet the Schedule’s definition of minor injury, the applicant is not entitled to ACB.

The Treatment Plans

49Having found that the applicant remains within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that he is not entitled to the treatment plans in dispute.

Interest

50The applicant is not entitled to interest pursuant to s. 51 of the Schedule as there are no overdue benefits,

Award

51Pursuant to s. 10 of Reg 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit.

52As I have concluded that the applicant remains in the MIG and is not entitled to the treatment plans in dispute and attendant care benefits, it follows that no benefits were unreasonably withheld or delayed. Also, as indicated above, no IRB is owing.

53As no benefits are payable, the respondent is not liable to pay an award.

ORDER

54For the reasons outlined above, I find that:

i. The respondent has not demonstrated that the insurance policy is void for material misrepresentation, and therefore, the applicant is not barred from proceeding to a hearing for entitlement to IRB.

ii. The respondent is not entitled to a repayment of IRB.

iii. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

iv. The applicant is entitled to IRB for the period of October 2, 2019 to February 26, 2020 in the amount of $291.83 per week. As the respondent has already paid IRB for this period, no IRB is owing.

v. The applicant is not entitled to ACB.

vi. As the applicant remains within the MIG, and as the MIG limit of $3,500.00 has been exhausted, he is not entitled to the treatment plans in dispute.

vii. As there are no overdue benefits, the applicant is not entitled to interest or an award.