Allo v. Intact Insurance, 2023 CanLII 122898

Citation: Allo v. Intact Insurance, 2023 ONLAT 21-011661/AABS

Licence Appeal Tribunal File Number: 21-011661/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:

Youssof Allo

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Applicant: Maria Bihnam, Paralegal

For the Respondent: Modasir Rajabali, Counsel

HEARD: By way of written submissions

OVERVIEW

1Youssof Allo (the “applicant”) was involved in an automobile accident on February 13, 2019, 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 Intact 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:

i. 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 limit and in the Minor Injury Guideline (the “MIG”)?

ii. Is the applicant entitled to physiotherapy services in the amount of $2,461.36, proposed by Hands on Health South in a treatment plan (the “OCF-18”) submitted November 5, 2019, and denied November 11, 2019?

iii. Is the applicant entitled to physiotherapy services in the amount of $2,065.52, proposed by Hands on Health South in an OCF-18 submitted January 28, 2020, and denied February 4, 2020?

iv. Is the applicant entitled to physiotherapy services in the amount of $1,477.00, proposed by Hands on Health South, in an OCF-18 submitted June 9, 2020, and denied June 17, 2020?

v. Is the applicant entitled to physiotherapy services in the amount of $1,377.25, proposed by Hands on Health South, in an OCF-18 submitted July 21, 2020, and denied September 9, 2020?

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

RESULT

3The applicant has not met his onus to demonstrate his accident-related injuries and impairments warrant removal from the MIG. The OCF-18s in dispute are not reasonable and necessary, and no interest is payable.

ANALYSIS

The applicant did not suffer chronic pain that caused functional impairment as a result of the accident

4I find the applicant has failed to prove accident-related chronic pain with functional impairment.

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.” In this case, the applicant seeks to be removed from the MIG because of chronic pain. The Tribunal accepts that chronic pain is not a minor injury as defined in the Schedule. To be removed from the MIG because of chronic pain, the Tribunal has consistently held the applicant must show chronic pain to be more than sequelae from soft-tissue injuries—it must be chronic pain syndrome, or continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability.

6The applicant submits that his long-standing and consistent complaints about his accident-related injuries present as chronic pain, and that his pain symptoms are greater in nature and duration than what should be expected from his injuries. The applicant says he has satisfied his burden of proof by making repeated attempts to seek rehabilitative treatment and assessments to recover from his injuries. The applicant relies on the clinical records and opinions of Dr. Omar Al-Azem (family physician) to support his appeal.

7The respondent argues there is no compelling or objective evidence that the applicant suffers accident-related chronic pain syndrome as a result of the accident. The respondent adds that the applicant has not proven an impairment that would take him out of the MIG. The respondent relies on the section 44 insurer’s examination (the “IE”) of Dr. Pankaj Bansal (family physician).

8The applicant is not arguing he has chronic pain syndrome as suggested by the respondent. Rather, the applicant is saying his pain has been continuous and severe enough to cause suffering and experience impairments in function. I do not agree this is the case, however.

9I find the applicant’s submissions on his injuries are inconsistent with the medical evidence he relies on. The applicant claims he experiences pain to his neck, shoulders, and entire back, as well as in his right thigh extending down along the hamstring region, as a result of the accident. But the applicant’s submissions do not point me to any documented complaints of neck or shoulder pain. The clinical notes and records of Dr. Al-Azem—between November 2016 and July 29, 2021—show the applicant’s complaints of back pain radiating into his left leg. I agree with the respondent that the physical injuries listed at part 5 of the disability certificate (the “OCF-3”) completed by Dr. Seksek (chiropractor) on July 23, 2019, consist of low back pain and strain and sprain of the lumbar spine. So, I accept there is evidence of back pain since the accident.

10The applicant’s submissions about his limitations were not convincing because he does not offer medical evidence to substantiate his self-reported claims, nor to prove they result from accident-related chronic pain. The applicant explains his pain is chronic and poses significant barriers to performing activities of daily living without severe pain despite engaging in physiotherapy. He specifies limitations pertaining to prolonged sitting, walking, bending, reaching, lifting, using stairs, climbing, and looking up or down.

11But the applicant does not direct me to medical evidence from Dr. Al-Azem that substantiates impairment. The applicant did not produce evidence of diagnostic tests to investigate a medical reason for his pain complaints. The applicant’s submissions did not produce evidence of physical examinations that show his limitations are consistent with his injuries and pain complaints.

12While I accept the applicant was prescribed medication to help treat and tolerate pain, I find the applicant’s evidence is insufficient to show the pain interferes with his activities and driving, or that he cannot function without his pain medication. The applicant says he funded his own rehabilitative treatment after the accident, but does not point me to evidence that shows this intervention addressed the functional limitations he claims, or what progress was made. All I see produced by the applicant are ongoing complaints of pain to Dr. Al-Azem for almost two years. The ongoing presence of pain is insufficient in and of itself to remove the applicant from the MIG; there must also be compelling medical evidence of functional impairment that is shown to be caused by accident-related chronic pain. The applicant has failed to do this.

13In fact, I find the objective medical evidence put before me by the respondent contradicts the applicant’s claim of impairment due to accident-related chronic pain. Dr. Basal performed an IE of the applicant’s injuries on September 28, 2019. Although the applicant voiced pain complaints to Dr. Bansal that were consistent with those made to Dr. Al-Azem, the applicant also shared he was independent with his activities of daily living and was able to sustain his employment as a driver. I find the outcomes of the physical examination performed by Dr. Bansal are consistent with the applicant’s report. Dr. Bansal determined the applicant had full range of active motion in his lumbar spine (i.e., low back), neck, shoulders, elbows, wrists, and hands. Dr. Bansal detected no valid signs of musculoskeletal, orthopaedic, or neurological injury related to the accident, and no functional abnormalities were reported. Dr. Bansal concluded, from a musculoskeletal perspective, there would be no reason why the applicant would have a physical impairment in relation the accident, adding that the applicant sustained only uncomplicated, self-resolving soft-tissue injuries involving his lower back. A second physical examination of the applicant’s injuries was completed by Dr. Bansal on May 18, 2021, and produced the same results. I find the evidence of Dr. Bansal to be compelling because it involves objective medical findings obtained during a physical examination that corroborate the applicant’s independence of function.

14In conclusion, I am not convinced the evidence presented by the applicant is sufficient to prove impairment arising from accident-related chronic pain, and I therefore find the applicant should remain in the MIG.

The disputed OCF-18s

15The applicant remains in the MIG. The respondent indicates the MIG has been exhausted, and the applicant does not dispute this. Therefore, an analysis of whether the OCF-18s in dispute are reasonable and necessary is not required.

Interest

16There are no benefits payable, therefore no interest is owing.

ORDER

17The application is dismissed.