Citation: Elkhidir v. Intact Insurance Company, 2023 ONLAT 20-011803/AABS

Licence Appeal Tribunal File Number: 20-011803/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:

Fath Elrahman Elkhidir

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Justin Mariani, Counsel

For the Respondent:

Nickola Haddad, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Fath Elrahman Elkhidir (the “applicant”) was involved in an automobile accident on April 21, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 9, 2017 (including amendments effective June 1, 2016) (the “Schedule”).¹ The applicant was denied certain benefits by Intact Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES IN DISPUTE

2The following issues are agreed to be in dispute:

1. Is the applicant entitled to income replacement benefits (“IRBs”) in the amount of $166.63 per week for the period from September 16, 2017 to December 31, 2017?

2. Is the applicant entitled to IRBs in the amount of $166.63 per week for the period from January 1, 2018 to December 31, 2018, less 70% post-accident income?

3. Is the applicant entitled to IRBs in the amount of $166.63 per week for the period from January 1, 2020 to date and ongoing?

4. Are the applicant’s injuries predominantly minor as defined in the Schedule and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (“the MIG”)?

5. Is the applicant entitled to a medical benefit in the amount of $2,067.80 for physiotherapy services proposed by MedEx Health Services in a treatment plan dated May 4, 2018?

6. Is the applicant entitled to a medical benefit in the amount of $4,384.04 for psychological services proposed by Elite Specialist Group, Inc. in a treatment plan dated May 28, 2019?

7. Is the applicant entitled to a medical benefit in the amount of $2,686.00 for an orthopaedic assessment proposed by Elite Specialist Group Inc. in a treatment plan dated February 13, 2019?

8. Is the applicant entitled to a medial benefit in the amount of $2,857.76 for a psychological assessment proposed by Elite Specialist Group Inc. in a treatment plan dated May 5, 2019?

9. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the applicant is not entitled to IRBs for any of the periods claimed.

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

BACKGROUND

5The applicant was injured as the driver of a motor vehicle that was involved in a t-bone accident while proceeding through an intersection in Toronto. He was driving for Uber at the time of the accident.² He was transported to Scarborough Hospital immediately following this collision, where he was treated and released.³

6The applicant’s position is that his injuries are not minor in nature and warrant his removal from the MIG, and that he is entitled to the four treatment plans in dispute. He further claims entitlement to income replacement benefits (“IRBs”).⁴

7The respondent’s position is that the applicant’s injuries are predominantly minor and do not warrant removal from the MIG, and that the treatment plans in dispute are not reasonable and necessary. The respondent also denies the applicant’s claim for IRBs, arguing that the applicant failed to submit a Disability Certificate (“OCF-3”) in a timely fashion, as well as asserting that the applicant does not meet his burden of proving that he is unable to perform the essential tasks of his pre-accident employment.⁵

PROCEDURAL ISSUES

Length of the Applicant’s Written Submissions

8The respondent submits that the applicant failed to comply with the Case Conference Report and Order (“CCRO”) dated July 20, 2021 regarding the page limit for submissions. The applicant submitted a document that is 17 pages when the CCRO sets a page limit of 10.

9The respondent made no requests regarding the adjudication of the hearing, however, merely noting that this has occurred and that “the submissions are too long.”⁶ The applicant did not respond to this allegation in his written reply submissions.

10I agree that the applicant has failed to comply with a term of the CCRO, as it is evident that his written submissions are well over the limit of 10 pages. But I also note that the respondent provided no reasons as to how it is prejudiced by the additional seven pages in the written submissions of the applicant.

11As a result, I see no reason to exclude the last seven pages of the applicant’s written submissions. I considered the entirety of these submissions in rendering my decision.

Admissibility of Dr. Pradeep Alexander’s Orthopaedic Assessment Report

12In its written submissions, the respondent makes reference to the applicant’s assessment report of Dr. Pradeep Alexander, orthopaedic surgeon, dated May 29, 2019.⁷ The respondent requests that this report be excluded from evidence, as it was not provided prior to the applicant’s submissions for the hearing.⁸

13I am not ruling on this matter, as the applicant at no point in his initial written submissions or reply submissions refers to the report of Dr. Alexander. As a result, I have not referred to this report in the writing of my decision.

ANALYSIS

Is the Applicant Entitled to IRBs?

14The test for eligibility to receive IRBs within the first 104 weeks of an accident is set out in s. 5(1) of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, they suffer a substantial inability to perform the essential tasks of their pre-accident employment within 104 weeks after the accident. The test for eligibility to receive IRBs after the first 104 weeks is set out in s. 6(2) of the Schedule. An insured person is eligible to receive IRBs after the first 104 weeks of disability if they are suffering a complete inability to engage in any employment for which they are reasonably suited by education, training, or experience.

15The applicant bears the burden of proving on a balance of probabilities that he is entitled to IRBs for the periods and amounts claimed.

Is the Applicant Precluded from Claiming IRBs Due to the Late Submission of His OCF-3?

16Section 36(2) of the Schedule mandates that an applicant seeking IRBs shall submit a completed OCF-3 with his or her application. Section 36(3) sets out that an applicant is not entitled to IRBs for any period before the completed disability certificate has been submitted.

17I find that the applicant is not entitled to IRBs for any period prior to November 22, 2021 when he submitted a completed OCF-3, as required by s. 36(3) of the Schedule. I further find that the applicant is not entitled to IRBs beyond this period of time as the applicant has failed to comply with the provisions outlined in s. 5(1) and s. 32(1) of the Schedule.

18The applicant did not submit an OCF-3 until he made his submissions for this hearing. The applicant states in his written submissions that an OCF-3 signed by Dr. Mylinh Duong, chiropractor, and dated September 29, 2017 was submitted in 2017 to the original named insurer, The Co-operators.⁹ He does not cite a date or time when the document was submitted.¹⁰ Also, the header of the OCF-3 copy included in the applicant’s hearing brief has been cut off. This makes it impossible to determine when or where the document was originally transmitted, or if it was transmitted.¹¹

19I prefer the respondent’s submissions with regard to the OCF-3 submission. The respondent submits that the applicant did not submit this OCF-3 to any insurer until filing his submissions with the Tribunal for this hearing on November 22, 2021, well over four years after the subject accident. The respondent further submits that it sent requests to the applicant requesting an OCF-3 in written correspondence dated January 16, 2019 and March 18, 2019¹² following an initial request for the OCF-3 from The Co-operators.¹³

20The applicant has no explanation as to why the OCF-3 was not submitted when the insurer specifically requested the form in correspondence as noted above. The requests for the OCF-3 are clearly stated. The respondent cites s. 36(1-4), and s. 33(1) and s. 33(6) as rationale for these requests and provides the basis for the suspension of the IRB if the form is not submitted.

21While the applicant characterizes these letters as threats to provide information that has already been provided, I find that the letters recite the relevant sections of the Schedule. The applicant also never explains why the OCF-3 was simply not re-submitted, which would have presumably resolved the matter.

22In addition, the applicant has failed to comply with the time provisions outlined in s. 5(1) and s. 32(1) of the Schedule. With regard to s. 5(1), the applicant has not demonstrated a substantial inability to perform the essential tasks of his employment within 104 weeks of the accident as the OCF-3 was not submitted until over four years after the accident. And with regard to s. 32(1), the applicant did not properly notify the insurer no later than the seventh day after the circumstances arose to give rise to the entitlement to the benefit. The applicant’s failure to comply with the time provisions outlined in the Schedule is fatal to his claim for IRBs as it precluded the respondent from assessing his entitlement to the benefit contemporaneous with the period claimed.

23I find that the applicant has not demonstrated that he submitted the OCF-3 to the respondent before November 22, 2021 and has failed to comply with the notice provisions in the Schedule. As a result, I find that the applicant is not entitled to IRBs for any period claimed.

The Minor Injury Guideline

24The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in the Schedule.

25Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. Pursuant to s. 18(2), an applicant may receive funding for treatment beyond this limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they can provide evidence of an injury that is not a minor injury.

26It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities.¹⁴

27The applicant submits that the MIG should not apply because he sustained both physical and psychological injuries that are not included within the Schedule’s definition of a minor injury.

Can the Applicant’s Injuries be Defined as Minor Injuries?

28I find that the applicant has not met his burden to demonstrate that he sustained physical or psychological injuries as a result of his accident that are not included in the definition of a minor injury.

29The evidence does not support a conclusion that the applicant sustained physical injuries beyond the soft-tissue injuries included within the framework of the MIG definition as provided in the Schedule. Although the applicant relies on three primary collections of evidence—namely the clinical notes and records (“CNRs”) of Dr. Lucy Magharious, family doctor of the applicant, which includes hospital reports and medical imaging results;¹⁵ the OCF-3 noted above; and the treatment plans in dispute, authored by Dr. Duong as noted above and Dr. Richard Tutak, chiropractor,¹⁶ and by Dr. Andrew Shaul, psychologist¹⁷—I do not find them compelling.

30I find that the CNRs of Dr. Magharious are unpersuasive. Virtually all of the content in Dr. Magharious’ CNRs is illegible, due to it being hand-written initially and later apparently faxed. The medical imaging reports (consisting of CT scans of the applicant’s spine, chest, abdomen, and pelvis) contained within Dr. Magharious’ CNRs are typed and therefore legible, although they contain no results that would diagnose the applicant with injuries beyond soft-tissue injuries.

31Treatment and assessment plans, absent any corroborating evidence to support the diagnoses contained in them, are uncompelling. While what is noted in OCF-18s, OCF-3s, and other claim forms can be helpful in the determination of an applicant’s minor injury status, as well as in the assessment of the reasonable and necessary nature of any recommended treatment, these notes do not substitute for more thorough medical examinations.

32The OCF-18 of Dr. Duong dated May 4, 2018 provides no compelling evidence demonstrating that the applicant sustained an injury that is not a minor injury. Dr. Duong recommends sessions of chiropractic and physiotherapy treatment, and notes a “chronic state of injuries” as a barrier to recovery.¹⁸ But there is little beyond this single sentence, aside from two lines about the applicant’s “low back pain especially when bending at waist level,” along with brief notations like “heavy lifting” and “sleeping” that are unhelpful in determining the extent of the applicant’s injuries. There are no specific recommendations in the OCF-18 regarding how to deal with the “chronic” barrier noted above.

33The OCF-18 by Dr. Tutak dated February 13, 2019 focuses solely on soft-tissue injuries and sequelae, including diagnoses of whiplash associated disorder, sprains and strains of the thoracic and lumbar spine, and headache.¹⁹ There is mention of psychological sequelae in the additional comments section of this treatment plan, although I assign little weight to his analysis as he is a chiropractor without any claimed psychological training.²⁰

34I prefer the respondent’s medical evidence with regard to the physical treatment plans. The respondent relies on the insurer examination (“IE”) report and subsequent paper review addendum provided by Dr. Mbongani Kabila, general practitioner, dated June 22, 2018 and April 17, 2019.²¹ These are the most comprehensive medical examinations and assessments of the applicant’s injuries and sequelae provided to me, and as a result I assign them significant weight.

35Dr. Kabila assessed the applicant and concluded that he “sustained a minor injury as defined in the SABS Minor Injury Guideline.”²² Dr. Kabila further noted that the applicant “only suffers a mild impairment in relation to his lower back symptomology.”²³ The applicant has presented no compelling evidence to refute Dr. Kabila’s report, which was then supported by his paper review.

36Dr. Kabila’s diagnoses also align with the diagnostic imaging reports provided as part of the CNRs of Dr. Magharious. They showed no injuries that could be assessed as more than soft-tissue injuries included in the definition of a minor injury in s. 3 of the Schedule.

37I also find that the applicant has not demonstrated that he suffers from psychological injuries as a result of the accident.

38Most of the diagnoses in the two psychological OCF-18s signed by Dr. Shaul dated May 5, 2019 and May 25, 2019 are reliant on the self-reporting of the applicant. While Dr. Shaul notes in the May 5 OCF-18 that the applicant is experiencing “adjustment disorders” as well as sleep difficulties, irritability, concentration and memory problems, driving phobia, and depression²⁴ as a result of the accident, he bases his conclusions on applicant complaints and not on a detailed interview or psychological testing. Also, these diagnoses come in the form of OCF-18s—which as noted above are often uncompelling absent corroborating medical evidence to support their recommendations.

39I prefer the medical evidence of the respondent, which has been provided by Dr. Louise Koepfler, psychologist, who submitted an IE dated July 4, 2019 and a paper review dated November 13, 2019.²⁵ Dr. Koepfler’s interview elicited valuable information regarding the applicant’s mood and behaviour that was not mentioned in the Dr. Shaul treatment plan. The applicant told Dr. Koepfler that he was having difficulties at home due to the death of his mother and the birth of a son in recent weeks, which he seemingly talked about more than anything related to the accident.²⁶

40The issues reported by the applicant could also form part of the reason behind the results of the psychological testing conducted by Dr. Koepfler, which found that he self-reported feelings of depression and moderate anxiety, and that he expressed “strong feelings of victimization.”²⁷ Dr. Koepfler notes that the applicant commented that he was driving every day and that there were “no driving situations that he avoids.”²⁸ This is a telling comment, given that the subject accident is reportedly the root of his alleged psychological injuries and sequelae.

41All of the above leads me to assign significant weight to Dr. Koepfler’s conclusion that the applicant does not suffer from any significant accident-related psychological impairments, and as a result does not require treatment for same outside of the MIG.²⁹

42As a result, I find that the applicant does not suffer from non-minor physical or psychological injuries as defined by the Schedule. His injuries do not rise to the level that would warrant the applicant’s removal from the MIG and its $3,500.00 funding limit on treatment.

Are the Treatment Plans Reasonable and Necessary?

43As it is unclear whether or not the $3,500 limit of the MIG has been exhausted, I will rule with regard to the reasonable and necessary nature of the treatment plans in dispute.

44I find that the applicant is not entitled to the treatment plans in dispute as they have not been proven to be reasonable and necessary.

45My reasoning for not finding the treatment plans to be reasonable and necessary follows the same lines as that expressed above with regard to the question of whether the applicant has suffered impairments that rise to the level of not being minor injuries as defined in the Schedule.

46I prefer the more extensive analysis of Dr. Kabila for the reasons noted above in the section assessing the minor-injury question when it comes to the two physical treatment plans in dispute. I accept Dr. Kabila’s conclusions that the applicant does not require further facility-based treatment and that he can be treated with a home-based program designed to improve his range of motion and improve his muscle strength.³⁰

47I prefer the more extensive analysis of Dr. Koepfler for the reasons noted above in the section of this decision assessing the minor-injury question when it comes to the two psychological treatment plans in dispute. I accept Dr. Koepfler’s conclusions that the applicant does not require additional psychological care, and that the prognosis for a full recovery is “excellent” without any such assessment or therapy sessions as recommended in these treatment plans.³¹

48As a result, I find that all of the treatment plans in dispute are not reasonable and necessary.

Award and Interest

49Pursuant to s. 10 of Regulation 664, an applicant may be entitled to an award if the Tribunal determines that a respondent unreasonably withheld or delayed payment of a benefit.

50I find that the applicant is not entitled to such an award, as there is no evidence showing that the respondent withheld the payment of any benefits. The applicant also chose not to make an argument for such an award as part of his written submissions, so I have no evidence to consider here.

51Pursuant to s. 51 of the Schedule, interest is payable on the overdue payment of benefits. Having found no benefits payable, it follows that no interest is payable.

ORDER

52The applicant is not entitled to IRBs because of the late submission of the OCF-3 and not following the provisions of the Schedule.

53The applicant sustained a minor injury and is subject to the MIG and the $3,500.00 funding limit on treatment.

54The treatment plans in dispute are not reasonable and necessary.

55No interest is payable.

Footnotes

1. 1O. Reg. 34/10 (as amended).
2. 2Applicant Written Submissions, page 4. (NOTE: All page citations are in reference to the actual page numbers of the submitted PDF documents, not to any internal page numbering within the documents themselves.)
3. 3Respondent Document Brief, Tab 10 (Toronto Paramedic Services Report, September 19, 2017).
4. 4Applicant Written Submissions, pages 16-17.
5. 5Respondent Written Submissions, pages 1-3.
6. 6Respondent Document Brief, page 2.
7. 7Applicant Document Brief, Tab 3, Part 1 (Orthopaedic Assessment of Dr. Alexander, May 29, 2019).
8. 8Respondent Written Submissions, page 2.
9. 9Applicant Document Brief, Tab 7, Part 2 (OCF-3 of Dr. Duong, September 29, 2017).
10. 10Applicant Written Submissions, page 4 (paragraph 10), page 15 (paragraphs 59-61).
11. 11Applicant Document Brief, Tab 7, Part 2, page 439.
12. 12Respondent Document Brief, Tab 5, pages 29ff. and pages 39ff.
13. 13The Co-operators was the original named insurance company named as the respondent in this application when it was filed on September 19, 2017. The current insurer, Intact, accepted priority on December 21, 2017.
14. 14Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
15. 15Applicant Document Brief, Tab 2, Part 1, pages 52-135 (CNRs of Dr. Magharious).
16. 16Ibid. Tab 6, Part 4, pages 394-401 (OCF-18 of Dr. Duong, May 4, 2018); Tab 6, Part 5, pages 404-413 (OCF-18 of Dr. Tutak, February 13, 2019).
17. 17Ibid. Tab 6, Part 7, pages 414-425 (OCF-18 of Dr. Shaul, May 25, 2019); Tab 6, Part 6, pages 426-435 (OCF-18 of Dr. Shaul, May 5, 2019)
18. 18Applicant Document Brief, Tab 6, Part 4, page 399 (OCF-18 of Dr. Duong, May 4, 2018).
19. 19Ibid. Tab 6, Part 5, page 408 (OCF-18 of Dr. Tutak, February 13, 2019).
20. 20Ibid. Tab 6, Part 5, page 412.
21. 21Respondent Document Brief, Tab 8 (IE of Dr. Kabila, June 22, 2018); Tab 15 (Addendum Report of Dr. Kabila, April 17, 2019).
22. 22Ibid. Tab 8, page 77.
23. 23Ibid. Tab 8, page 76.
24. 24Applicant Document Brief, Tab 6, Part 6, page 418, pages 423-425 (OCF-18 of Dr. Shaul, May 5, 2019).
25. 25Respondent Document Brief, Tab 9 (IE of Dr. Koepfler, July 4, 2019); Tab 21 (Paper Review of Dr. Koepfler, November 13, 2019).
26. 26Ibid. Tab 9, page 104.
27. 27Ibid. Tab 9, page 107.
28. 28Ibid. Tab 9, page 104.
29. 29Ibid. Tab 9, page 110.
30. 30Ibid. Tab 8, page 80.
31. 31Ibid. Tab 9, page 108.