Ahmed v. The Co-operators, 2023 CanLII 23614

Citation: Ahmed v The Co-operators, 2023 ONLAT 20-006449/AABS

Licence Appeal Tribunal File Number: 20-006449/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:

Montasir E.A. Ahmed

Applicant

and

The Co-operators

Respondent

DECISION

ADJUDICATOR:

Dominique Setton

APPEARANCES:

For the Applicant:

Samia M. Alam, Counsel

And Jade Borne, Paralegal

For the Respondent:

Emily Schatzker, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Montasir E.A. Ahmed, was injured in an automobile accident on June 8, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule) from The Co-operators, the respondent.

2The respondent denied the applicant’s claims, including an orthopaedic assessment because it had determined that all of the applicant’s injuries fit the definition of a “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG). As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.

ISSUES IN DISPUTE

3The following issues are to be decided:

(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 limit and in the MIG?

(ii) Is the applicant entitled to $2,486.00 for an orthopaedic assessment recommended by Canadian Health and Wellness in a treatment plan in a treatment plan (“OCF-18”) dated April 10, 2018 and denied on May 1, 2018?

(iii) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(iv) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG. According to the submissions of the parties, the MIG limits have been exhausted, so it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plans. The applicant is also not entitled to an award or interest. The application is dismissed.

ANALYSIS

The Minor Injury Guideline (MIG)

5The 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 defined in the Schedule.

6S. 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap under s. 18(2) if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

7The Tribunal has found that chronic pain syndrome would remove an injured person from the MIG, as this diagnosis is not included in the definition of “minor injury” in s. 3(1) of the Schedule.

8I find that the applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG on the basis of a pre-existing condition, chronic pain, and/or a psychological impairment.

Pre-existing Condition

9Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. The applicant must provide compelling evidence meeting the following requirements:

(i) There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

10A pre-existing condition will not automatically exclude a person’s impairment from the MIG, as it must be shown to prevent maximal recovery within the cap imposed by the MIG.

11The applicant argues that he has a pre-existing condition, which was due to a soccer injury to his right knee, which caused a tear to his meniscus and ACL. He submits that this injury was exacerbated as a result of the motor vehicle accident. Accordingly, he submits should be removed from the MIG.

12This, however, is only part of the test to meet for removal from the MIG based on a pre-existing condition. It is not enough for an applicant to simply have a pre-existing impairment. Rather, the applicant must demonstrate that the exacerbation prevents his maximal medical recovery if he is kept within the MIG. The applicant relies on an ultrasound and x-ray taken May 18, 2016 showing the injury to the meniscus and a large effusion or swelling. An MRI of the same joint taken on June 10, 2016 shows the swelling, or effusion, as well as a “large bucket-handle tear of the medial meniscus,” and a “complete tear of an anterior cruciate ligament.”

13To meet the second part of the s. 18(2) requirement, the applicant provided an OCF-3 by Dr. Abbas, who was his family doctor, dated August 15, 2017, that confirmed the pre-existing condition, stating that he had “right knee pain- exacerbating a pre-existing condition” and that he had a significant “soft tissue injury” causing neck back and shoulder pain. Dr. Abbas also notes anxiety and depression. The doctor prescribed Naproxen and referred the applicant to a neurologist for his reported head injury and for physiotherapy. In a medical note by Dr. Abbas, dated June 13, 2017, he recommends physiotherapy to manage his back and neck.

14The applicant attended physiotherapy and provided the report from Canadian Health and Wellness (CHW). The physiotherapist there treated him with pain modulation, and moist heat packs, strengthening exercises, and other treatments such as breathing exercises, over the treatment period, from July 12, 2017 to January 24, 2018. The main finding of that report shows “sprain and strain” of the shoulder/arm, knee and joints and low back pain, and reduced stability. What was recommended was home exercise. It is noted that he attended the treatment regularly, and yet he also reported that he suffered headaches and dizziness, and his gait and posture were found to be abnormal. I note that there is no indication from CHW that the applicant would be prevented from reaching maximum medical recovery if he remained in the MIG.

15The applicant reported that he did not take the Naproxen, which had been prescribed and that he took “over the counter” medications instead. There was no explanation as to why he did not fill the prescription.

16In a later x-ray dated July 15, 2021, the results show that there is no joint effusion or swelling, and the alignment is “normal” to the right knee, which in my view suggests the applicant’s condition was improving. Yet, the applicant submits the condition was worsening at this time because of a comment in the x-ray reports noting “mixed sclerotic ant lucent focus involving the medial tibial spine of uncertain etiology. Given the absence of other findings, an MRI is suggested for further evaluation.” However, I find there is no medical opinion provided by his family doctor with respect to this x-ray, and as a result, I do not put any weight on the applicant’s assertion that his condition was worsening or that this is evidence that his recovery would be prevented if he is kept within the MIG.

17The applicant consulted a new family doctor, Dr. Joshua Stern, who on June 29, 2021, noted no swelling, no dislocation, and a right knee “normal examination,” although the applicant claims to have pain since the motor vehicle accident (MVA) and lower back pain.

18The respondent disagrees with the applicant’s position that the torn meniscus should be considered outside of the MIG, because the torn meniscus was pre-existing. The applicant has not shown that the MVA has caused an injury.

19The respondent contends that the applicant has not provided evidence of an exacerbation of the right knee injuries due to the MVA. I agree.

20Where the applicant relies on the Statutory Declaration that the previous injury only affected his right knee before the accident and after the accident it affected his whole leg, back and shoulders and restricted his ability to stand for long periods of time, I agree with the respondent that the Statutory Declaration does not provide a causal link between the pre-existing right knee injury and the allegations the applicant has made.

21I find the applicant has not provided any reports from his family doctor between the time of the soccer accident, which caused the pre-existing condition, and the MVA to corroborate his submissions on s. 18(2). Nor has he provided medical evidence from his family doctor after the MVA to show that his maximal recovery was prevented by being kept within the MIG.

22It is the onus of the applicant to provide medical evidence that the pre-existing medical condition would prevent him from achieving maximal recovery within the MIG, which he has not provided.

23To support removal from the MIG under s. 18(2), the applicant relied upon the decision of Saheb v. Zenith Insurance Company, 2021 CanLII 11872 (ONLAT). In that case there was medical evidence showing the insured person suffered from a psychological condition and that she had suffered a tear to her meniscus, among other injuries. Section 18(2) applied to the applicant’s pre-existing condition, which was psychological. The tear to the meniscus was not considered a bar to removing her from the MIG. In my opinion, this decision is distinguishable in that the insured person provided medical evidence that satisfied s. 18(2), due to her pre-existing psychological condition. Here, the applicant has not provided a medical opinion or compelling medical evidence that his knee impairment was exacerbated to the point where he is unable to achieve maximal medical recovery if kept within the MIG.

24In addition, the applicant submits that a torn meniscus falls outside of the MIG because it is not within the definition of a “sprain” as it is not an injury to a tendon or a ligament. As detailed above, the evidence shows that the torn meniscus came as a result of a soccer injury, and not as a result of the MVA.

25In summary, I find that the applicant has not demonstrated that maximal medical recovery is prevented if kept within the MIG based on his pre-existing condition.

Chronic Pain

26The Tribunal has consistently found that for chronic pain to take someone out of the MIG, it must affect their functionality.

27The applicant submits that because he has alleged that he has been in pain for more than six months, a formal diagnosis of chronic pain is not required for removal from the MIG. The respondent submits that the applicant has not been consistent in reporting any complaints of chronic pain to his family doctor, although he has made visits post-accident for unrelated medical matters.

28The respondent submits that the applicant has not reported an ongoing or acute pain that affects his well-being, or a reliance on pain medication or a reliance on healthcare providers. In addition, there is no medical evidence from his family doctor to corroborate any functional impairments caused by chronic pain.

29I find there is no medical evidence that the applicant’s accident-related injuries have had a detrimental impact on his functionality. The applicant submitted that because his self-report of pain in the Statutory Declaration exceeded 3-6 months, no further formal evidence was required. The respondent however, submitted that in the absence of a diagnosis of chronic pain, the Tribunal has used the American Medical Association ("AMA") Guides as a criteria for evaluating chronic pain claims. While this is true, it is not strictly required, and the applicant did not provide submissions on the six criteria to assist the Tribunal.

30In any event, this applicant’s declaration must be supported by medical evidence that establishes how an applicant’s functionality is impaired and that the chronic pain is the cause of the disability. The applicant did not provide medical evidence to show he was suffering from chronic pain or that his pain was impeding his function. He reported pain to his family doctor, and the physiotherapist, but there is no medical evidence that shows that his functionality was impaired. On a balance of probabilities, I find the applicant has not shown that he suffers from chronic pain, such as to remove him from the MIG.

Psychological Impairment

31Lastly, psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.” The applicant did not provide any medical evidence that he consulted a psychologist or psychiatrist, who provided a report of his or her findings. Although the applicant reported feeling depressed and suffering from PTSD, he did not provide objective medical evidence diagnosing these impairments nor has he demonstrated that these impairments were caused by the accident. As a result, I find that the applicant has not provided evidence that he suffers from a psychological impairment.

32I find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.

33It is my understanding that the MIG limits have been exhausted. As I have found that that applicant is not entitled to treatment beyond the MIG, it is not necessary for me to consider whether the applicant is entitled to the orthopaedic assessment recommended by Canadian Health and Wellness in a treatment plan dated April 10, 2018.

Award

34Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

35As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

36As there are no benefits owing, no interest is payable.

CONCLUSION

37For the reasons outlined above, I find that:

(i) The applicant sustained predominantly minor injuries as defined under the Schedule. Accordingly, it is not necessary for me to determine whether the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted.

(ii) The applicant not entitled to an award under Regulation 664; and

(iii) No interest is payable.

38This application is dismissed.