Citation: Shaikh v. Economical Insurance Company, 2023 ONLAT 20-009837/AABS

Licence Appeal Tribunal File Number: 20-009837/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:

Muhammad Shaikh

Applicant

and

Economical Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR:

D. Gregory Flude

APPEARANCES:

For the Applicant:

Muhammad J. Shaikh, Applicant

Syed Raza, Counsel

For the Respondent:

Julianne Brimfield, Counsel

Held by Videoconference:

October 20, 2021 and June 28, 2022

OVERVIEW

1The applicant, Muhammed Shaikh, was involved in a motor vehicle accident on July 16, 2019. He alleges that he suffered impairments in that accident that entitle him to a non-earner benefit (“NEB”) and physiotherapy treatment under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The respondent, Economical Insurance Company (“Economical”), takes the position that Mr. Shaikh suffered predominantly minor injuries in the accident, and he does not meet the test for entitlement to a NEB, that is, he does not suffer from a complete inability to live a normal life.

2The Schedule requires Economical to pay for medical benefits for Mr. Shaikh’s reasonable and necessary treatment if he sustained “an impairment as a result of an accident.” Where the impairment results from predominantly minor injuries, as defined in the Schedule, there is a cap of $3,500 for the medical and rehabilitation treatment. If the impairment is not from predominantly minor injuries, then Economical is liable to fund treatment and attendant care to a limit of $65,000. Mr. Shaikh carries the onus of demonstrating, on a balance of probabilities, that he is entitled to the higher limit.

3The applicable test for entitlement to a NEB is that Mr. Shaikh has sustained an impairment that causes a complete inability to live a normal life. That test is further defined as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The test, then, requires Mr. Shaikh to lead evidence of his pre-accident activities and evidence that he is now “continuously” prevented from engaging in those activities as a result of an impairment sustained in the accident. His burden of proof is on a balance of probabilities.

ISSUES IN DISPUTE

4The issues to be decided in the hearing are:

1. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from August 14, 2019 to July 16, 2021, denied by the respondent on June 18, 2020?

2. 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 Minor Injury Guideline?

3. If the applicant is not within the Minor Injury Guideline,

(a) Is the applicant entitled to a medical benefit in the amount of $2,642.15 for physiotherapy services recommended by Progressive Rehab (2121587 Ontario Inc.) as per OCF-18 dated February 5, 2020, and denied on March 11, 2020?

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

5Is the applicant entitled to interest on any overdue payment of benefits?

ANALYSIS

Non-Earner Benefit and Section 33 Requests

6I find that Mr. Shaikh is not entitled to a NEB on three grounds. One ground would partially excuse Economical from the obligation to pay. Mr. Shaikh did not provide a completed application for the benefit for many months. Secondly, he has failed to comply with reasonable requests from Economical for medical documentation. The effect of this failure is to disentitle him to payment of the benefit during any period of non-compliance unless there is a reasonable explanation for non-compliance. Mr. Shaikh had not produced the requested documents or given any explanation, let alone a reasonable explanation, for not doing so, up to the date of the hearing. Finally, the preponderance of Mr. Shaikh’s complaints pre-date the accident and the accident had minimal impact on his ability to live the normal life he previously enjoyed.

7Entitlement to a non-earner benefit is set out in s. 12 of the Schedule. The applicable parts of that section state:

The insurer shall pay a non-earner benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies any of the following conditions:

1. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

8“Complete inability” is further defined in s. 3(7)(a) of the Schedule as:

a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

9Pursuant to s. 12(3) of the Schedule, a non-earner benefit is payable for 104 weeks after the accident. Economical submits that Mr. Shaikh did not complete his application for the benefit until in and around June 18, 2020. In its submission, even if I were to find Mr. Shaikh entitled to the non-earner benefit, its liability for payment would commence on June 18, 2020 and terminate on the second anniversary of the accident, July 16, 2021. It is Economical submission, however, that it has no obligation to pay Mr. Shaikh a NEB at all because of his failure to fulfil his obligations under s. 33.

10The Schedule places an obligation on Economical to pay a non-earner benefit to Mr. Shaikh if Mr. Shaikh is continuously unable to engage in substantially all of the activities he engaged in before the accident. The onus is on Mr. Shaikh to prove on a balance of probabilities that he meets the test. Economical is not the only party upon which the Schedule places obligations. Mr. Shaikh also has obligations under the Schedule, most notably, to cooperate with Economical to ensure Economical has the information it may reasonably need to assess the merits of his claim. This obligation is set out in s. 33 of the Schedule under the heading, “Duty of the applicant to provide information.” The applicable provisions of s. 33 state:

An applicant shall, within 10 business days after receiving a request from the insurer, provide the insurer with the following:

1. Any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

11The Schedule establishes consequences for non-compliance with the disclosure duty. Particularly, pursuant to s. 33(6), Economical is relieved of the obligation to pay the NEB during any period of non-compliance. Economical submits that Mr. Shaikh has never disclosed the documents set out in the s. 33 request and the 104 week payment period is long passed.

12Section 34 addresses the possibility that Mr. Shaikh may have a reasonable explanation for not producing the requested information. This is understandable given that many medical records are in the possession of third-party service providers and the delay may not be the responsibility of a diligent insured. There may, of course, be many other reasonable explanations and I will not speculate further here on what other circumstances may provide a reasonable explanation. In the current case Mr. Shaikh has produced no family doctor medical records since November 2019, four months post accident. Nor has he provided a reasonable explanation, either in his submissions or in correspondence with Economical.

13Mr. Shaikh only addresses the failure to respond to the s. 33 document request in one paragraph in his reply submissions. He cites the case of Janaratharajan v Aviva Insurance Canada, 2021 CanLII 76646 (ON LAT) where, at paragraph [22] of the decision, the Tribunal finds that the failure to introduce clinical notes and records at the hearing was not fatal to a finding that the applicant’s injuries were not minor. I can see nothing in Janaratharajan case that addresses disentitlement to a non-earner benefit as a result of a failure to produce documents pursuant to a s. 33 request. It is entirely distinguishable on its facts.

14While I will address the history of the application and delivery of a properly completed Disability Certificate (OCF-3”) in more detail later, suffice it to say for the purposes of the s. 33 analysis that Economical takes the position that it first received a completed OCF-3 on or about June 8, 2020. According to s. 36(4)(c) of the Schedule. Economical was entitled to ask for the disclosure of further information and was not liable to pay the benefit if that request was made within 10 days of receipt of the OCF-3. On June 18, 2020, Economical sent a letter to Mr. Shaikh and his counsel asking for:

• Statutory Declaration (please review provided version)

• Clinical Notes and Records of Dr. Y. Jabbar & Dr. Waraich of Kennedy Medical Clinic from November 6, 2019 to Present

• Clinical Notes and Records of any other practitioner visited from July 26, 2019 to present

15Economical submits that it has not received the clinical notes and records from Kennedy Medical Clinic despite the fact that the Tribunal ordered Mr. Shaikh to produce them in the case conference report and order released April 6, 2021. Mr. Shaikh does not allege that:

a. he has complied with the request;

b. the requested documents are unreasonable and not necessary to determine his entitlement to a non-earner benefit; or

c. he has a reasonable explanation for not providing the requested documents.

He made no submissions beyond his reliance on the Janaratharajan case discussed above, which I have found distinguishable from the current facts.

16Pursuant to s. 33, as a result of the non-disclosure, Economical is not required to pay a NEB from the date when it submits it received a completed application, June 8, 2020, until the end of the 104-week eligibility period on July 16, 2021. It remains to be determined when Mr. Shaikh’s application for a non-earner benefit was complete. If he completed the application formalities before June 8, 2020, he may be entitled to a NEB up to the date of the request for documents.

Timing of Completion of Application

17I find that Mr. Shaikh did not complete his application for a NEB until June 8, 2020. While he did submit OCF-3 forms before June 8, 2020, they were unsigned and Economical correctly returned them for signature.

18A NEB falls within the definition of a “specified benefit” as set out in s. 36 of the Schedule. There are specific requirements for applying for a specified benefit. Section 32 mandates that to seek benefits of any nature Mr. Shaikh was required to file an Application for Accident Benefits (“OCF-1”). While there are time limits for when this form was to be completed and submitted to Economical, there is no issue that Mr. Shaikh applied in a timely manner and that the OCF-1 was complete. The problems arose with his OCF-3.

19Starting with s. 32(5) through s. 32(7), the Schedule sets out the necessary steps to apply for a benefit. The language is clear. Section 32(5) required Mr. Shaikh to submit “a completed and signed” application for benefits. Subsection (6) mandates that if Economical receives an “incomplete or unsigned” application, it was required to advise Mr. Shaikh of the defects in the form and ask him to submit a properly completed form. Subsection (7) limits Economical’s right to require correction of the form. It may not hold up the payment of the NEB on the basis of an incomplete form unless:

(a) the insurer, after a reasonable review of the incomplete application, is unable to determine, without the missing information, whether a benefit is payable; or

(b) the application has not been signed by the applicant.

20In my view (a) and (b) in subsection (7) contemplate two distinct situations. In (a), notwithstanding a form lacks information, if Economical can still determine entitlement to the benefit, then it is to process the claim despite the deficiencies. In situation (b), where the signature of the applicant is missing, Economical must send the incomplete document back. Its obligation to return the form under subsection (6) is mandatory, the subsection uses the word “shall,” and application forms lacking signatures are treated separately from forms with other types of incomplete information. Thus, Mr. Shaikh’s submission that Economical was required to process the non-earner benefit application because if contained the required information is not supported by the language of the Schedule.

21Mr. Shaikh sent three OCF-3 forms to Economical. Two were unsigned and Economical promptly returned them pointing out that the signatures were missing. The letters were sent directly to Mr. Shaikh and his legal representative. Mr. Shaikh denied receipt of the first two letters. Whether he personally received them, they were sent to his legal representative.

22In addition to asserting that he did not receive the two letters returning the unsigned disability certificates to him, Mr. Shaikh submits that Economical was in breach of its obligations to advise his service provider, Progressive Rehab, of the defective OCF-3s and its failure to do so is fatal to it assertion that the OCF-3 are defective. I can see no support for this proposition in the clear wording of Schedule.

23The applicant relies on Snagg. v Certas Home and Auto Insurance Company, 2021 CanLII 60477 (ON LAT) (“Snagg”). In Snagg a minor applicant had submitted an OCF-3 seeking a NEB before his 16th birthday. The OCF-3 was not supportive of entitlement to a NEB. Certas took the position that the OCF-3 was not complete because it did not support entitlement. I note that the case does not deal with an OCF-3 that is not signed by the applicant. At paragraph [20] the Tribunal reaffirms the need for a properly signed OCF-3:

Ultimately, the Respondent conflates the application for a specified benefit with the test for entitlement. Instead, the two issues should be viewed as separate steps. It is non-compliance with the application, the first step, that bars the Applicant from filing an appeal. The second step, whether the Applicant meets the entitlement test, is something that is best addressed in a substantive hearing. [emphasis added]

24Mr. Shaikh’s application for a NEB was not completed until he submitted a signed OCF-3 on June 8, 2020. In accordance with s. 32(8), he was not entitled to a NEB until he had applied for it by providing a signed OCF-3. Since I have found that he was non-compliant with a reasonable request for documents under s. 33, a request to which he is yet to respond, and is not entitled to a NEB before the end of his eligibility period on July 15, 2021, he is not entitled to a NEB and his claim for NEB is dismissed.

25I would also dismiss Mr. Shaikh’s claim for an NEB for his failure to demonstrate a complete inability to live a normal life. Since the analysis of the evidence in this regard is largely medical, I will deal with it when dealing with the applicability of the minor injury provisions in s. 18(1) and (2).

Mr. Shaikh sustained minor injuries.

26I would venture to guess that the question of whether an applicant falls within the $3,500 coverage limitation in s. 18(1) of the Schedule for persons who have suffered predominantly minor injuries has spawned more decisions from the Tribunal than any other section of the Schedule. A superficial search on for the term “MIG,” the abbreviation of the Minor Injury Guideline, results in approximately 1,400 cases that have considered the term. Having read many, if not most, of those decisions, it appears that they can be divided into two broad categories: those cases that treat the definition of a minor injury in s. 3(1) of the Schedule as a list and find people with diagnoses not on the list not to be subject to the $3,500 coverage limitation, and those cases that introduce a second analytical step considering the degree of impairment the non-listed condition causes. With respect to my colleagues who disagree, in my opinion s. 18(1) requires a two step analysis.

27The two step analysis mandated by s. 18(1) arises out of the somewhat confused wording of the section. The basis for entitlement to benefits under the Schedule is impairment. Starting with the definition of accident in s. 3(1) of the Schedule, which states: “accident” means an incident in which the use or operation of an automobile directly causes an impairment,” through the various benefit provisions in Part II, III and IV, an insured must have sustained an impairment. For example, s. 5(1) requires payment of an income replacement benefit “to an insured person who sustains an impairment as a result of an accident.” The other entitlement sections in the Schedule use the same or similar wording.

28Section 18 of the Schedule sets the coverage limits depending on the severity of impairment. Section 18(1) muddies the waters somewhat by conflating an impairment with an injury. The $3,500 coverage limit is applicable where the insured “sustains an impairment that is predominantly a minor injury.” It is the use of the word “predominantly” in this section that makes it clear that the Legislature did not intend the Tribunal to simply determine if an insured had an injury that falls within the listed injuries in the definition of a minor injury in s. 3(1) without then considering the extent to which the non-minor injury impairs. Thus, a finding of a psychological condition simpliciter does not warrant removal of the $3,500 coverage limit. It requires a further examination to determine the extent to which that diagnosed condition impairs function.

29The injuries Mr. Shaikh is alleged to have suffered in the accident are set out in the first unsigned OCF-3 he submitted. Dr. Charanbir Singh, a chiropractor, lists the complaints in the section of the form entitled “Injury and Sequela Information (Extended).” He delineates a number of unspecified “injuries” to the muscles of the neck, thorax, abdomen, lower back, pelvis and rotator cuff of the shoulder. He also diagnoses strains and sprains to the cervical, thoracic, and lumbar spine and the sacroiliac joint, wrist, and knee. He does not identify the difference between an injury and a sprain or strain. He notes headaches, and then moves into areas where he has no expertise and diagnoses depression and stress. His list also includes dizziness, chest pain, biomechanical lesions and paraesthesia of the skin. Dr. Singh estimates the period of an inability to live a normal life to last for nine to twelve weeks.

30This list remains unchanged in the version of the OCF-3 submitted by the same clinic eleven months later on July 8, 2020, and signed by chiropractor, Dr. Amnol Sidhu. Again, there is an estimate of nine to twelve weeks of total disability with no explanation why the original estimate could have been so totally inaccurate that Mr. Shaikh’s conditions remained unchanged after approximately 48 weeks but now are only expected to last nine to twelve more weeks.

31In his evidence-in-chief, Mr. Shaikh painted a rosy picture of his pre-accident abilities. According to his evidence, despite a little bit of shoulder pain, he was fully independent in his personal care, such as dressing and grooming; he did laundry, housekeeping chores, and yard maintenance. His son, in his testimony, described Mr. Shaikh building a back deck on the house, but on closer examination this was some time before the accident. His son described Mr. Shaikh cooking for the family, but again on closer examination this did not occur with the frequency suggested in the examination-in-chief, but rather might occur once a month when Mr. Shaikh wanted a special meal. Mr. Shaikh also described relatively robust, pre-accident mental health. He used the terms “okay, not bad” to describe his mental health. My difficulty with this rosy pictured is that it is belied by his family doctor’s medical records.

32Even a cursory review of Mr. Shaikh’s family doctor’s notes and records indicates an extensive engagement with the medical system. Leading up to the accident in July 2019, Mr. Shaikh visited his family doctor on numerous occasions before the accident complaining of exactly those conditions he ascribes to the impact of the accident on his health and well-being. I note the following in the months leading up to the accident:

• March 5, 2019 – neck pain x months, aggravated on neck movement, difficulty getting up and walk, DDD at C5-6 and C6-7, mild degenerative changes at C2 to C5, not much improvement with medication…painful and restricted ROM of neck.

• March 12, 2019 – chronic right shoulder pain, difficulty with sleeping, muscle stiffness and difficulty with ADLs

• April 8, 2018 – c/o stiffness in right shoulder, difficulty moving neck, complains of severe pain in the right shoulder…painful and restricted ROM. At this visit the doctor filled out the forms so Mr. Shaikh could apply for a disabled parking permit.

• April 24, 2019 - Pain Rt shoulder > left … Unable to lifdr [sic “lift?”] left shoulder, currently having B/L shoulder pain, worse in left, constant, severe, unable to do ADLs including dressing/undressing … unable to sleep.

• May 6, 2019 – Left shoulder pain > Rt shoulder, unable to lift left arm/shoulder

• May 19, 2019 – loss of appetite, feels nauseous weight; 54.8 kgs, Assessment; Depression, weight loss

• June 13, 2019 – because of pain is feeling very low, wants to cry, no energy, no motivation, appetite suppressed, losing weight, can’t sleep, grooming marginal, slumped in chair, depression dues to chronic pain.

• July 6, 2019 (10 days before the accident) – Chronic left shoulder pain, restricted ROM in all directions, unable to dress up and comb with Lf arm, unable to sleep on LF shoulder, low mood taking Anti depressants, weight loss, weight = 55.6 kgs, weight 2 months ago = 54.8 kgs.

• July 9, 2019 (one week before accident) – currently having B/L shoulder pain, worse in left, constant, severe, unable to do ADLs including dressing/undressing, unable to sleep.

33Through the months following the accident Mr. Shaikh continued to complain about pain, but by September 19, 2019 the family doctor notes “intensity of pain has decreased although pain is there, sleep is a bit better, mood is improving, appetite is improving, weight 54.5 kg.” By October 3, 2019 the family doctor notes “his nausea and appetite has improved, now feels less tired and fatigued, sleep is better than before, mood is improving.” On October 8 the doctor noted “getting better, sleep is better, mood stable.” It appears that on November 6, 2019 Mr. Shaikh had an episode similar to his episode on June 13, 2019 as the doctor notes “unable to sleep crying spell, shouts at home.”

34To the extent that Mr. Shaikh’s family doctor’s clinical notes and records have been produced, they demonstrate that virtually all of Mr. Shaikh’s current complaints predate the July 16, 2019 accident. With the possible exception of aggravation of pain in his knees, he suffered pre-accident back, neck and shoulder pain. The shoulder pain was constant and severe and prevented him from doing his activities of daily living. Post-accident, between July and November 2019 they show improvement, with the exception of one incident in November. Taking the overall improvement into account, the importance of family doctor records after November 2019 becomes apparent, and Mr. Shaikh’s failure to produce those documents without explanation, either pursuant to Economical’s s. 33 request or pursuant to the Tribunal’s order, leads me to the conclusion that they would not support Mr. Shaikh’s position. I do not hesitate to draw an adverse interest against Mr. Shaikh from his failure to produce the records.

35Mr. Shaikh was also not forthcoming about his pre-accident medical history either with his own assessor, Dr. Wilderman, or with Economical’s assessors. Mr. Shaikh’s lack of candour has tainted Dr. Wilderman’s otherwise excellent report to the point that I cannot accept any of the report’s conclusions.

36Dr. Wilderman examined Mr. Shaikh one year after the accident on July 15, 2020. It is clear that Dr. Wilderman did not have any documented pre-accident history available to him. In his review of Mr. Shaikh’s medical history, Dr. Wilderman notes:

Mr. Shaikh states that his history is significant for right knee pain and bilateral shoulder pain; however, he reports the pain was considerably exacerbated by the subject MVA. The patient reports undergoing right knee surgery in 2014. He reports that his history is otherwise unremarkable. Patient reports he was involved in a subsequent motor vehicle accident in November of 2019, which exacerbated his injuries.

37Working on the belief that everything he observed in his assessment of Mr. Shaikh was a result of the July 16, 2019 accident other than knee pain and bilateral shoulder pain exacerbated by the accident, Dr. Widlerman finds limited range of motion, neck pain, back pain, depression and chronic pain syndrome. Dr. Wilderman acknowledges that his findings are based on what Mr. Shaikh has told of his pre-existing condition when he states in the Conclusion section of the report:

Mr. Shaikh and I discussed his pre-existing condition, which is essential to a valid and reliable diagnosis of chronic pain. Based on my examination and my understanding of his premorbid medical status, I can conclude that there is no indication that Mr. Shaikh’s previous well-managed condition is the sole cause for the development of his current state. There is no evidence that he would be in the exact condition he is now regardless of whether the subject accident occurred. Nonetheless, one would reasonably anticipate that such a premorbid state would complicate his recovery and leave him more vulnerable to developing a chronic pain condition.

38My review of the family doctor’s notes above indicates that these issues were present, diagnosed and being treated before the accident. He was diagnosed pre-accident with fibromyalgia, defined as a chronic pain syndrome, in a July 30, 2019 consultation report of Dr. Edward Lansang of the Willian Osler Health System.

39Mr. Shaikh also relies on the report of Dr. Fayad Hamideh, an internal medicine and rheumatology specialist, dated January 25, 2020. Dr. Hamideh examined Mr. Shaikh because of complaints of diffuse joint pain and stiffness dating back to January 2019, six months before the accident. Dr. Hamideh diagnoses seronegative rheumatoid arthritis, an autoimmune disease not related to the accident. Dr. Hamideh prescribed various drugs and supplements, including prednisone.

40It is hard to see how Dr. Hamideh’s report assists Mr. Shaikh. It addresses a condition and gives a diagnosis not related to the accident. In the absence of Mr. Shaikh’s family doctor notes and records, we cannot see how effective Dr. Hamideh’s proposed treatment regimen was.

41Section 18(1) of the Schedule limits recovery to $3,500 for impairments sustained in an accident that are predominantly minor injuries. In this matter, Mr. Shaikh had an obligation to lead evidence to show that his injuries sustained in the accident were not minor. To do so, he had to be truthful with assessors about the full extent of his pre-existing condition so they could tease out those impairments that were pre-existing and those that were directly attributable to the accident. He was not truthful, and, as a result, has failed to satisfy his onus of establishing that he sustained more than minor injuries.

42The enquiry does not end there, however. Section 18(2) provides that the $3,500 limit does not apply if Mr. Shaikh had a pre-existing condition, documented by a healthcare practitioner prior to the accident, that would prevent recovery if he were limited to the $3,500 limit. The test, then, is a two step approach. Is there a documented pre-existing condition, and has Mr. Shaikh’s health practitioner provided compelling evidence that because of the pre-existing condition, Mr. Shaikh cannot achieve maximal medical recovery if he is limited to $3,500 of treatment?

43Only Dr. Wilderman addresses this issue in his report. He states: “Finally, I can conclude that Mr. Shaikh’s injuries fall outside the Minor Injury Guidelines, as he has developed a chronic pain condition with a psychological component, which cannot be treated within the allotted $3,500.” Based on Dr. Wilderman’s statement, it is the chronic pain condition that would justify treatment beyond the $3,500 limit. To the extent that we have them, Mr. Shaikh’s family doctor’s records show his pain and depression improving from July to November 2019. I have drawn an adverse inference from Mr. Shaikh’s failure to produce further family doctor records and conclude that they would have shown steady improvement. The evidence establishes that the chronic pain condition is not an impairment sustained in the accident, that it has steadily improved and s. 18(2) does not apply.

CONCLUSION

44Reviewing the evidence, particularly Mr. Shaikh’s failure to fully disclose his pre-accident morbidity and the limitations on his activities, I find that the applicant has not satisfied his onus of proving on a balance of probabilities that he sustained an impairment that would lift him out of the $3,500 limit in s. 18(1). Given that he had a chronic pain condition prior to the accident, and there is no evidence that the accident made that condition worse, he has not satisfied his onus to invoke the provisions of s. 18(2).

45In addition to the findings above that he is not entitled to a NEB due to his failure to provide an OCF-3 in a timely manner and respond to a s. 33 request, his evidence on cross-examination, supported by the pre-accident medical records, indicated a severely restricted pre-accident lifestyle that was not impacted markedly by the accident. On that evidence, he has not shown a complete inability to live a normal life.

ORDER

46Mr. Shaikh is not entitled to the relief he seeks. Specifically:

a. He is not entitled to a non-earner benefit.

b. He has not satisfied his onus to proved that his injuries are not minor injuries or that the provisions of s. 18(2) apply to permit funding beyond the $3,500 limit.

c. As he is subject to the $3,500 limit, which has been exhausted, he is not entitled to a medical benefit in the amount of $2,642.15 for physiotherapy services recommended by Progressive Rehab (2121587 Ontario Inc.) as per OCF-18 dated February 5, 2020 and denied on March 11, 2020.

d. As no amounts are owing, he is not entitled to interest or an award under s. 10 of O. Reg 664.

47The application to the Tribunal is dismissed.