20-009089/AABS

Licence Appeal Tribunal File Number: 20-009089/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:

Nor Ibrahim

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Applicant:

Nor Ibrahim, Applicant

Isir Abdi, Applicant’s Daughter

For the Respondent:

Heather Morrow, Claims Representative

Gauri Gogna, Counsel

Somali Interpreters:

Court Reporter:

Olivia Hajdas, Associate Counsel

Fowzia Ahmed, Layla Sheikhnur

Jason Nebulong

HEARD: by Videoconference:

March 21 and 22, 2023

OVERVIEW

1Nor Ibrahim, the applicant, was involved in an automobile accident on November 20, 2019. He was the seat-belted driver of a vehicle in a parking lot that was hit on the drivers’ side by another vehicle reversing out of a parking spot at very low speed. The applicant’s airbags did not deploy, he did not lose consciousness, he was able to exit his own vehicle, and he drove his vehicle home. Police/fire/ambulance did not attend the scene.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). He was denied benefits by the respondent, Belair Direct, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PROCEDURAL ISSUES

3On March 7, 2023, the respondent filed a Notice of Motion with the Tribunal to dismiss the proceeding, or for an Order imposed that would exclude all evidence to be produced on behalf of the applicant, including witnesses to be called. The motion was heard at the outset of the hearing. The respondent submitted that the applicant failed to respond to any of its communications before the hearing. It also submitted that the applicant failed to provide any updated productions or evidence that he intended to rely upon at the hearing. As a result, the respondent was prejudiced. The applicant submitted that he did not receive any communication from the respondent before the hearing.

4According to the respondent, all attempts to communicate with the applicant before the hearing were by email. After clarifying, it became apparent that the respondent had the applicant’s incorrect email address. Unfortunately, the incorrect email address had been provided by the applicant’s former representative.

5I accept that the applicant was not intentionally withholding information by not responding to the respondent’s requests. It was simply that he was not receiving them. The respondent’s motion was denied based on this miscommunication.

6While discussing the respondent’s motion, the applicant submitted that he had not received the original CCRO dated December 9, 2020, or the shared document brief that was filed in September 2022. They were only sent to the applicant’s former representative and not shared with the applicant. As a result, the applicant was unaware of any production requests.

7The applicant confirmed that he would not be calling any witnesses at the hearing, and he did not plan to introduce any new evidence. He agreed to rely on the updated shared document brief dated September 2022.

8After standing the hearing down for several hours to allow the applicant time to review the shared document brief with his daughter, the applicant confirmed that he was ready and prepared to proceed with the hearing.

ISSUES

9The issues in dispute are:

i. Is the applicant entitled to receive a non-earner benefit of $185.00 per week from December 20, 2019 to date?

ii. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 limit in s.18(1) of the Schedule?

iii. Is the applicant entitled to $1,579.34 for chiropractic services, proposed by Fern Wellness Clinic in an OCF-18 (“plan”) that was denied by the respondent on June 16, 2020?

iv. Is the applicant entitled to $1,353.72 for chiropractic services, proposed by Fern Wellness Clinic in a plan that was denied by the respondent on July 20, 2020?

v. Is the applicant entitled to $2,450.00 for a chronic pain assessment, proposed by Community Health and Counselling Services Inc. in a plan that was denied on March 6, 2020?

vi. Is the applicant entitled to $2,529.22 for a mental health assessment, proposed by Community Health and Counselling Services Inc. in a plan that was denied on March 6, 2020?

vii. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

10The applicant is not entitled to a non-earner benefit.

11The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG. He has not demonstrated that any pre-existing or psychological condition would warrant removal from the MIG.

12The treatment plans in dispute are not payable as they are for treatment beyond the MIG.

13The applicant is not entitled to interest, as none of the benefits in dispute are payable.

ANALYSIS

Is the applicant entitled to a non-earner benefit?

14I find that the applicant is not entitled to a non-earner benefit. To receive a non-earner benefit, a person must prove that they suffer a complete inability to carry on a normal life as a result of an accident. A person suffers a complete inability to carry on a normal life if they sustain an impairment that continuously prevents them from engaging in substantially all of the activities in which they ordinarily engaged before the accident.

15Problematically, the applicant, who was self-represented, offered little in the way of supportive medical evidence that would corroborate his subjective pain complaints. He did not call on any witnesses, cross-examine the respondent’s witnesses, or refer to any documentary evidence that would support his case. It is the applicant’s onus to establish that he suffers a complete inability to carry on a normal life as a result of the accident. I find that he has failed to do so.

16The applicant testified that he has been suffering from back/neck pain, leg pain, headaches, dizziness, mobility issues, and eye pain since the accident. He testified that he recently underwent eye surgery to relieve increased pressure in his eyes. Again, he provided no medical evidence related to an eye condition or eye surgery. He also testified that he has not been prescribed any pain medication for his accident-related impairments. He only takes over the counter Tylenol.

17According to the applicant, he has been unable to play soccer, go out socializing with friends/family, do housekeeping/home maintenance, or go grocery shopping since the accident. He spends most of his time watching television. When asked, the applicant qualified that he has not been meeting up with friends/family in person because of COVID-19, and not because of his impairments. He testified that he continues to drive, just not for more than two hours at a time. Once again, the applicant provided no corroborating witness testimony or medical evidence. Siimilarly, the clinical notes from the applicant’s long-time family physician, Dr. Ghanim Abdelesalam, make no mention that the applicant has been incapable of engaging in activities of daily living as a result of the accident.

18The respondent submitted that according to Ms. Lyndy Goldlust’s in-home occupational therapy assessment dated February 2020, the applicant was not actually doing any of the housekeeping, home maintenance, or cooking before the accident. She also noted that the applicant continued to socialize with friends, just over the phone, since the accident. Ms. Goldlust concluded that the applicant was capable of resuming all of his pre-accident activities. That same sentiment was echoed by Dr. Ijaz Chaudhry, emergency medicine physician, and Dr. Allan Kopyto, general practitioner, in their assessment reports dated February 2020.

19The applicant’s testimony was also inconsistent. First, he testified that was not working at the time of the accident and that he had not worked since the accident. Second, he later testified that he was working full-time as an Uber driver at the time of the accident and continued to work one to two hours each week as an Uber driver after the accident. Third, the applicant did not produce any income statements or financial documents that would support fewer hours worked as an Uber driver after the accident. Regardless, based on his own testimony, he was working at the time of the accident and continued working part-time after the accident. In doing so, and acknowledging same, he has failed to satisfy the first prong of the test for a non-earner benefit, according to s.12(1) of the Schedule and is therefore not entitled to the benefit.

20Another inconsistency related to the accident damage to the applicant’s vehicle. The applicant testified that the drivers’ side window of his vehicle was broken, but when photos of the vehicle damage were shown to him, he changed his testimony. Because of the applicant’s inconsistent testimony, I have given more weight to the objective evidence on file. I find that the objective evidence on file does not support the applicant’s version of events or his position that he suffered a complete inability to carry on a normal life as a result of the accident.

21While some of the applicant’s daily activities may have been reduced as a result of his accident-related impairments, I find that it does not equate with a complete inability to carry on a normal life.

Are the applicant’s injuries subject to the MIG?

22I find that the applicant has not satisfied his burden to prove that his accident-related impairments warrant treatment beyond the MIG.

23The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits funding for medical and rehabilitation benefits for predominantly minor injuries to $3,500, although an applicant may be removed from the MIG if they can demonstrate that a pre-existing condition documented by a medical practitioner prevents maximal medical recovery under the MIG. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

24The applicant submits that he should be removed from the MIG on the basis that he continues to suffer from debilitating back pain, neck pain, leg pain, headaches, and eye pain. The evidence presented does not support this.

25For example, in February 2020, Dr. Kopyto concluded that the applicant’s prognosis for a full recovery was good. Dr. Kopyto found that the applicant suffered uncomplicated strains of the neck and back as a result of the accident. Dr. Chaudry also concluded that the applicant suffered uncomplicated soft-tissue sprains and strains. They both concluded that the applicant’s injuries were consistent with “minor injuries” as defined in the Schedule.

26Dr. Chaudhry reported that the applicant denied any pre-existing neck or back pain. Though there was reference by Dr. Abdelesalam in his clinical notes and records to discrete episodes of back pain, neck pain, and headaches between 2016 and 2019, there is no indication that these episodes impacted the applicant’s ability to work or his daily life at the time of the accident. There is also no indication that any pre-existing medical conditions would have impacted the applicant’s ability to achieve maximal medical recovery through treatment within the MIG.

27The applicant’s assessors - Dr. Chaudry, Dr. Kopyto, and Ms. Goldlust – all noted inconsistencies between informal observation and formal testing. Dr. Kopyto testified that the applicant’s back ranges of motion were self-limited during formal testing, but he could freely move on and off the examination table and take off and put on his shoes without any assistance or apparent distress. Dr. Chaudry testified that the applicant only reported neck and lower back pain as a result of the accident. He made no mention of any eye pain, dizziness, or headaches.

28In the absence of medical evidence that would suggest otherwise, I accept that the applicant’s accident-related injuries are minor, as defined by the Schedule. The applicant has not met his onus to prove that his injuries warrant treatment beyond the MIG on a balance of probabilities.

Are the treatment plans in dispute reasonable and necessary?

29The applicant’s accident-related impairments do not warrant treatment beyond the MIG. It is my understanding that treatment has been approved up to the MIG limits, but not yet fully incurred. According to the respondent, the applicant has $126.59 of funding available within the MIG.

30The treatment plans in dispute all propose treatment for injuries outside of the MIG. The appropriate box was checked on Part 4 of each treatment plan indicating that the impairments in question are not predominantly minor injuries. Therefore, an analysis of whether the treatment plans in dispute are reasonable and necessary is not required. This is because I have found that the applicant’s injuries fall within the MIG.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Because none of the benefits in dispute are payable, interest does not apply.

ORDER

32The applicant is not entitled to a non-earner benefit.

33The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG. He has not demonstrated that any pre-existing or psychological condition would warrant removal from the MIG.

34The treatment plans in dispute are not payable as they are for treatment beyond the MIG. The applicant has not met his burden to prove that they are reasonable and necessary.

35As no benefits are overdue, interest does not apply.