Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-013243/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:
Abduljabar Abdulkarim Applicant
and
Cooperators General Insurance Co. Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the Applicant: Abduljabar Abdulkarim, Applicant Purva Vaidya & Mark Stoiko, Counsel Kirti Dhagavkar, Articling Student
For the Respondent: Lindsay Malles, Accident Benefit Claims Representative Kathleen .F O'Hara, Counsel Olivia Duguay, Articling Student
Interpreter: Fanar Rafo, Arabic
Court Reporters: Cindi Adalath and Guido Riccioni
Heard by Videoconference: May 23-25, 2023
OVERVIEW
1Abduljabar Abdulkarim (the “applicant”), was involved in an automobile accident on February 22, 2021, 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 Cooperators General Insurance Co (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for the resolution of the dispute.
ISSUES
2The issues in dispute are:
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 Minor Injury Guideline limit?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from October 5, 2021, to date of the hearing?
iii. Is the applicant entitled to a medical benefit of $4,887.11 for physiotherapy services, proposed by Total Wellness Clinic in a treatment plan/OCF-18 (“plan”) submitted October 6, 2021?
iv. Is the applicant entitled to a medical benefit of $52.20 ($1,352.20 less $1,300 approved) for physiotherapy services, proposed by Mavis Eglington Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted September 2, 2021?
v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are found to be within the Minor Injury Guideline (“the “MIG”). The applicant is not entitled to the disputed treatment plans.
4The applicant is not entitled to the income replacement benefit for the disputed period as he made a material misrepresentation regarding his city of residence before and at the time of the accident.
5The applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
6The respondent requested permission to include the Treatment Confirmation Form (“OCF-23”) of Suratwala Krupa, physiotherapist, in evidence for the hearing. The applicant did not object and the document was admitted into evidence.
7The applicant requested permission to include its supplementary brief into evidence, which the respondent did not object to. Therefore, the document was allowed to be put to the witnesses and into evidence.
8The respondent submitted that the applicant failed to comply with the Tribunal’s Case Conference Report and Order of November 29, 2022 to produce the required medical documents in advance of the hearing. The respondent submitted that an adverse inference should be drawn.
9The applicant disagreed with these arguments and submitted he made his best efforts to obtain records from third parties. I reminded the parties that the applicant carries the onus of proving his case on the issues of the MIG and an IRB. Though I understand the respondent’s frustration with the applicant’s failure to produce documents ordered by the Tribunal, I also agree with the applicant that instead of drawing an adverse inference, the matter shall be decided based on the evidence provided by the parties. Therefore, I will not be drawing an adverse inference.
10The applicant also moved to include a brief of case law related to causation in evidence. After some discussion between the parties, it was agreed that this document would serve as a reference to the case law referred to in the applicant’s closing submissions related to causation.
11Finally, the applicant sought to include several exhibits into evidence including log notes and medical records that were not put to a witness. The respondent objected to this and submitted that the applicant must put evidence to a witness for it to be included in evidence, and for it to be considered by the Tribunal.
12I will be considering the evidence as requested by the applicant, as I find the evidence to be relevant to the issues in dispute. This is because the rules of evidence before the Tribunal are relaxed. This position is supported by section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”). However, I will also consider the weight to be assigned to this evidence. This is because the applicant was unable to speak to, understand, or recall the information presented in this evidence.
ANALYSIS
The applicant’s injuries are within the Minor Injury Guideline
13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.” An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG.
14An insured person may also be removed from the MIG if they can establish, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. Further, the Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
15The applicant submits that his accident-related physical injuries warrant exclusion from the MIG. He submits that as a result of his accident, he suffered a wrist fracture as well as a back and neck injury, which are not MIG injuries. The applicant argues that he was diagnosed with a scaphoid fracture, an injury outside of the MIG, as well as chronic, myofascial pain.
16The applicant relied on his testimony as well as some of the clinical notes of his family doctor, the findings of his left wrist x-ray, a letter from Dr. Sharon Kim, plastic surgeon, a consultation report from Dr. Anushi Patgunarajah, physician, and an Emergency Report of September 11, 2022, to demonstrate that his injuries require removal from the MIG.
17The respondent submits that the applicant has not shown that the injuries he suffered were a result of the accident. The respondent relied on the cross-examination of the applicant, the records of his family doctor, the transcript of the applicant’s Examination Under Oath (“EUO”) of December 17, 2021, the applicant’s extended health benefits from Desjardins, the OCF-23, and its letters sent to the applicant from 2021 and 2022 related to outstanding documents and section 33 requests.
18The applicant rebuts these arguments, arguing that it is clear and evident that his injuries were caused by the accident, and not his employment. The applicant relies on the leading case law related to causation, including Sabadash v. State Farm et al., 2019 ONSC 1121.
19I find that the applicant has not shown that his physical injuries warrant removal from the MIG. I agree with the respondent’s position that the applicant has not provided persuasive evidence that his wrist, neck and back injuries were caused by the accident.
20Though I appreciated the applicant’s testimony that he did not suffer any pain related to his accident until several months after the accident, I find that this position was not supported by contemporaneous medical evidence. When reviewing the applicant’s clinical notes and records, the earliest acknowledgement of the applicant’s accident was made on September 13, 2021, by his family doctor.
21The applicant failed to provide evidence causally linking his hand, neck and back injuries to his accident. Though I can appreciate that the applicant may not have required immediate, medical assistance after his accident, the clinical notes and records fail to account for the alleged accident-related injuries until approximately seven months after the accident. This period where no accident-related issues were reported required, in my view, further explanation, because it is the applicant’s burden to demonstrate that his impairments were caused by the accident. In this case, the applicant failed to provide such an explanation for the delay in reporting his impairments.
22I agree with the respondent that the applicant did not meet his evidentiary onus of showing that he suffers from accident-related injuries. I was not provided with medical evidence that supported the applicant’s position that he sustained impairments in the accident and was in pain for several months as a result of the accident, Instead, as noted by the respondent, the applicant’s left wrist x-ray opined that the applicant’s wrist injury was a pre-existing impairment. I also agree with the respondent’s arguments that the applicant had reported pre-existing back pain before his accident, as noted by his family doctor.
23The applicant did not provide a sufficient explanation for this discrepancy. Therefore, the applicant cannot escape the MIG based on his physical injuries, as I have found that he has not demonstrated that they were caused by the accident.
24The applicant argued that he suffers from pre-existing injuries that cannot reach maximum medical recovery if subjected to the financial limits of the MIG. The applicant submits that his x-ray supports that his wrist fracture was a pre-existing injury, as was his back injury. The applicant relies on the same evidence discussed above.
25The respondent submits that the applicant has not met his evidentiary onus of providing medical evidence demonstrating that he suffered pre-existing injuries prior to the accident, which requires treatment beyond the financial limits of the MIG. The respondent argues that the applicant has not provided any medical evidence to support his argument that his pre-existing injuries requires treatment beyond the financial limits of the MIG. The respondent relied on the OCF-23, which confirmed that the applicant’s accident-related injuries, meaning his back, neck and wrist pain fell within the MIG.
26I find that the applicant has not shown that his pre-existing injuries requires removal from the MIG to reach maximum medical recovery. I agree with the respondent’s argument that none of the applicant’s medical professionals specifically comment on the applicant’s pre-existing conditions or specifically recommend that the applicant requires removal from the MIG to achieve maximum medical recovery. Moreover, I cannot ignore that the applicant’s treating practitioners who completed his OCF-23, also supported that the applicant’s injuries fall within the MIG. Therefore, his pre-existing injuries, meaning his wrist fracture, neck and back pain, do not require further treatment to reach maximum, medical recovery.
27Since the parties confirmed that the applicant has exhausted the financial limits of the MIG, I do not need to address the treatment plans in dispute.
The applicant is not entitled to the income replacement benefit because of a material misrepresentation
28At the beginning of the hearing, the respondent sought to clarify the disputed period related to the IRB. The respondent submits that since the applicant has returned to his employment, the applicant should limit his claim to such. The applicant agreed and limited his IRB claim from October 5, 2021, until December 20, 2022.
29To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
30The applicant submits that he cannot perform the essential tasks of his employment repairing tables at Commonwealth Handling Equipment Pool (“CHEP”) for grocery store displays as a result of his accident-related injuries, and relies on his testimony, the clinical notes of his family doctor, the findings of his left wrist x-ray, a letter from Dr. Kim, a consultation report of Dr. Patgunarajah, and the Emergency Report of September 11, 2022.
31Based on section 31(1)(b) of the Schedule, an insurer is not required to pay an IRB if the insured person made a material misrepresentation that induced the insurer to enter into an insurance contract or intentionally failed to notify the insurer of a change in a risk material to the contract.
32As the respondent raised this issue, it bears the onus of showing that the applicant made a material misrepresentation. The respondent submits that the applicant is not entitled to the IRB as he failed to notify the respondent that he was living in Mississauga, not Hamilton as was listed on his policy, at the time of the accident.
33The respondent relied on the cross-examination of the applicant, the applicant’s EUO testimony, the testimony of Shelley Steeves, the respondent’s technical underwriter, the applicant’s bank records from one year pre-accident until September 2022, the respondent’s data changes, meaning address and other information related to the applicant’s car insurance, and the applicant’s Certificates of Insurance from 2019 to 2020 and 2020 to 2021.
34The applicant submits that he did not make a material misrepresentation and relies on his testimony, the testimony from his EUO, and his cell phone records.
35I find that the applicant did make a material misrepresentation in his insurance contract by failing to advise the respondent that he was living in Mississauga and not Hamilton at the time of his accident.
36I am mindful of the applicant’s communication challenges during the hearing due to his limited educational background, need for interpretation services and difficulties answering the questions directly during the hearing. However, I could not ignore the multiple inconsistencies raised by the respondent about the applicant’s evidence including the contradictions in his EUO versus hearing testimony, including the reason he allegedly moved to Hamilton, his monthly rent, and his physical injuries related to the accident.
37I also noted that the applicant’s testimony was of limited value in supporting his position, as he had great difficulty remembering much of the information put to him. For example, the applicant often evaded questions and instructed both legal representatives to simply “refer to his notes”. Had the applicant wished to rely on evidence he could not speak to, he may have been better served calling the authors of this evidence to the hearing or proceeding via written hearing.
38Instead, I found the totality of the respondent’s evidence showed that the applicant provided an address in Hamilton on May 17, 2019, as supported in his Data Changes files, and this did not change until May 17, 2021, when he reported moving to Mississauga.
39The fact that the applicant testified that before the accident he lived in Hamilton, meaning from approximately 2018 until he changed his address to his Mississauga address in 2021, was not cohesive with his position and the rest of his evidence. The applicant testified that he moved to Hamilton for personal reasons discussed during the hearing, however, he was not able to testify as to when he moved to Hamilton, what his Hamilton address was, how much rent he paid while living in Hamilton, provide any evidence of paying rent in Hamilton, nor link any of his spending to Hamilton.
40Though the applicant testified that he lived in Hamilton while his family lived in Mississauga, I would have expected the applicant to be able to produce some kind of evidence showing a link to the city of Hamilton, given that his insurance policy indicates that he was living there since 2019. I could not reconcile the fact that the applicant stated that he was living in Hamilton but had no evidence to support this connection. I would have expected at the very least for the applicant to have proof of a single purchase, appointment or meeting in Hamilton, which he did not provide.
41Instead, I was persuaded by the respondent’s evidence and position. The respondent was able to connect the applicant’s purchases and day-to-day life with evidence. Examples include the applicant’s bank records showing that his purchases before and after the accident were made in Mississauga, the applicant provided no mail from his Hamilton address, nor any evidence of him ever living there apart from his testimony.
42I also found the evidence of Ms. Steeves that the applicant paid a lower auto insurance rate by stating he lived in Hamilton persuasive, as it explained the reason for the applicant’s actions. I found that Ms. Steeves testimony was also supported by the applicant’s Certificates of Automobile Insurance from 2019 to 2020 and 2020 to 2021 which were addressed to the Hamilton address.
43Therefore, I find that the applicant made a material misrepresentation and, pursuant to section 31(1)(b) of the Schedule, is not entitled to an IRB.
Interest
44Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. Since I have found that no benefits are outstanding, no interest is payable.
Award
45The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
46As no benefits were found to be outstanding, no award is payable.
ORDER
47The applicant’s injuries are found to be within the MIG. Since the applicant has exhausted the limits of the MIG, no benefits are payable.
48The applicant is not entitled to an IRB, as I find that he made a material misrepresentation.
49The applicant is not entitled to interest or an award.
Released: June 20, 2023
Stephanie Kepman Adjudicator