Licence Appeal Tribunal File Number: 21-002296/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:
Ameruallah Habib
Applicant
and
Chieftain Insurance
Respondent
DECISION
VICE-CHAIR:
Ian Maedel
APPEARANCES:
For the Applicant:
Camille Narine-Ramrattan, Paralegal
For the Respondent:
Dylan Crosby, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ameruallah Habib, the applicant, was involved in an automobile accident on December 11, 2016, 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 the respondent, Chieftain Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for 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 the already consumed the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $2,618,48 for physiotherapy services recommended by Midland Wellness in a treatment plan/OCF-18 dated January 5, 2020?
iii. Is the applicant entitled to $2,264.67 for physiotherapy services in the recommended by Midland Wellness in an OCF-18 dated February 25, 2020?
iv. Is the applicant entitled to an income replacement benefit (“IRB”) of $331.98 per week for the period from April 17, 2017 to December 18, 2018?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
4Having found that the applicant sustained a minor injury as a result of the accident, he is not entitled to the disputed OCF-18s because they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment.
5The applicant is not entitled to an IRB.
6Given there are no benefits owed, or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ANALYSIS
The Minor Injury Guideline (“MIG”)
7The 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.
8An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury which precludes their recovery if subject to the MIG.
9Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive funding for treatment beyond the $3,500.00 limit if they can provide evidence of an injury that is not included in the minor injury definition.
10It is the applicant’s burdento establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. (See: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).)
11The applicant submits he suffered from pre-existing impairments, a psychological impairment, and chronic pain which would prevent maximal recover if subject to the MIG limits. The respondent submits the applicant has failed to meet his evidentiary onus, as the evidence tendered does not support the position that he suffered any impairment that falls outside the scope of the MIG.
The applicant has not established he suffers from a pre-existing impairment that precludes his recovery in the MIG
12I am not persuaded the applicant has established on a balance of probabilities that he suffered from any pre-existing condition which would otherwise preclude his recovery following the accident if he is subject to the MIG and the $3,500.00 treatment funding limit.
13Pursuant to s. 18(2) of the Schedule, a pre-existing condition does not automatically exclude a person’s impairment from the MIG. Such a condition must have been documented by a health professional before the accident and shown to prevent maximal medical recovery within the cap imposed by the MIG.
14The Disability Certificate (“OCF-3”) completed by Dr. A. Deokiesingh, chiropractor, does not mention a pre-existing medical condition. The OCF-3 lists accident-related impairments that include sprain and strain of the thoracic, lumbar and sacroiliac join, whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs, headache, other symptoms involving cognitive function and awareness, depressive episode, flashbacks, and non-organic sleep disorders. The anticipated duration of these impairments was more than twelve weeks.
15The clinical notes and records provided by the applicant’s family physician, Dr. Khan, include little evidence of pre-existing back pain prior to the accident. The only potentially meaningful entry was on May 31, 2015 when the applicant reported neck pain and was diagnosed with cervical strain. Otherwise, there are no pre-accident reports of back pain. Even post-accident there are only three reports of back pain, and only in the immediate post-accident period between December 13, 2016 and January 23, 2017. Diagnostic imaging of the applicant’s cervical and lumbar spine completed immediately post-accident on December 13, 2016 and two-years later on November 1, 2018 indicate degenerative changes. Dr. Khan noted “subtle degenerative changes throughout the lumbar spine” and there was no causal link drawn to the subject accident. I am not persuaded that subtle degenerative changes throughout the lumbar spine precludes the applicant’s recovery from a minor injury.
16Similarly, the records of Midland Wellness do not pre-date the accident, nor do they demonstrate a continuing pattern of pain symptoms. The entirety of the records includes only four occasions were the applicant complained of back pain. The complaints were limited to the period from December 12, 2016 and February 22, 2017. The remaining records from Midland Wellness Centre focus on the applicant’s knee pain following his knee surgery in December 2019. Again, there were no references to the accident throughout these additional clinical records and the applicant reported that his knee injury was from a workplace accident, which will be addressed below.
17Otherwise, the reports of back pain in the applicant’s medical records are linked to a workplace incident on October 24, 2018, where the applicant fell at work. In the evidence tendered, there was never any link established between this fall and the subject accident. The applicant subsequently sought and received benefits from the Workplace Safety and Insurance Board (“WSIB”). In the WSIB documentation provided, there are multiple references to lumbar strain related to this fall, and not a solitary reference to the subject accident.
18The applicant has also failed to establish that his pre-existing right knee pain was exacerbated by the subject accident. Neither the Application for Accident Benefits (“OCF-1”), the OCF-3, nor the treatment plans filed indicated a right knee injury as a result of the accident.
19Dr. Khan’s records indicate the applicant reported knee pain prior to the accident on two occasions, May 29, 2014 and November 13, 2015. A right knee ultrasound conducted November 16, 2015 indicated no acute findings. Otherwise, post-accident, there is only one report of right knee pain related to the accident, on January 4, 2017. Consistent reports of right knee pain are not otherwise documented until more than a year later, in 2019. Dr. Khan made no link between the applicant’s right knee pain and the subject accident and there is no indication that the applicant’s right knee pain precluded his recovery from the predominantly minor injury sustained in the accident.
20Instead, on September 13, 2019, the applicant reported to Dr. J. Abouali, orthopaedic surgeon that he suffered a traumatic knee injury while at work. He was diagnosed with a tear of the lateral meniscus and a full-thickness ACL tear and underwent knee surgery on December 16, 2019. While the WSIB documents dated March 5, 2019, demonstrate that this injury was not work related, there is no evidence that demonstrates the applicant’s knee injury was as a result of the accident.
21Aside from the clinical notes and records provided, the applicant has not provided any expert report, opinion, or diagnosis that indicates his pre-existing back and right knee pain was exacerbated by the accident. Nor has the applicant demonstrated these alleged pre-existing injuries would prevent maximal medical recovery within the cap imposed by the MIG.
The applicant has not established he suffered accident-related psychological impairment
22If established, psychological impairments, fall outside the MIG, because such impairments are not included in the prescribed definition of a “minor injury.” The onus is on the Applicant to demonstrate that he sustained a psychological injury as a result of the accident and that the injury is more than sequelae of his soft tissue injuries. However, I am not persuaded the applicant has adduced sufficient evidence to establish he suffered an accident-related psychological impairment.
23The OCF-1 dated December 14, 2016 listed a number of psychological symptoms including irritability, sleep disturbance, paranoia, lethargy, depression, and anxiety. However, none of these symptoms are exhibited in the multiple years of clinical notes and records provided by Dr. Khan between the date of the accident and September 10, 2021.
24The only evidence tendered to support a potential psychological impairment was made by Dr. Khan on December 13, 2016, immediately post-accident. It was reported the applicant was crying and in moderate distress, as he was concerned about supporting his family financially. Dr. Khan never made any a referral or took any additional course of action following this appointment. Otherwise, there is no additional reference to any potential psychological symptomatology in the evidence provided. Given this lack of evidence, I find that the applicant has not established he suffered a psychological impairment as a result of the accident. As a result, I cannot conclude the applicant has established any accident-related psychological impairment that would fall outside of the MIG and the definition of a minor injury.
The applicant has not established he suffers accident-related chronic pain
25The applicant has not established she suffers chronic pain, or a chronicity of pain symptoms causing a functional impairment as result of the accident.
26I have been provided with little compelling evidence to indicate the applicant’s accident-related injuries have had a detrimental impact on his functionality. The applicant failed to make any reference to potential chronic pain symptoms tied to the index accident. The initial reports of back pain following the accident ended on January 23, 2017. Subsequent reports of back and knee pain were as a result of a workplace injury on October 24, 2018 or a twisted knee on January 7, 2019, neither related to the index accident.
27Otherwise, there is no expert report or diagnosis of chronic pain syndrome in the evidence tendered. In addition, the clinical notes fail to demonstrate that the applicant suffers a functional impairment due to ongoing accident-related pain. Although not required, the applicant makes no reference to the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”), nor the criteria for helping to determine if the applicant suffers from accident-related chronic pain.
28Critically, the clinical notes and records failed to establish the applicant met three of the six AMA Guides criteria to demonstrate that she suffers from chronic pain as a result of the index accident. The only potential criterion met, was a potential dependence on prescription drugs, as the applicant was prescribed medication like Meloxicam, Diclofenac, Baclofen and Naproxen. However, the records do not establish dependence on the drugs prescribed. Further, the records do not demonstrate excessive dependence upon health care providers or family, any secondary deconditioning due to disuse or fear-avoidance, no withdrawal from social milieu, failure to restore pre-injury function insufficient to pursue work, family, or recreational needs, nor any psychosocial sequelae stemming from the accident.
29Based on the evidence adduced I find the applicant has failed to demonstrate that his injuries fall beyond the minor injury definition. He is subject to the treatment limits of the MIG and the $3,500.00 funding limit for a minor injury.
The applicant is not entitled to the OCF-18s in dispute
30Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plans, as they propose goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.
Income Replacement Benefits (“IRB”)
31To qualify for an IRB under s. 5(1) of the Schedule, the applicant must be employed or self-employed 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 pre-104 test). 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.
The applicant has failed to establish he suffered a substantial inability to perform the essential tasks of his employment
32I am not persuaded the applicant has established he qualifies for an IRB benefit for the period from April 4, 2017 to December 18, 2018.
33The respondent calculated the weekly IRB benefit of $331.98 and paid this sum to the applicant from December 18, 2016 until April 2, 2017. Payment was stopped by the respondent when it was advised by his legal representative that he returned to full-time employment as a butcher at Iqbal Foods Corporation. Otherwise, the applicant has not provided any additional evidence that contradicts his reported return to work.
34Additionally, the applicant has failed to provide any evidence related to the essential tasks of his employment as a butcher. The only description of his employment was included in the Employer’s Confirmation Form (“OCF-2”) dated January 3, 2017, where it stated the essential tasks were “cutting meat”. This limited description is insufficient to determine if the applicant was unable to complete the essential tasks of his employment. Similarly, the applicant has not provided any expert report or opinion that indicates he was substantially unable to cut meat as a result of and within 104 weeks of the accident.
35Otherwise, the applicant has failed to meet his evidentiary burden in relation to his claim for IRB. The clinical notes and records do not establish a substantive inability to perform the essential tasks of his employment following his return to work in April 2017.
36Given the totality of the evidence, I am not persuaded the applicant has satisfied the requirements of s. 5(1), as he has not established, he suffered a complete inability to perform the essential tasks of his employment. As a result, the applicant is not entitled to an IRB for the period from April 17, 2017 to December 18, 2018.
The applicant is not entitled to interest
37Given there are no outstanding or overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
38The application is dismissed, and I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. Having found that the applicant sustained a minor injury as a result of the accident, he is not entitled to the disputed OCF-18s because they propose goods that fall beyond the MIG and the $3,500.00 funding limit on treatment;
iii. The applicant is not entitled to an IRB from April 17, 2017 to December 18, 2018.
iv. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Released: July 14, 2023
Ian Maedel