El-Achkar v. Unifund, 2023 CanLII 96319

Licence Appeal Tribunal

Citation: El-Achkar v. Unifund, 2023 ONLAT 21-005581/AABS

Licence Appeal Tribunal File Number: 21-005581/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:

Abbas El-Achkar

Applicant

and

Unifund

Respondent

DECISION

ADJUDICATOR:

Julia Fogarty

APPEARANCES:

For the Applicant:

Abbas El-Achkar, Applicant

For the Respondent:

Mary Cuomo, ADR Representative

Ken Yip, Counsel

Court Reporter:

S. Hanson

Interpreter (French):

Michael Lashley

HEARD: by Videoconference:

July 31, 2023

OVERVIEW

1Abbas El-Achkar, the applicant, was involved in an automobile accident on December 10, 2017, 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, Unifund, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

Documents

2At the outset of the hearing the respondent raised that the applicant had not provided a document brief prior to the hearing.

3When questioned the applicant stated that he had provided a brief through his sister’s email to both the respondent and the Tribunal in April of 2023. I offered the applicant some time to produce this brief and email. The applicant then advised he could not access it since it was sent through his sister’s email and not his own and he would not interrupt her workday to have her forward the email.

4Since the parties advised they each had no witnesses, I offered to have him provide the email and brief after hours this evening, with the hearing to commence the next day. The applicant then admitted to misleading the Tribunal since the brief and email did not exist.

5Despite this, it was offered to the applicant that he may gather documents and provide them to the Tribunal with the hearing pushed to start on the second scheduled day. The parties would then address the materials and assess if they could be admitted at this late juncture. The applicant declined this opportunity and instead suggested that he would prefer to rely on the respondent’s document brief which he expressed contained all the necessary documents to advance his case.

6The applicant did not draw me to any specific documents in the brief and only relied on the respondent’s brief as a whole.

ISSUES

7The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from December 12, 2018 to date and ongoing?

ii. Is the applicant entitled to $2,200.00, not incurred, for physiotherapy and chiropractic services proposed by Novo Healthnet Ltd. in a treatment plan/OCF-23 submitted April 2, 2020 and denied April 8, 2020?

iii. 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?

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

RESULT

8The applicant has not met the burden of proof to establish any entitlement to income replacement benefits, physiotherapy and chiropractic treatments, an award under s.10 of O. Reg. 664, or interest.

9The applicant’s application is dismissed.

ANALYSIS

Income Replacement Benefit

10The applicant is seeking a determination that he is entitled to an income replacement benefit in the amount of $400.00 per week from December 12, 2018 and ongoing. I find that the applicant has not met the burden of proof to establish entitlement to income replacement benefits.

11Due to the length of the income replacement benefits being requested by the applicant there are two periods to review, the first 104 weeks following the accident and then the time after that initial 104 weeks. The legal test for both periods is as follows:

i. For income replacement benefits up to December 8, 2019: To 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.

ii. For income replacement benefits after December 8, 2019: To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

12The applicant had just returned to work prior to the accident. At the time of the accident the applicant was working at Livingston International doing office work. He had been working there for a few weeks. Prior to that he worked for DHL in an office logistics role for 2 years and then Manulife Financial for another 2 years.

13On July 18, 2018 he was denied disability and he admitted during the hearing that he worked two days that year for mold construction where he is still listed as an employee but he refused to answer further questions from the respondent about that employment. It is unclear if the applicant is or is not currently working or receiving an income or during which periods he was working due to the applicant’s refusals to clarify.

14The applicant stated during the hearing that he has been unable to work since the accident and relies on the respondent’s document brief to establish his claim. A review of the evidence contained in the respondent’s documentary brief did not corroborate the applicant’s position.

15Dr. Keith Sequeira, physiatrist, found in his April 10, 2019 report that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment. He described that the applicant’s pre-accident employment concerned office work and was not physically demanding. In the opinion of Dr. Sequeira, the applicant is noted to not be precluded from participation in paced, light intensity physical activity and work.

16The applicant was also assessed by Dr. Curt West, a clinical neuropsychologist, in a report dated April 10, 2019 where he found that the applicant’s self-assessment of his own limitations was indicative of malingering. Dr. West states in his report that “this level of disability is not consistent with objective medical findings, this patient may be drawn toward assuming a disabled role”. He further states that “there is no medical explanation for this broad pattern of somatic complaints” and that the applicant may be “trying to impress upon others the seriousness of their circumstances, and they likely wish that someone would help them”.

17Dr. West further notes that when tested for malingering “his responses resulted in a score that exceeded the maximum acceptable cut-off score for suspected malingering by a narrow margin” and that “he endorsed some symptoms and impairment that is highly atypical of individuals who have genuine psychiatric or cognitive disorders”. He further clarifies that “this suggests the possibility of some degree of potential symptom exaggeration.” Dr. West did not feel that the applicant would meet the criteria for any specific DSM-IV or DSM-5 diagnoses. When Dr. West was asked to identify if the applicant was able to work from a psychological perspective in his report his opinion was that “he does not suffer from a substantial inability to engage in his pre-MVA employment duties”.

18As such, from neither a physical or mental health perspective did either medical practitioner identify in their reports that the applicant could not return to work. Further, the applicant has not established that he is not and was not employed during the time period for which the benefits are being sought. I find that the applicant has not met the burden to establish entitlement to income replacement benefits.

Physiotherapy and Chiropractic Treatment

19The applicant is seeking payment in the amount of $2,200.00 for physiotherapy and chiropractic services proposed by Novo Healthnet Ltd., submitted April 2, 2020 and denied April 8, 2020. I find that the applicant has not met the burden of proof to establish entitlement to payment of this treatment plan.

20The applicant provided that the goal of this treatment was the reduction of pain.

21In the April 8, 2020 letter from Cory Nigh to the applicant the insurer indicates that this treatment plan was denied since Unifund already approved the same treatment from another provider.

22Under section 40(6) of the Schedule the insurer is not liable to pay for services that have already been provided. As this treatment plan is a duplicate of another treatment plan the applicant has not met the burden to show why this duplicate treatment plan is reasonable or necessary to address his medical issues.

Award under s.10 of O. Reg. 664

23I find that the applicant has not met the burden to establish entitlement to an award under s.10 of O. Reg. 664.

24The Tribunal may grant, under s.10, an award up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Pursuant to paragraph 35 of S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT) the applicant must prove that the respondent’s conduct rose to the level of being: “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

25Further, the respondent’s conduct needs to align a pattern of conduct described in Plowright v. Wellington Insurance Co., 1993 OIC File No.: A-003985 (FSCO); to rise to the level of a s.10 award the respondent’s conduct must be an egregious and patently obvious error in adjusting.

26The applicant’s position is that he is entitled to a s.10 award because Unifund received an email and erroneously discontinued his benefits due to a mix-up with his brother. The applicant’s brother, who used the applicant’s prior counsel, advised Unifund through that lawyer that his brother had returned to work.

27As a result, during the confusion, Unifund mistakenly discontinued benefits to the applicant instead of his brother in “February for a month” and then withheld again from “February to May 28th”. Later, once it was discovered that an error had taken place, Unifund remitted backpay.

28Unifund has also proceeded to refuse to provide post-104 income replacement benefits despite what the applicant feels are sufficient medical records and supports to justify payment.

29The applicant also alleged that the respondent refused to answer him and obfuscated the process by repeatedly changing the adjuster assigned to his claim. No documentary evidence was provided to corroborate these statements and they were denied by the respondent.

30The respondent highlights that the reports of Dr. Sequeira and Dr. West, do not support the position that the applicant needs income replacement benefits. That the respondent acted on the information they were provided to properly adjust the claim.

31As the applicant is not entitled to income replacement benefits, the conduct of the respondent in denying the benefits does not rise to the level that the conduct is “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” in its denial to make those payments. With regards to the error in payment stoppage outlined by the applicant there is not enough information provided to meet the legal burden of establishing any s.10 award entitlement.

Interest

32As no benefits are payable, there is no interest.

ORDER

33The applicant has not met the burden of proof to establish any entitlement to income replacement benefits, physiotherapy and chiropractic treatments, an award under s.10 of O. Reg. 664, or interest.

34The applicant’s application is dismissed.