Citation: Osman v. Intact Insurance Company, 2024 ONLAT 22-012150/AABS

Licence Appeal Tribunal File Number: 22-012150/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:

Ahmad Osman

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Frank Mercurio, Paralegal

For the Respondent:

Karman Dhuga, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ahmed Osman, the applicant, was involved in an automobile accident on March 2, 2020, 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, Intact Insurance Company, 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 treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to an income replacement benefit in the amount of $316.73 per week from January 27, 2021, to March 2, 2022?

iii. Is the applicant entitled to $2,929.36 for chiropractic services, proposed by Islington North Chiropractic in a treatment plan dated January 27, 2021?

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

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

3The applicant has withdrawn his claim for post-104-week income replacement benefits. I have accordingly revised the issue described at (ii) above to reflect this change.

RESULT

4The applicant has not proven that his injuries are not predominantly minor such that he should be removed from the MIG. He is not entitled to an income replacement benefit. He is not entitled to the treatment plan for chiropractic services. He is not entitled to interest or an award. This application is dismissed.

PRELIMINARY ISSUE

5The parties attended a case conference on June 26, 2023. A videoconference hearing was scheduled for November 27, 28, and 29, 2023. On November 9, 2023, the applicant brought a motion on consent to convert the hearing to a written hearing. The motion was granted, and a written hearing was scheduled for January 26, 2024.

6The applicant’s submissions were due on December 26, 2023. He served his submissions on January 25, 2024, after all submission deadlines had already passed. On January 29, 2024, the applicant brought a motion to extend the submission deadlines, but his motion was denied. The respondent served its submissions on February 16, 2024.

7The respondent submits that the applicant failed to comply with the written submission deadline, and that the application should be dismissed.

8The applicant submits that he inadvertently filed his submissions late due to an assumption that they were due on the date of the written hearing. He argues that the respondent has not been prejudiced in any way, but if this hearing would be dismissed, that would be prejudicial to the applicant.

9I find that dismissing this application without determining its merits would be highly prejudicial to the applicant, and I am not satisfied that his conduct warrants such an outcome.

10Further, the respondent has not provided any evidence of prejudice it would suffer if I were to accept the applicant’s submissions as filed. Despite the applicant’s late service, there is no evidence that the respondent was unable to respond to the applicant’s submissions fully.

11I accordingly accept the parties’ submissions as filed.

ANALYSIS

Application of the Minor Injury Guideline

12Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. 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.” It is recognized that psychological injuries, concussions, and chronic pain with functional impairment fall outside of the definition of minor injury. In all cases, the burden of proof lies with the applicant.

13An insured 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 or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

14The applicant did not make any submissions with respect to this issue. The only supportive evidence provided by the applicant was an OCF-3 from March 18, 2020, submitted by chiropractor Dr. Agyemang, and the clinical notes and records of his family physician, Dr. Chaudhary.

15The injuries listed in the OCF-3 were mostly indicated as “injury to muscle and tendons” to the applicant’s neck, thoracic spine, shoulder, upper arm, abdomen, lower back, pelvis, hip, and thigh. A knee sprain/strain was also noted. The only potential non-MIG injury listed in the OCF-3 was a dislocation to the applicant’s thoracic spine. However, there is no other evidence of this condition. The only imaging before me of the applicant’s spine was an x-ray from August 10, 2020. It found a mild reversal of the normal cervical lordosis, suggesting a muscle spasm. I find that Dr. Agyemang’s diagnosis of a dislocation is not supported elsewhere in the medical records before me.

16Dr. Chaudhary’s records mentioned neck pain, back pain, and shoulder pain. He diagnosed the applicant with, at various times, muscle spasm, mechanical-type back pain, and sciatica. However, a diagnosis of sciatica was only mentioned on September 28 and October 22, 2021. During subsequent visits, Dr. Chaudhary’s diagnosis was “back pain”. There is no evidence of any referral to a neurologist or imaging that would confirm the diagnosis of sciatica.

17The applicant attended an assessment with Dr. Seung-Jun Lee, general practitioner, on October 30, 2020. Dr. Lee diagnosed the applicant with whiplash associated disorder II and lumbar myofascial sprain/strain. Dr. Lee did not diagnose the applicant with sciatica, or any other condition that would remove him from the MIG. I note that while the applicant takes issue with Dr. Lee’s conclusions with respect to the income replacement benefit, he does not make any submissions regarding Dr. Lee’s application of the MIG, or provide compelling medical evidence to contradict his diagnoses.

18The applicant also attended an assessment with Dr. Sabrina Ming-Wai Tu, general practitioner, on August 1, 2023. The applicant reported that he denied any sharp pain radiating into his legs, or any tingling, numbness, or weakness in his legs. Dr. Tu diagnosed the applicant with a lumbar strain and uncomplicated soft tissue injuries, and it was her opinion that he sustained minor injuries from a musculoskeletal perspective. The applicant did not make any submissions regarding Dr. Tu’s diagnoses or opinion pertaining to the MIG.

19For those reasons, I find that on a balance of probabilities, the applicant has not proven that he is suffering from sciatica or any other condition that would necessitate his removal from the MIG.

Income Replacement Benefit

20I find that the applicant has not proven that he is entitled to the income replacement benefit in dispute.

21To 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.

22Prior to the accident, the applicant submits that he was an Uber driver, working approximately 60 hours per week. After the accident, he received income replacement benefits from one-week post-accident until January 26, 2021, when the benefit was terminated due to the results of s. 44 assessments.

23In terms of the evidence relied on by the applicant, the OCF-3 is not particularly helpful because it provided a picture of his medical condition well before the benefit was terminated. Further, although the applicant reported back pain to Dr. Chaudhary on a fairly regular basis until January 2022, Dr. Chaudhary’s notes do not speak to the applicant’s function abilities or ability to work. I find that there is insufficient evidence within these documents to support the applicant’s claim for an income replacement benefit.

24In his report, Dr. Lee stated that he did not identify an accident-related musculoskeletal impairment that would prevent the applicant from performing the essential and non-essential tasks of his pre-accident employment of self-employment.

25The applicant takes issue with Dr. Lee’s opinion. He submits that he was not able to resume his pre-accident employment as an Uber driver, as he was not able to safely check his blind spots due to limitations in his cervical spine that he demonstrated to Dr. Lee. He argues that this is a clear indication that he was not able to resume his pre-accident employment. However, the applicant returned to working as an Uber driver in July 2020. Although he reported that he was working fewer hours than prior to the accident, I find that this is compelling evidence that he was in fact able to check his blind spots. I therefore do not agree with the applicant’s submissions in that regard.

26The applicant underwent a s. 44 functional ability evaluation with Michael Dydula, kinesiologist, on January 6, 2021. Mr. Dydula indicated that the applicant demonstrated an inconsistent effort during validity testing. Taking into account his limited participation in testing, slow guarded movements, lack of body mechanics/effort/competitive tendencies informally observed, and inconsistencies between formal testing and informal observation, he opined that the test results were not a valid indication of the applicant’s functional abilities.

27The applicant submits that Mr. Dydula failed to consider other factors explaining inconsistent efforts, including the fear of re-injury or the fear of causing pain, which were reasonable under the circumstances, and instead opined that he intentionally provided an inconsistent effort. The applicant has not provided me with any evidence for this assertion.

28Issues with respect to these inconsistencies were also observed by Dr. Tu during her assessment. She stated that the applicant described subjective functional limitations much greater than her informal observation of them, and had increased range of motion, fluidity, and strength on informal observation compared to formal testing. Although I accept the applicant’s submission that Dr. Tu’s report did not address his entitlement to an income replacement benefit, I find that the information she provided corroborates the lack of effort provided by the applicant during his assessment with Mr. Dydula.

29The applicant argues that the respondent should not have terminated the benefit as Mr. Dydula stated that he did not demonstrate an ability to meet the job demands of his pre-accident employment. He argues that the benefit should not have been stopped until a valid test result was obtained, and the respondent should not have relied on the opinion of its assessor that an inconsistent effort was obtained.

30I do not accept this argument. The respondent is not required to fund a second assessment because of the applicant’s inconsistent effort during the first assessment. In addition, given the inconsistencies noted during Dr. Tu’s assessment, I see no reason why a second assessment would yield different results with respect to validity. I also see no reason why the respondent should not have relied on the opinion of its assessor in this regard.

31Aside from the applicant’s self-reports to the s. 44 assessors, he has not provided me with evidence of the amount of hours he worked before or after the accident, or the amount that he earned. I have only been provided with income tax returns from 2020 to 2022, which do not show these details. Not only has he failed to provide compelling evidence of a reduction in his work hours as a result of the accident, I am also unable to determine the amount that the applicant would be owed even if he was successful in proving entitlement to the benefit.

32For all of the above reasons, I find that on a balance of probabilities, the applicant has not proven that he is entitled to an income replacement benefit.

33The applicant submits that the treatment plan in dispute is payable because the respondent failed to comply with s. 38(8) and 38(10) of the Schedule, and failed to address the treatment plan in a timely fashion. He argues that the treatment plan is thus deemed approved and payable.

34Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. Section 38(10) states that a notice under s. 38(8) may notify an insured person that it requires them to undergo an examination under s. 44. If an insurer fails to provide the requisite denial, under s. 38(11)2, it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11^th business day after the treatment plan was submitted until the proper denial is given.

35The “medical and all other reasons” provided should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. The reasons provided should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

36The respondent’s denial letter of February 10, 2021, states that following review of the treatment plan, there is insufficient documentation that would support the applicant’s removal from the MIG. It then requested further documentation. I find that this letter was not compliant with s. 38(8), as it did not identify any information regarding the applicant’s medical condition. Further, the request for documentation did not provide any specificity regarding what information it required about the applicant’s condition that it did not have but required.

37However, the applicant subsequently attended the assessment with Dr. Tu, which dealt with his entitlement to this treatment plan. By way of letter dated August 21, 2023, the respondent denied the benefit again. The letter referred to the report of Dr. Tu, her opinion regarding the MIG, and her opinion that he sustained uncomplicated soft tissue injuries. I find that this letter was compliant with the requirements of s. 38(8) as it provided the medical and all other reasons for the denial, and was clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the denial.

38In Aviva General Insurance Company v. Catic, 2022 ONSC 6000, the Divisional Court stated that s. 38(11)2 compels an insurer who fails to provide the statutory notice called for in s. 38(8) to pay for all of the items listed in the subject treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. Although the parties did not refer to this decision, I am bound by it.

39Despite the lengthy amount of time that the respondent was in breach of s. 38(8), it cured its defective notice on August 21, 2023. There is no evidence before me that this treatment plan was incurred prior to August 21, 2023. I accordingly find that it is not payable by operation of s. 38(11).

Interest

40As no benefits are payable, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

41Under s. 10 of Reg. 664, the Tribunal may grant an award up to 50 per cent of the amount which the applicant would be entitled to if the Tribunal finds that the respondent has unreasonably withheld or delayed payments based on its conduct. As no benefits are payable, the applicant is not entitled to an award.

Order

42The applicant has failed to prove that his injuries are not predominantly minor such that he should be removed from the MIG. He is not entitled to an income replacement benefit. He is not entitled to the treatment plan for chiropractic services. He is not entitled to interest or an award. This application is dismissed.