Solomon v. Intact Insurance Company, 2024 CanLII 10553

Licence Appeal Tribunal

Citation: Solomon v. Intact Insurance Company, 2024 ONLAT 22-003558/AABS

Licence Appeal Tribunal File Number: 22-003558/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:

Michael Solomon

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Fayola Benjamin, Counsel

For the Respondent: Christine McKenna, Counsel

HEARD: By way of written submissions

OVERVIEW

1Michael Solomon, the applicant, was involved in an automobile accident on December 20, 2019, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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? Note: The parties agree the MIG limits have been exhausted.

2. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from June 7, 2021, to August 1, 2022?

3. Is the applicant entitled to medical benefits recommended by Revive Health Center in the following treatment plans (“OCF-18s) for physiotherapy:

   a) $1,289.02 dated May 7, 2020;

   b) $1,289.02 dated July 23, 2020;

   c) $1,085.32 dated November 4, 2020;

   d) $1,085.32 dated January 20, 2021; and

   e) $1,423.76 dated March 4, 2021?

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

RESULT

3The applicant has not established that his impairments arising from the accident fall outside the MIG. Since the MIG limits have been exhausted, he is not entitled to any of the OCF-18s in dispute. Further, he has not proven entitlement to an IRB for the time period claimed and is not entitled to interest.

ANALYSIS

The applicant’s impairments fit within the MIG

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”

5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG.

6The applicant submits that he should be removed from the MIG because he suffers from chronic neck, shoulder, and back pain as a result of the accident which has resulted in his inability to work in his pre-accident occupation as an Uber driver. In support of his position, he relies on the clinical notes and records (“CNRs”) of Dr. Klein, his family doctor, OCF-3 completed by Dr. Sugar, chiropractor dated December 21, 2019, the CNRs of treating clinic Revive Health Center and a consultation note of Dr. Glazman, chronic pain specialist dated January 16, 2023.

7The respondent argues that the applicant’s accident-related impairments fall within the MIG. It relies on the insurer examination (“IE”) reports of Dr. Talebizadeh, psychologist and Dr. Sandhu, occupational medicine specialist both dated July 24, 2020. Dr. Sandhu diagnosed the applicant with soft tissue injuries as a result of the accident which fall within the MIG. Dr. Talebizadeh determined that the applicant did not have any diagnosable psychological impairment. It also maintains that the diagnostic imaging of the applicant’s shoulder and lumbar spine confirms that he suffers from mild degenerative changes which is not accident-related.

8I agree with the respondent for the following reasons.

Chronic Pain

9First, I find Dr. Klein’s CNRs support that the applicant’s accident-related impairments fit within the MIG. The CNRs note that the applicant visited his family doctor three times in 2020 where he complained of neck, left shoulder and back pain. In the applicant’s initial visit with Dr. Klein, the doctor diagnoses him with whiplash and neck strain which I find are impairments that fit within the MIG. On the third visit, the CNR notes that the applicant’s only complaint was left shoulder pain. Further, diagnostic imaging of the left shoulder confirm that the applicant suffers from subscapularis mild tendinopathy, supraspinatus mild tendinopathy and degenerative changes. I agree with the respondent that there is no evidence that this condition is accident-related.

10Second, the applicant also relies on the OCF-3 completed by Dr. Sugar dated December 21, 2019, which notes that the applicant sustained impairments which include: anxiety disorder, cervicothoracic, lumbosacral, neck, low back, pelvic, abdominal, lower leg, wrist pain, headaches, and hand pain. With the exception of anxiety disorder, I find the injuries listed on the OCF-3 consistent with the MIG. Further, I place little weight on Dr. Sugar’s diagnosis of anxiety disorder as it is outside the scope of a chiropractor to diagnose this condition. In addition, the applicant did not make any psychological complaints to his family doctor. I also find the CNRs of Revive Health Centre unhelpful because they were not legible and the various charts do not establish that the applicant suffers from chronic pain, a chronic pain condition or has any functional impairments as a result of the accident.

11Third, I place little weight on the consultation report of Dr. Glazman because it simply recommends treatment options for the applicant as opposed to discussing any accident-related impairment or functional limitations. This report also post-dates the accident by over three-years, and it is unclear whether Dr. Glazman reviewed any pre- or post-accident CNRs prior to his consultation.

12Finally, I prefer the opinion of Dr. Sandhu because he conducted a more thorough assessment which included a document review and physical examination. The applicant reported to Dr. Sandhu that he had a 60 to 70% improvement in symptoms and that he was independent with all self-care tasks, and housekeeping and home maintenance activities, with pacing and breaks. Dr. Sandhu’s physical examination was also unremarkable, and the applicant demonstrated full range of motion. The doctor opined that the applicant sustained soft-tissue injuries as a result of the accident which fit within the MIG.

13I find Dr. Sandhu’s physical examination aligned with the doctor’s opinion that the applicant sustained soft tissue injuries as a result of the accident. I also find Dr. Sandhu’s opinion consistent with the applicant’s self-reports about his post-accident function. Further, the doctor’s findings were consistent with the post-accident CNRs of the applicant’s family doctor which noted minor injuries. Finally, I find that the applicant has not submitted sufficient evidence to refute Dr. Sandhu’s opinion.

14For the above reasons, the applicant has not met his onus in proving on a balance of probabilities that he sustained an impairment as a result of the accident that would remove him from the MIG.

15Since I have determined that the applicant sustained a minor injury, he is not entitled to any of the disputed OCF-18s for physiotherapy because the MIG limit has been exhausted. Nor do I find that he has he proven that the OCF-18s are reasonable and necessary as a result of any accident-related impairment.

The applicant is not entitled to an IRB in the amount of $400.00 per week from June 18, 2021, to August 1, 2022.

16Section 5(1)1 of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. At the post-104 mark, the applicant must prove he has a complete inability to engage in any employment for which he is suited by education, training, or experience.

17In the five years prior to the accident the applicant worked as an Uber driver. Little time was spent by the applicant in his submissions outlining his education or vocational history or the essential tasks of his employment. The IE reports indicate that his highest level of education was Grade 12. Further, the essential tasks of an Uber driver include driving passengers to various destinations, which includes prolonged sitting and lifting passenger bags which requires medium strength. At the time of the accident, he worked 8 to 12 hours per day, six to seven days per week. Following the accident, he did not return to his pre-accident employment as an Uber driver. However, of significance the applicant did not own another vehicle post-accident.

18The applicant argues that between June 18, 2021, and August 1, 2022, he was unable to work because of chronic neck, left shoulder and back pain. He relies on the above-noted OCF-3 completed by Dr. Sugar which supported that he had a substantial inability to carry out the essential tasks of his employment as a result of his accident-related impairment. He also relies on the CNRs of Dr. Klein which note the applicant reported ongoing pain.

19The respondent paid the applicant an IRB in the amount of $400.00 per week until June 18, 2021, at which point it terminated the benefit relying on the multi-disciplinary IE reports of Danny Monck, kinesiologist, Dr. Desai, neurologist, Dr. Talebizadeh, Dr. Sandhu and a job site analysis dated June 2, 2021. All of these assessors concluded that the applicant did not have a substantial inability to perform the essential tasks of his employment as a result of any accident-related impairment. The respondent submits that the applicant has not met his onus in proving his entitlement to an IRB for the time period claimed as a result of any accident-related impairment. I agree for the following reasons.

20First, the applicant relies on the aforementioned OCF-3 which was completed one-day post-accident, which noted that the duration of disability was 9 to 12 weeks. I find the OCF-3 outdated and it does not speak to the applicant’s health status between June 2021 and August 2022, which is the time period the applicant is claiming an IRB.

21Second, I do not find Dr. Klein’s CNRs helpful in establishing that the applicant has any ongoing impairment that prevented him from working because they are sporadic, and there are large gaps in time in the records which do not speak to any accident-related impairment or functional limitations. Further, the diagnostic imaging that was done to investigate the applicant’s complaints note degenerative changes. In addition, Dr. Klein did not provide an opinion that the applicant was unable to work as a result of any accident-related impairment.

22Third, the applicant has not provided any evidence to establish that he would meet the stricter post-104-week test of “a complete inability to work at any occupation for which he is suited by education, training or experience.” Instead, the evidence supports that he has found alternative employment at Walmart and has also gone back to school. No information has been provided about the applicant’s educational pursuits or post-accident employment. The applicant has not met his burden of proof to substantiate his claim for an IRB.

23Finally, in contrast, the respondent relies on the above-noted multidisciplinary IE reports. The applicant reported to the assessors that he was independent with self-care, driving, cooking, and housekeeping and home maintenance tasks, with pacing and breaks. Dr. Sandhu’s physical examination was normal, and the doctor determined that the applicant did not have any impairments which would result in a substantial inability to carry out the essential tasks of employment. The other assessors came to the same conclusion. I accept the opinion of the IE assessors because the applicant has not presented any persuasive evidence to refute it.

24The applicant has not met his onus to prove on a balance of probabilities that he has a substantial inability to carry out his pre-accident employment tasks as a result of any accident-related impairment for the time period claimed. Nor has he submitted any evidence that he meets the post-104 test of entitlement to the benefit.

The applicant is not entitled to payment of interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no benefits are overdue, the applicant is not entitled to interest.

ORDER

26The applicant has not established that his impairments arising from the accident fall outside the MIG. Since the MIG limits have been exhausted, he is not entitled to any of the OCF-18s in dispute. Further, he has not proven entitlement to an IRB for the time period claimed and is not entitled to interest.