Licence Appeal Tribunal File Number: 22-001064/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:
Shaukat Hayat
Applicant
and
Intact Insurance
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Arvin Gupta, Counsel
For the Respondent:
Gurpreet Farmaha, Counsel
HEARD:
By written submissions
OVERVIEW
1Shaukat Hayat, the applicant, was involved in an automobile accident on January 13, 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, 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 (“IRB”) in the amount of $228.30 per week for the period from January 20, 2020 to-date and ongoing, less any amounts paid by the respondent?
iii. Is the applicant entitled to a medical benefit in the amount of $5,681.00 for a chiropractic treatment plan dated January 29, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor and treatable within the MIG.
4The applicant is not entitled to chiropractic treatment, nor an IRB of $228.30 per week for the period from January 20, 2020 to-date and ongoing, nor interest.
ANALYSIS
Minor injury guideline (MIG) and treatment plan
5I find that the applicant’s injuries are predominantly minor and treatable within the MIG.
6Section 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.”
7An 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.
8According to the applicant, he sustained a radiculopathy type injury in the accident. This is confirmed by a radicular pain finding by Dr. Frederick Levenston, chiropractor, and an MRI dated March 22, 2023. The applicant submits that this evidence should be preferred over the insurer’s examination (IE) report and that he should be taken out of the MIG.
9The respondent submits that the evidence cited by the applicant is not persuasive. More weight should be given to the IE report which concluded that the applicant’s injuries are treatable within the MIG.
10An IE by Dr. Michael Hanna, general practitioner, was conducted on March 21, 2022. The applicant advised Dr. Hanna that he works as an Uber driver and that he returned to work three months after the accident. The applicant reported ongoing neck and low back pain and that he takes one 250mg tablet of Naproxen twice per day. Dr. Hanna physically examined the applicant. No concerns are noted in the neurological examination.
11The range of motion in the cervical spine was normal with pain reported at the endpoint range of motion. The thoracic and lumbosacral spine revealed normal range of motion in sitting and standing positions. Active range of motion was restricted, but Dr. Hanna attributes this to self-limiting and pain magnification behaviours. His conclusion is based on the applicant exhibiting full rage of motion during casual observation. The report also finds there was tenderness on palpation over the trapezius musculature bilaterally. Range of motion in the applicant’s shoulders was normal.
12Dr. Hanna diagnoses the applicant with sprain and strain injuries in the left shoulder and the cervical, thoracic, and lumbar regions. Dr. Hanna further opines that there was no evidence of radiculopathy, myelopathy or neuropathy and that the applicant sustained a minor injury treatable within the MIG.
13The applicant relies on the “radicular irritation” noted by Dr. Levenston. The applicant does not cite any particular document where this notation is found.
14I note that the treatment plan in dispute was completed by Dr. Levenston and the plan states that “radicular irritation” is a barrier to recovery. No further information is provided.
15The applicant also relies on an MRI dated March 22, 2023 which documents “Postsurgical changes of the lower lumbar spine. There are areas of enhancement adjacent to the right L4 and L5 nerve roots suggestive of scarring with no disc herniation identified.” The MRI goes on to say that “L2-3 small far right lateral disc protrusion is noted.” As noted by the respondent, the MRI does not mention the accident.
16In my view, the “radicular irritation” noted by Dr. Levenston, and the nerve root issue in the lumbar spine and the small disc bulge identified by the MRI, do not show a causal link to the accident. Dr. Levenston provides very little information and offers no insight on causation. The MRI attributes the nerve root issue in the lumbar spine to “postsurgical changes” and not the accident. For these reasons, I give little weight to this evidence.
17I prefer the IE report because Dr. Hanna physically examined the applicant and completed a number of tests including neurological and range of motion testing. His report fully explains why he concluded that the applicant has sprain and strain injuries which are treatable within the MIG. For these reasons, I find that the IE is persuasive. I rely on it to find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
18As I have found the applicant’s injuries fall within the MIG, it is unnecessary to determine whether the claimed treatment plan is reasonable and necessary. The applicant is not entitled to treatment beyond the $3,500 MIG limit.
IRB Quantum
19The applicant is not entitled to an income replacement benefit in the amount of $228.30 per week for the period from January 20, 2020 to-date and ongoing.
20To 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.
21The respondent paid an IRB to the applicant from January 20 to March 2, 2020 in the amount of $134.97 per week. This was reduced to $25.99 per week from March 3-September 1, 2020 because the applicant began working reduced hours. The applicant did not receive an IRB after September 1, 2020 because the respondent found that he had voluntarily returned to his employment.
22The applicant submits that he should be paid an IRB from January 20, 2020 to-date and ongoing but makes no submissions on why he is entitled to an IRB after he returned to work. I find that the applicant is not entitled to an IRB after September 1, 2020 as he has provided no basis to explain why he should receive this statutory benefit to date and ongoing.
23The method for calculating the weekly IRB payment is found in section 7 of the Schedule. According to the applicant, his employment income for 2019 is $16,716. The IRB should be calculated as 70% of $16,716.00 and divided by 52. The Applicant submits that his weekly IRB payment should be $225.02.
24The respondent’s method of calculating the IRB from January 20, 2020 to March 2, 2020 is in correspondence dated August 28, 2020 from Fallon Reid, chartered professional accountant. Mr. Reid’s chart titled “Calculation of Pre- and Post-Accident Self Employment Income/(Loss)” shows the applicant’s 2019 net income after expenses, ride sharing fees and commission, as being $8,163.58. Divided by 52, the applicant’s weekly income is calculated as $156.99. Seventy percent of this figure is $109.89. Mr. Reid also calculates a weekly income loss at $25.08. He adds these two figures and the result is a weekly IRB of 134.97 that was paid until March 2, 2020 when the applicant returned to work part-time.
25I note that the applicant’s 2019 Statement of Business or Professional Activities reports his income, after expenses, as $8,163.58.
26The applicant’s 2019 Notice of Assessment (NOA) reports his net income as $16,716.00 and his taxable income as $7,920. No explanation is provided in the NOA to account for the $8,796.00 deductions from his net income.
27It is the applicant’s burden to establish his entitlement to the quantum of the IRB he is seeking. The 2019 Statement of Business or Professional Activities clearly shows that he has expenses arising from his business or professional activities. This document also shows that his actual income, after these expenses, is $8,163.58. As such, I find that the quantum of the IRB cannot be calculated according to the net income $16,716 because this figure does not represent his actual income.
28The applicant returned to part-time work on March 3, 2020. His IRB was subsequently reduced by the respondent based on his reported earnings.
29The applicant’s 2020 Tax Return Summary shows his taxable income as $26,285.55. He made no submissions on IRB quantum for the period after he returned to work, nor has he explained why he would be entitled to an IRB if he is able to perform the essential tasks of his work. As such, the applicant has not persuaded me that he is entitled to any IRB after returning to work in March, 2020.
Interest
30As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
31The applicant’s injuries are predominantly minor and treatable within the MIG.
32He is not entitled to chiropractic treatment, an IRB of $228.30 per week for the period from January 20, 2020 to-date and ongoing, nor interest.
Released: February 14, 2024
Harry Adamidis
Adjudicator