Licence Appeal Tribunal File Number: 23-007227/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:
Yusuf Panchbhaya
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Dagmara Szczudlo
APPEARANCES:
For the Applicant:
Syed M. Raza, Counsel
For the Respondent:
John P. Desjardins, Counsel
Court Reporter:
Christian Ralladi, Victory Verbatim
Heard by Videoconference:
July 30, July 31, and August 1, 2024
OVERVIEW
1Yusuf Panchbhaya, the applicant, was involved in an automobile accident on December 2, 2022, 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 Assurance 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. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from December 10, 2022 to date and ongoing?
ii. 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? Note: The parties agree that the full MIG limits have been approved by the respondent.
iii. Is the applicant entitled to $399.50 for physiotherapy services, proposed by Airport Wellness Centre in a treatment plan/OCF-18 (“plan”) dated April 19, 2023?
iv. Is the applicant entitled to $2,550.00 for an orthopedic assessment proposed by Alliance Diagnostics and Treatment Inc. in a treatment plan dated March 11, 2024?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3At the hearing, the parties agreed that although the full MIG limits have been approved by the respondent, $1,600.00 was not invoiced/paid to July 31, 2024. The treatment plan for physiotherapy services in issue (iii) had been partially approved for $1,296.75 and the original amount of $399.50 listed in the Case Conference Report and Order released February 3, 2024 (“CCRO”) reflects the amount remaining in dispute. Issue (iv) was added by Motion Order dated June 27, 2024. This is reflected in the issues above.
RESULT
4The applicant is not entitled to IRBs.
5The applicant sustained minor injuries in the accident as defined under the Schedule. He remains within the MIG and is entitled to treatment up to the limits of the $3,500.00 MIG.
6The respondent is not liable to pay an award.
7Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
PROCEDURAL ISSUES
Motion to exclude parts of the respondent’s hearing brief and limit questions regarding content
8At the outset of the hearing, I declined the applicant’s motion to exclude tabs 28 to 45 of the respondent’s document brief.
9The applicant brought an oral motion to exclude tabs 28 to tab 45 of the respondent’s brief, to have the respondent re-submit their brief, and to be prevented from asking any questions related to content of these tabs during the hearing. The applicant submitted that the information in these documents is not relevant to the issues in dispute and is intended to attack the applicant’s character and create a bias in the mind of the adjudicator.
10The respondent submitted that the tabs should remain in the brief since they may be referred to during the hearing and decisions regarding this information should be made on a case-by-case basis as they arise.
11I denied the applicant’s motion. Pursuant to s. 15 (1) of the Statutory Powers of Procedure Act, a tribunal may admit into evidence any relevant document or thing.
12I find that tabs 28 to 45 of the respondent’s document brief was submitted in accordance with the CCRO and are relevant to the issues in dispute. I denied the applicant’s request on this basis. I also determined that any objections would be dealt with if and when they arose during the hearing. I note that the respondent did not refer to, nor rely on these tabs during the hearing.
Motion to exclude reports from Dr. Krishna and Dr. Bains from evidence
13I also declined an oral motion by the applicant to exclude the reports of Dr. Dinesh Ram Krishna, emergency physician, dated June 1, 2023 and Dr. Rajdeep Bains, family medicine and comprehensive clinical examination specialist, dated May 28, 2024.
14The applicant requested that these reports be excluded on the basis that an acknowledgement of expert duties form was not provided in advance of the hearing as required by Rule 10. Furthermore, the applicant submitted that clinical notes and records (“CNRs”) from these two doctors, as well as their draft reports were not provided as per the CCRO and therefore the final reports should not be admitted as evidence.
15The respondent submitted that although separate acknowledgement of expert duty forms were not submitted by Dr. Krishna and Dr. Bains, both reports include a section which contains an acknowledgment of expert duties.
16While I agree that the respondent did not file the CNRs and draft reports in keeping with the CCRO, I denied applicant’s request to exclude the reports from Dr. Krishna and Dr. Bains. I find that both reports contain a satisfactory acknowledgement of expert duty which contained the same information as the Tribunal form, and both physicians were aware of their duties as an expert witness when preparing the reports. Furthermore, for the reasons outlined below, I find that the respondent’s failure to submit the CNRs and draft reports is not material to whether the final reports are admitted into evidence.
17The applicant submitted that the omission of the CNRs and draft reports was deliberate and denied him an opportunity to cross-examine Dr. Bains on these documents in order to determine whether the final report is an accurate representation of the applicant’s complaints during the assessment. The applicant requested that Dr. Bains’ report be disregarded. I was not persuaded by this submission. The applicant had an opportunity to cross-examine Dr. Bains and was not prejudiced by the unavailability of CNRs and draft reports.
18The applicant also agued that he was prejudiced by not having an opportunity to cross-examine Dr. Krishna on the content of his report. Although he was summoned by the respondent, Dr. Krishna was travelling and was not available to testify at the hearing. I was also unpersuaded by this submission and denied the applicant’s motion, pursuant to s. 15 (1) of the Statutory Powers of Procedure Act, because insurer’s examination reports are routinely entered into evidence without oral testimony. The applicant did not utilize the option to rely on reports of s. 25 assessors to refute such reports at the hearing. Nevertheless, the unavailability of a summoned witness for the hearing is a procedural anomaly and as a result, this is one of the reasons why I place less weight on Dr. Krishna’s report in my analysis.
Motion to limit respondent’s witnesses to two expert witnesses
19The applicant also brought a motion to limit the respondent’s witnesses to two expert witnesses. This was resolved as the respondent agreed that only two expert witnesses would testify at the hearing.
ANALYSIS
Income Replacement Benefit
20The applicant is not entitled to IRBs for the pre-104 week period from December 10, 2022 to December 7, 2024. IRBs are not payable pursuant to s. 36(4) of the Schedule.
21To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed or self-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 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’s unemployment at the time of the accident does not preclude entitlement to pre-104 IRB
22The applicant was 64 years old at the time of the accident. He bases his claim for the pre-104 IRB on his employment as an organizer at Madrasa Ashraful Uloom OA AI Ashraf Islamic School (“Madrasa Ashraful”). He submitted that he was not working at the time of the accident and was taking “a rest” which started on October 31, 2022. He testified that he intended to return to his employment but was prevented from doing so by pain after the accident.
23The respondent submits that the applicant did not qualify for pre-104 IRBs because his soft tissue injuries did not prevent him from returning to his office-based employment and relies on the disability certificate completed by Deepali Sathe, physiotherapist at Airport Wellness and the report of Dr. Dinesh Ram Krishna, emergency physician, dated June 1, 2023. The respondent further submits that the applicant did not return to his employment because the Madrasa Ashraful may have been experiencing low student enrollment as a result of over-expansion and financial difficulties.
24I find that although the applicant was unemployed, he worked for more than 26 weeks of the 52-week prior period and as per Section 5(1)1 ii (A) of the Schedule, he meets the eligibility criteria for the purposes of the IRB calculation.
25The applicant relies on his pre-loss income as calculated by Matson Driscoll & Damico LTD forensic accountants based on the 52-week prior period only. While the applicant argues that he is entitled to IRBs based on this calculation, I disagree with this submission. The completion of income verification and determination of potential IRB quantum by forensic accountants does not prove that the applicant meets the “substantial inability” test as defined by the Schedule. I will now turn to the question of whether the applicant meets this test.
The applicant does not have a substantial Inability to perform the essential tasks of his pre-accident employment
26To apply the “substantial inability” test, the Tribunal must determine:
a) What were “the essential tasks” of the pre-accident employment?
b) What, if any, impairments were caused by the accident?
c) Did at least one of the applicant’s accident-related impairments result in a “substantial inability” to perform “the essential tasks”?
Essential tasks
27I find that the essential tasks of pre-accident employment were administrative in nature and utilized the applicant’s cognitive abilities as opposed to physically demanding tasks.
28Two copies of the employer’s confirmation form (“OCF-2”) completed by Rehan Ahmed were submitted as exhibits during the hearing, one by each party. It is difficult to determine the date when the forms were actually completed, since both OCF-2s include 09/01/2023 in the date field and the data entry convention of YYYYMMDD listed on the form was not followed. A Unifund letter dated February 2, 2023, acknowledges the receipt of multiple OCF-2 forms from the applicant on January 10, 19, and 23, 2023. Based on this acknowledgement, I infer that both forms were dated January 9, 2023 and not September 1, 2023. I accept the respondent’s evidence that multiple copies of the OCF-2 were submitted by the applicant and am unable to reconcile why the forms entered as exhibits differ when they were completed by the same employer/individual and include the same date.
29Nevertheless, the OCF-2 provides a source of information regarding the applicant’s employment and job duties. According to both OCF-2 exhibits, the applicant was employed full time at Madrasa Ashraful, however, the forms differ in terms of the information included in the ‘essential tasks of the job’ section. The ‘essential tasks of the job’ section on the OCF-2 entered as an exhibit by the applicant is left blank. The ‘essential tasks of the job’ section on the OCF-2 entered as an exhibit by the respondent lists the following “organizing affairs of the company and looking after”.
30The applicant’s testimony regarding the essential tasks of his job included the following responsibilities: organize activities at the school, hire people, consultations with teachers, decide where people have to work, travel between different locations, and resolve conflicts. The applicant also mentioned interacting with the student’s parents during the course of his employment.
31I find that the essential tasks were administrative in nature and utilized the applicant’s intellectual abilities as opposed to physical and/or repetitive tasks. In making this finding I rely on the applicant’s testimony and the OCF-2 entered as an exhibit by the respondent and conclude that “the essential tasks” of the applicant’s pre-accident role were “organizing affairs of the company” and co-ordination of the work of other employees at Madrasa Ashraful.
Impairments caused by accident
32The injuries described in a disability certificate dated January 18, 2023 (“OCF-3”), completed by Deepali Sathe, physiotherapist at Airport Wellness, establish that the applicant suffered sprain and strain injuries in the accident. Namely, sprain and strain of ribs and sternum, whiplash associated disorder (WAD 2) with complaint of neck pain with musculoskeletal signs, sprain and strain of shoulder joint, headache, and radiculopathy. A chest x-ray ordered by the applicant’s family physician, Dr. Bahauddin Danial on December 7, 2022, was normal and did not reveal rib fractures or other bony abnormalities.
Substantial inability
33I find that the applicant’s accident-related impairments did not result in a “substantial inability” to perform “the essential tasks”.
34The applicant relies on the OCF-3, which states that the applicant was substantially unable to perform the essential tasks of his employment. This disability certificate also states that he was able to return to work on modified hours and/or duties with a recommendation to avoid heavy/repetitive/ push/pull/overhead lifting activities. The anticipated duration of the disability was 9-12 weeks. Given that the essential tasks were administrative in nature, I find that the functional limitations in the OCF-3 do not preclude the applicant from being able to do the essential tasks. Furthermore, I note that the OCF-3 indicates that the applicant was able to return to work, albeit with some modifications.
35The applicant also relies on his testimony that chronic pain and an inability to sit for prolonged periods of time prevented him from being able to return to his employment at Madrasa Ashraful or to seek any other employment after the accident. I find, however that the applicant’s testimony was not corroborated as he did not point to any documentary evidence such as a functional capacity evaluation or clinical notes and records in support of his testimony. Therefore, I find that the applicant did not meet his onus to demonstrate that he is substantially unable to perform the tasks of his pre-accident employment.
36In support of my finding, I also note that the respondent highlights the opinion of its general practitioner assessor, Dr. Dinesh Ram Krishna, report dated June 1, 2023 in which Dr. Krishna concluded that “from a musculoskeletal perspective, it is this assessor’s opinion that the insured does not suffer a substantial inability to perform the essential tasks of his pre-accident employment” and that the applicant was “was vague about his employment”. I place less weight on this report because CNRs from the applicant’s family doctor are not listed in the ‘documents reviewed’ section of the Dr. Krishna’s assessment and it appears that these documents were not available prior to the assessment on May 4, 2023. I agree that the applicant’s medical history is an important factor in making clinical findings during an IE assessment and as a result, I assign less weight to the report of Dr. Krishna for this reason as well as his unavailability to testify at the hearing despite being summoned by the respondent.
37In sum, I conclude that the applicant’s injuries did not have a significant impact on the applicant’s ability to perform the essential tasks of his role as a religious school organizer. I find that the applicant’s role was administrative in nature and did not demand physical, repetitive tasks such as lifting, pushing, or pulling. I agree with Ms. Deepali Sathe, the physiotherapist who completed the OCF-3 that the applicant was “able to return to work on modified hours and/or duties” specifically since the nature of his role at Madrasa Ashraful did not involve physical tasks which may have been impacted by his temporary soft tissue injuries.
38I find that the applicant is not entitled to pre-104 IRBs.
Applicability of the MIG
The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit
39I find that the applicant has not demonstrated that he suffers from physical, psychological, or chronic pain injuries that warrant his removal from the MIG for the following reasons.
40Section 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.”
41An 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, or, if they provide evidence of an injury that is not included in the minor injury definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
42It is the applicant’s burden to establish entitlement to treatment beyond the $3,500.00 limit on a balance of probabilities.
43I find that the applicant’s arguments for the basis of removal from the MIG are not clear, however, based on his testimony and the evidence referenced at the hearing, it is my understanding that he is seeking removal on the basis of a pre-existing injury or condition, psychological issues and chronic pain.
44The respondent relies on the opinion of its general practitioner assessor, Dr. Rajdeep Bains, report dated May 28, 2024, in which Dr. Bains concluded that “from a strictly musculoskeletal perspective, the injuries the claimant sustained as a direct result of the subject accident are consistent with a ‘minor injury’”.
45I find that both parties’ submissions establish that the physical injuries sustained in the accident are defined as “minor injuries” in the Schedule and do not support the applicant’s removal from the MIG . There is no evidence before me of an injury that is not included in the definition of minor injury in s. 3(1).
The applicant did not suffer from pre-existing conditions that preclude recovery within the MIG
46I find that the applicant has not met his burden to demonstrate on a balance of probabilities that he has a pre-existing condition that would preclude him from achieving maximal medical recovery within the MIG.
47The test under s.18(2) for an insured to be removed from the MIG due to a pre-existing condition has two parts. The first is a diagnosis of a pre-existing condition by a medical professional, prior to the subject accident. Secondly, evidence from a medical professional that the pre-existing condition would preclude the applicant from achieving maximal medical recovery, if confined to the MIG.
48The applicant submits that he should be removed from the MIG because he made a number of complains including chronic pain, malaise and fatigue, sleep difficulties, and anxiety to Syed Nabeel, chiropractor, during the completion of an OCF-18 seeking approval for an orthopaedic assessment, dated March 11, 2024. He submits that his ‘bony’, psychological, and chronic pain will preclude him from achieving maximal medical recovery within the MIG.
49The respondent acknowledges that the applicant was diagnosed with diabetes and Bell’s palsy by his family physician prior to the accident, however, denies that these pre-existing conditions will preclude him from achieving maximal medical recovery. In this regard it relies on the report by Dr. Bains.
50I find that the applicant did not provide documented evidence by a health practitioner of a pre-existing medical condition for psychological or chronic pain. The applicant reports a prior history of low back pain in October 2019 which was resolved at the time of the accident. He testified that he is experiencing ongoing complains of pain in his neck, shoulder, back, right thigh, and right leg after the accident which have led him to modify his position during prayers and to walk with the assistance of a cane since June 2024. I find, however, that these pain complaints are not reflected in clinical notes and records from Dr. Danial between October 19, 2019 and May 2, 2023. Pain complaints were reported to Dr. Krishna, general practitioner, during an independent medical examination on May 4, 2023 to address the applicant’s IRB eligibility. It is unclear why pain complaints would be made to non-treating physician and not to the family doctor who has a long-standing relationship with the applicant. The lack of consistency in pain reports limits the probative value of these complaints and does not assist me in establishing that the applicant suffers from chronic pain as a pre-existing condition.
51Dr. Danial’s CNRs do not include any psychological or chronic pain complaints. The only mention of these complaints is in the OCF-18 completed by Alliance Diagnostics and Treatments Inc., a clinic which is proposing an assessment for the applicant. I find that Mr. Syed Nabeel, a chiropractor, is not qualified to diagnose psychological or chronic pain conditions and have reservations regarding the injury and sequela information listed on the treatment plan.
52As a result, I find that the applicant has not met his onus of demonstrating that he has a pre-existing condition that will prevent him from achieving maximal medical recovery if he is subject to the MIG limits.
The applicant does not suffer from chronic pain syndrome as a result of the accident
53For the reasons that follow, I find that the applicant is not suffering from chronic pain syndrome with functional limitations as a result of the accident.
54The Tribunal has established that a diagnosis of chronic pain syndrome removes an injured person from the MIG because it is not a minor injury. A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment.
55The applicant submits that he has chronic pain and relies on his oral testimony, an OCF-18 for an orthopaedic assessment completed by Syed Nabeel, chiropractor, and self-reports to insurer’s examination assessors that he is in pain as a result of the accident. The applicant further argues that Dr. Bains’ report and findings should be disregarded since she is not a chronic pain specialist.
56The respondent denies the applicant’s claims of chronic pain should remove him from the MIG and relies on the s. 44 report of Dr. Bains.
57I am not persuaded by the applicant’s submissions that he suffers from chronic pain. Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain, and the onus is on the applicant to demonstrate that he suffers from functionally disabling pain. Although the applicant reported back pain complaints to his family physician in October 2019, additional documentation of pain complaints to his treating physician is absent. The CNRs do not include any records of referrals to a chronic pain specialist. The applicant does not take prescription pain relievers and relies on over-the-counter medication once per day and diet and lifestyle modifications to control his pain on an on-going basis. He testified that he does not often seek the assistance of doctors and prefers to rely on holistic remedies instead. He has not provided evidence of a functional impairment. I therefore find that this response is more likely to describe an individual who is experiencing occasional instances of pain as opposed to chronic pain with functional impairment that would necessitate frequent interactions with medical professionals and use of prescription pain medication.
58The applicant has not met his evidentiary burden of showing that he has a chronic pain condition that would preclude recovery if subject to the MIG limit.
The applicant is entitled to treatment up to the $3,500.00 MIG limit
59As I have found that the applicant remains within the MIG, he is entitled to treatment up to the $3,500.00 MIG limit.
The applicant is not entitled to an award
60As there is no evidence of unreasonably withheld or delayed benefits, I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.
The applicant is not entitled to interest
61Given there are no benefits owed, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
ORDER
62The applicant is not entitled to IRBs.
63The applicant sustained minor injuries in the accident as defined under the Schedule. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
64The respondent is not liable to pay an award.
65The applicant is not entitled to interest pursuant to section 51 of the Schedule.
Released: November 29, 2024
Dagmara Szczudlo
Adjudicator