Licence Appeal Tribunal File Number: 23-000535/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:
Daud Mohammad Akbari
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Saloumeh Baghbani, Counsel
For the Respondent: Simran Walia, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Daud Mohammad Akbari, the applicant, was involved in an automobile accident on April 30, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
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.
Is the applicant entitled to $2,951.33 for chiropractic services, proposed by Healthmax Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted November 25, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3Based on the totality of the evidence before me, I find:
The applicant sustained predominantly minor injuries as defined in the Schedule and thus he is subject to treatment within the monetary limits of the MIG.
As there are no overdue benefits payable, the applicant is not entitled to interest.
Therefore, the application is dismissed.
ANALYSIS
Applicability of the Minor Injury Guideline
4The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 (1) of the Schedule 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”. The terms, “strain”, “sprain”, “subluxation” and “whiplash associated disorder” are also defined in section 3 (1). Section 18 (1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00. section 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.”
5An 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.
Has the applicant sustained predominantly minor injuries as defined in the Schedule and thus he is subject to treatment within the monetary limits of the MIG?
6The applicant submits that his injuries cannot be considered under the MIG due to his diagnosed psychological injuries and impairments that the recommended OCF-18 is reasonable and necessary as he has ongoing neck and shoulder pain which requires treatment. He submits despite his cancer treatments and surgeries in 2020 and 2021 that prevented him from dealing with the accident injuries, he should be entitled to the above treatment plan.
7The respondent submits that the applicant has suffered injuries that are treated within the MIG are found to fall outside of the MIG. OCF-18s by themselves do not prove that proposed treatments are reasonable and necessary. The respondent submits that the applicant has failed to discharge his burden of proof in this case for the OCF-18 in dispute.
8I find the evidence shows that on August 5, 2020, the applicant vested Dr. Dabidiyan as his family doctor and reported that he was involved in a T-bone collision on April 30, 2020, and since the collision, has had chronic neck pain. Dr. Dabidiyan noted the applicate to be suffering from neck pain due to the collision and advised him to continue with physiotherapy. On September 16, 2020, the applicant reported to Dr. Dabidiyan that he continued to have neck pain since the collision that radiates to his shoulders for which he takes Advil that is of no assistance in providing pain relief. On August 25, 2021, he reported having shoulder pain and limited range of motion in his left shoulder. Dr. Dabiyan noted that the applicant was suffering from left shoulder pain with limited range of motion and advised him to attend physiotherapy.
9The applicant was found to have a partial tear in his shoulder, The applicant reported shortly after the collision that he had shoulder pain. His family doctor, Dr. Dabidiyan specifically recommended that he receive ongoing physiotherapy. Although he reported shoulder pain from date of the accident, April 2020 to the date of his facial cancer diagnosis, his most compelling complaint was neck pain. The only recommendation that his family doctor made was physiotherapy. It was 11 months later, after his cancer treatments, that the applicant continued his post-accident injuries treatment with a visit to his family doctor about his shoulder pain, not his previous neck pain. Dr. Dabidiyan also encouraged him to do physical activity as he felt that the applicant was fit enough to do some exercise.
10Similarly, despite becoming cancer-free as of February 2021, he visited his family doctor seven times that year. His dominant complaint was of a left-shoulder rotator cuff tear, where an ultrasound confirmed only a partial tear of the supraspinatus. This is not attributed to the accident according to the respondent as this pain did not exist pre-September 2021 nor are there any notations by his family doctor or others that it was caused by the accident. I find that for these reasons, on the balance of probabilities the applicate suffered minor injuries that can be treated within the MIG.
Is the applicant entitled to $2,951.33 for chiropractic services, proposed by Healthmax Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted November 25, 2022?
11The applicant has failed to produce sufficient, corroborating, and contemporaneous medical evidence regarding any neck and shoulder evidence that could be treated beyond the MIG. See citation 18-003544 v Aviva Insurance Canada, 2019 CanLII 76839 (ON LAT) at paras 12, 13, and 22.
12I agree with the applicant’s submission that his physical injuries are a legitimate goal for treatment. However, I find there are no contemporaneous complaints of physical pain in the clinical notes of the family doctor, and Dr. Fazeli’s notes that would persuade me from his removal from the MIG.
13Also Dr. Fazel, a clinical psychologist, had given a diagnosis of chronic pain of his neck and shoulder, he did not refer him to a chronic pain specialist or give any medication for the pain, referral to a different doctor for assessment or given any other medical attention The applicant is back to work as an uber driver and Dr. Fazili’s notes states that he is doing quite well at the time of the examination. I find that the applicant on the balance of probabilities has not proven that the OCF-18 is not reasonable or necessary and is not payable.
14The applicant gave reply evidence in response to the respondent’s submissions. I find that there is no additional medical evidence, or additional arguments from the respondent’s materials to persuade me that would give weight to my decision. The evidence is the same as the original applicant’s submissions.
15I find the applicant has not demonstrated that the OCF-18 is reasonable and necessary.
No interest is payable
16As no benefits are overdue, no interest is payable.
ORDER
17As a result of the above and on a balance of probabilities, I find that:
The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.
The applicant is subject to treatment within the monetary limits of the MIG. Because the parties have agreed that the MIG limits have been exhausted, the applicant is not entitled to the disputed treatment and assessment plan.
As there are no overdue benefits payments, the applicant is not entitled to interest.
The application is dismissed.
Released: December 18, 2024
__________________________
Roderick Walker
Adjudicator