Citation: Sandhu v.The Co-operators General Insurance Company, 2024 ONLAT 21-009744/AABS

Licence Appeal Tribunal File Number: 21-009744/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:

Dilbagh Sandhu

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Andrea Seecharan, Counsel

For the Respondent:

Julianne Brimfield, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Dilbagh Sandhu, the applicant, was involved in an automobile accident on October 23, 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, the Cooperator’s General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2Following the accident, the applicant drove his vehicle to a police station and home. Neither Police nor Ambulance services attended following the event of the accident. The applicant reported to his family doctor, Dr. Murtuza Khoja, on October 24, 2020, that he did not experience a head injury, and he did not experience any pain as a result of the accident.

ISSUES

3The 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? The parties agree the MIG limits have been exhausted.

2. Is the applicant entitled to $1,760.00 for physiotherapy services, proposed by Total Care Management in a treatment plan/OCF-18 (“plan”) dated April 1, 2021?

3. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for physiotherapy services, proposed by Total Care Management in a treatment plan/OCF-18 (“plan”) dated March 2, 2021?

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

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

RESULT

4I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG. The funding limit for the MIG has been exhausted. Accordingly, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required and the applicant is not entitled to the treatment plans in dispute.

5The respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.

6The applicant is not entitled to interest on any overdue payment of benefits since there are no benefits owing.

ANALYSIS: The Minor Injury Guideline

Pre-existing Psychological Conditions & Psychological Impairments

7I find that the applicant has not met his burden to show that he has any pre-existing conditions that would prevent him from reaching maximal recovery if he is kept within the funding limits of the MIG. The applicant submits the existence of pre-existing conditions which are physical and psychological. The applicant relies on the Disability Certificate/ OCF-3, dated November 23, 2020, and the clinical notes and records (CNRs) by his family physician, Dr. Kamran Ahmad, of Pulse Urgent Care Centre. The OCF-3 describes the applicant experiencing a headache, whiplash associated disorder, sprain and strain of the thoracic spine and lumbar spine, in addition to emotional shock and stress.

8The test to determine causation is the “but for” test, that provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident he would not have suffered an impairment. A decision-maker is to take a robust and pragmatic approach to determining causation. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. In accordance with section 3 of the Schedule, “minor injury” is defined as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae.

10Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if he is subject to the $3,500 limit.” The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that his injuries are not minor, or the applicant has a pre-existing condition that would prevent maximal recovery within the MIG.

11In the Superintendent’s Guideline No. 01/14, Minor Injury Guideline, dated February 2014, it is stated that the existence of any pre-existing injury will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing injuries will not do so. Only in extremely limited situations, where compelling evidence is provided by a health professional satisfactorily demonstrating that a pre-existing condition which was documented by a health practitioner before the accident, will prevent a person from achieving maximal medical recovery from the minor injury for the reasons described, is the person’s impairment to be determined not to come within the Guideline. Exclusion of a person from the Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intend of the SABS and this Guideline.

12The applicant submits that he has pre-existing psychological conditions documented as preventing him from achieving maximal medical recovery if he is treated within the limits of the Minor Injury Guideline (MIG). The applicant submits that the CNRs describe his pre-existing psychological impairments of anxiety and depression which he submits were exacerbated by the accident.

13The respondent submits that while the applicant has pre-existing psychological impairments, the second prong of the test regarding medical evidence, establishing that the pre-existing psychological condition will prevent maximal medical recovery within the limits of the MIG, is not satisfied. The applicant saw two psychiatrists post-accident because of his pre-existing psychological and psychiatric conditions, Dr. Muhammad Ghalib and Dr. Abdulaziz Memon, and neither of the psychiatrists determined that the applicant’s psychological condition was affected by the accident.

14I find based on the evidence that the applicant’s pre-existing psychological conditions will not prevent maximal medical recovery within the limits of the MIG. The applicant was hospitalized in July 2019, by way of a Form 1, with a physician determining that the applicant required assessment at a psychiatric facility. The applicant was admitted into the William Osler Health System in July 2019, with psychotic symptoms, considered to be bipolar disorder. He was prescribed Olazapine and Lorazepam to stabilize his mental health.

15As stated, I find based on the evidence, that the applicant’s pre-existing psychological conditions will not prevent maximal medical recovery within the limits of the MIG, and in addition, that the applicant did not experience any psychological injuries as a result of the accident. The applicant does not describe the accident affecting his mental health in the CNRs of Family Physician, Dr. Murtuza Khoja, and the applicant’s mental health improves following the accident. On December 17, 2020, the applicant mentions the October 2020 accident to Dr. M. Ghalib, but he states that his sleep, appetite, energy, and concentration are good; that he does not require psychotropic medications, and that he is not experiencing paranoia, delusions, or psychosis. Psychiatrist, Dr. Abdullah Memon reports on April 22, 2021, that the applicant is no longer in need of prescription medication to treat manic episodes and he is advised by Dr. Muhammad Ghalib on December 17, 2020, to engage in exercise and physical activity to further improve his mental health.

Pre-existing Physical Conditions and Accident-related Physical Injuries

16I find that there is insufficient evidence that the applicant’s pre-existing physical conditions will prevent him from achieving maximum medical recovery if he is subject to the $3,500 limit of the MIG or that accident-related injuries remove him from the MIG. There is no medical report nor CNRs from any physician at Pulse Urgent Care that support that the applicant requires treatment outside the Minor Injury Guideline as a result of his pre-existing physical issues. The Family Physician, Dr. Murtuza Khoja, described the applicant on October 24, 2020, as having pre-accident chronic pain following of a workplace accident in 2012 or 2013, which resulted in a lumbar tear. The applicant stated on October 24, 2020, that he had developed right knee pain after the accident and lower back pain. Dr. Khoja opines that the applicant has a whiplash injury and makes a referral for x-rays to determine the extent of the applicant’s injuries post-accident.

17The post-accident diagnostic imaging and the applicant’s failure to fill prescriptions for pain medication or anti-inflammatories, do not support the applicant’s submission that his accident-related injuries are outside the limits of the MIG for the purpose of reaching maximal recovery. X-rays taken following the applicant’s reports of right knee and lower back pain, did not show right knee or back injury. A month and a half after the accident, x-rays of the applicant’s lumbar spine, pelvis and SI joints, showed no evidence of fracture, malalignment nor degenerative changes to the lumbar spine, hip joints, or SI joints. Another x-ray taken at the same time of the applicant’s right knee showed no evidence of fracture or malalignment, no significant degenerative changes, and no evidence of fluid, tears, tendinosis, or effusion. On October 27, 2020, Dr. Ahmad prescribed the applicant Flexeril and Naproxen based on his complaints of accident-related pain. Prescription summaries show that the applicant did not fill prescriptions for pain medication or anti-inflammatories post-accident.

18The applicant submits that his medical records support chronic back and neck pain diagnosis; that the CNRs are consistent with ongoing pain complaints from the time of the accident until the present in addition to numerous functional limitations such as a limited range of motion.

19The respondent submits that based on the clinical notes and records and diagnostic test results, the applicant’s complaints in the post-accident period are consistent with minor, soft tissue injuries. In addition, the respondent submits that there is no medical report nor CNRs from any physician at Pulse Urgent Care which support that the applicant requires treatment outside the Minor Injury Guideline as a result of his pre-existing physical issues.

20The IE examination by Dr. Riaz Moolla likewise determined that any pre-existing physical conditions were not aggravated by the accident, and that the applicant no longer had any accident-related impairments. Dr. Riaz Moolla, for the purpose of the IE examination, dated March 2, 2022, determined that the applicant’s accident-related injuries had resolved with no residual accident-related impairments. Dr. Moolla opined that the applicant required no further treatment nor rehabilitation services since Dr. Moolla’s examination did not reveal any evidence of an accident-related impairment. The applicant had what is described in the report as an excellent range of motion in his lumbar spine.

21The applicant described that his functionality was unaffected by the accident. Dr. Moolla determined that there was no impairment preventing the applicant from performing the essential tasks of his previous vocation as a forklift driver. The applicant described to Dr. Moolla that he was fully independent with all personal care and household tasks, including meal preparation, laundry, childcare, lawn mowing and snow shovelling. The applicant was unemployed at the time of the accident, after having worked as a forklift driver until 2017. However, post-accident, in January 2021, the applicant resumed work as a forklift driver. Dr. Moolla determined that there was no evidence of impairment preventing the applicant from performing the essential tasks of his previous vocation as a forklift driver.

22I find that there is insufficient evidence that the applicant’s pre-existing physical conditions will prevent him from achieving maximum medical recovery if he is subject to the $3,500 limit of the MIG or that accident-related injuries remove him from the MIG. There is no medical report nor CNRs from any physician at Pulse Urgent Care which support that the applicant requires treatment outside the Minor Injury Guideline as a result of his pre-existing physical issues. As stated, the applicant did not fill prescriptions for pain medication or anti-inflammatories post-accident, in addition diagnostic tests showed no evidence of fracture, malalignment nor degenerative changes to the lumbar spine, hip joints, or SI joints; in addition, diagnostic x-rays showed no evidence of fluid, tears, tendinosis, or effusion. The IE examination by Dr. Riaz Moolla likewise determined that any pre-existing physical conditions were not aggravated by the accident, and that the applicant no longer had any accident-related impairments at the time of examination. Dr. Moolla opined that the applicant required no further treatment nor rehabilitation services since Dr. Moolla’s examination did not reveal any evidence of an accident-related impairment.

Chronic Pain Syndrome

23I find that the applicant has not satisfied me that any chronic pain he experienced before the accident will prevent him reaching maximal medical recovery within the limits of the MIG or that he has developed chronic pain as a result of the accident. As described, the applicant complained of lower back pain and right knee pain post-accident, however, diagnostic tests showed no evidence of fracture, malalignment nor degenerative changes to the lumbar spine, hip joints, or SI joints; in addition, diagnostic x-rays showed no evidence of fluid, tears, tendinosis, or effusion. Post-accident, prescription summaries show that the applicant did not fill prescriptions for pain medication or anti-inflammatories prescribed by Dr. Ahmad. In addition, the IE examination by Dr. Riaz Moolla determined that any pre-existing physical conditions were not aggravated by the accident, and that the applicant no longer had any accident-related impairments by the time of examination.

24The applicant’s functionality was unaffected by the accident. Dr. Moolla determined that there was no impairment preventing the applicant from performing the essential tasks of his previous vocation as a forklift driver. The applicant described to Dr. Moolla that he was fully independent with all personal care and household tasks, including meal preparation, laundry, childcare, lawn mowing and snow shovelling.

25The applicant submits that his family physician, Dr. Ahmad describes the applicant experiencing chronic pain in the applicant’s back and neck. He submits that his chronic pain substantially interferes with his activities of daily living, despite appropriate therapies and prescribed medication. The applicant submits that the CNRs are consistent with ongoing pain complaints from the time of the accident until the present in addition to numerous functional limitations such as limited range of motion and stiffness in affected areas.

26The respondent submits that the applicant’s accident-related injuries are soft-tissue in nature, as diagnosed by Dr. Moolla in the IE examination. The respondent submits that the applicant does not have a report from an expert physical assessor to support that he suffers from chronic pain or that he requires treatment outside the Minor Injury Guideline. In addition, the respondent submits that the applicant has not sought approval for a chronic pain assessment, nor been referred to a pain clinic nor has the applicant taken any pain medication.

27The respondent submits that the applicant has failed to meet his onus to prove that he suffers chronic pain with functional impairment following the accident. The respondent submits that the applicant’s sporadic post-accident consultations with physicians for intermittent back pain complaints is not sufficient to establish chronic pain, as the CNRs do not contain any discussion regarding the degree of the applicant’s pain or its effect on his functionality. The respondent submits that the applicant has not demonstrated any functional impairment as a result of pain.

28I agree with the respondent’s submissions that the applicant did not report any functional limitations or impairments to his physicians at Pulse Urgent Care; nor was the applicant referred to a pain clinic nor did the applicant take pain medication, all of which features do not support the applicant’s case that he experiences chronic pain removing him from the MIG. I find that the applicant has not satisfied me that any chronic pain he experienced before the accident will prevent him from reaching maximal medical recovery within the limits of the MIG or that he has developed chronic pain as a result of the accident. As described the applicant complained of lower back pain and right knee pain post-accident, however, diagnostic tests showed no evidence of fracture, malalignment nor degenerative changes to the lumbar spine, hip joints, or SI joints; in addition, diagnostic x-rays showed no evidence of fluid, tears, tendinosis, or effusion.

29Post-accident, Dr. Ahmad prescribed Flexeril and Naproxen based on the applicant’s complaints of accident-related pain, however, prescription summaries show that the applicant did not fill prescriptions for pain medication or anti-inflammatories. In addition, the IE examination by Dr. Riaz Moolla determined that any pre-existing physical conditions were not aggravated by the accident, and that the applicant no longer had any accident-related impairments by the time of examination. Dr. Moolla opined that the applicant required no further treatment nor rehabilitation services since the IE examination did not reveal any evidence of an accident-related impairment.

30Finally, despite submissions to the contrary, the applicant’s functionality improved following the accident. Dr. Moolla determined that there was no impairment preventing the applicant from performing the essential tasks of his previous vocation as a forklift driver. The applicant described to Dr. Moolla that he was fully independent with all personal care and household tasks, including meal preparation, laundry, childcare, lawn mowing and snow shovelling. The applicant was unemployed at the time of the accident, after having worked as a forklift driver until 2017. However, post-accident, in January 2021, the applicant resumed work as a forklift driver. Dr. Moolla determined that there was no evidence of impairment preventing the applicant from performing the essential tasks of his previous vocation.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed in relation to the treatment plans or expense claims in dispute, the applicant is not entitled to interest.

Award

25The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.

Order

26I find that the applicant sustained minor injuries and is subject to the MIG. The funding limit for the MIG has been exhausted.

27The applicant is not entitled to the treatment plans in dispute.

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule, however as no benefits are owing or overdue, no interest is owing to the applicant.

29The respondent is not liable to pay an award under s. 10 of O. Reg. 664 because it did not unreasonably withhold or delay payments to the applicant.