Licence Appeal Tribunal File Number: 21-009473/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:
Mohamed Abdullahi
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Maka Metreveli, Paralegal
For the Respondent:
Anthony M Naples, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Mohamed Abdullah (the “applicant”) was involved in an automobile accident on August 9, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Certas Home and Auto Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied treatment outside the MIG. Based on correspondence dated August 7, 2020, the MIG limit is exhausted. The applicant must be found to warrant treatment outside the MIG to be entitled to the disputed treatment plans.
ISSUES
3The issues in dispute 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 MIG limit?
Is the applicant entitled to a medical benefit in the amount of $3,696.50 for chiropractic services, proposed by Mackenzie Medical Rehabilitation in a treatment plan/OCF-18 (“treatment plan”) dated December 3, 2019?
Is the applicant entitled to a medical benefit in the amount of $1,300 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated March 3, 2020?
Is the applicant entitled to a medical benefit in the amount of $1,977.05 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated July 29, 2020?
Is the applicant entitled to a medical benefit in the amount of $2,200 for a psychological assessment, proposed by Princeton Hills Medical Assessments Inc. in a treatment plan dated August 17, 2020?
Is the applicant entitled to a medical benefit in the amount of $2,520 for an orthopaedic assessment, proposed by Princeton Hills Medical Assessments Inc. in a treatment plan dated August 17, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons that follow, I find that:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
As the applicant remains within the MIG, and as the MIG limit of $3,500.00 has been exhausted, he is not entitled to the treatment plans in dispute.
The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.
ANALYSIS
The Minor Injury Guideline (“MIG”)
5Section 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. 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.”
6An insured person 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 from their minor injury 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.
7The applicant submits that he should be removed from the MIG due to his accident-related injuries. He indicates that he suffers from chronic pain to his back, shoulders, and neck as well as psychological and emotional trauma as a result of the accident that warrants removal from the MIG. The applicant relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Mohamed Asmal, and Mackenzie Medical Rehabilitation Centre.
8In response, the respondent submits that the applicant failed to meet his onus of proving that his accident-related injuries warrant removal from the MIG. The respondent submits that no medical practitioner has opined that the applicant suffers from a pre-existing medical condition that would affect his recovery if he were subject to the MIG limits. Further, the applicant does not suffer from chronic pain with functional impairment or a psychological condition.
The applicant did not sustain injuries that warrant removal from the MIG
9I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.
Pre-existing condition
10The respondent argues that no medical practitioner has opined that any pre-existing health issues would affect the applicant’s recovery if he were subject to the MIG limits. Meanwhile, the applicant does not submit that he suffers from a pre-existing condition that would prevent him from achieving maximal recovery from his accident-related injuries if he is treated under the MIG.
11A review of Dr. Asmal’s CNRs revealed that the applicant has a pre-existing condition. Indeed, he was involved in an automobile accident in September 2018, and as a result, he suffers from neck and back pain, insomnia, and anxiety. He complained of pain to his neck and back to Dr. Asmal on April 25, 2019, May 9, 2019, and July 23, 2019, and no diagnosis was noted by Dr. Asmal. He was also assessed by Dr. Jagtaran Singh Dhaliwal, psychiatrist, and according to a psychiatric consultation report dated June 17, 2019 completed by Dr. Dhaliwal, the applicant presented with symptoms of post-traumatic stress disorder and depression.
12I agree with the respondent. Section 18(2) of the Schedule requires compelling evidence of a pre-existing condition documented by a health practitioner before the accident, and which prevents the achievement of maximal recovery under the MIG. Although the applicant’s neck and back pain as well as his post-traumatic stress disorder and depression may constitute documented pre-existing conditions, the applicant has not directed me to compelling evidence indicating that these medical conditions prevent him from achieving maximal recovery from any accident-related minor injury under the MIG. I find that the applicant has not met this test.
13Accordingly, I find that the applicant has not provided compelling evidence that a pre-existing condition is preventing his maximal recovery under the MIG as required by s. 18(2) of the Schedule.
Chronic pain
14The applicant submits that he suffers from chronic pain to his neck, back, and shoulders as a result of the accident which warrants his removal from the MIG.
15In response, the respondent submits that there is no evidence that the applicant’s injuries fall outside of the MIG due to chronic pain with functional impairment caused by the subject accident. Further, the applicant does not specify whether his alleged pain causes any functional impairment. The respondent also argues that an entry noting chronic pain, or a pain complaint, is not akin to a diagnosis of chronic pain and relies on Bowen v. Aviva Insurance Company, 2021 CanLII 48177 (ON LAT).
16I find that there is insufficient evidence to support that the applicant suffers from chronic pain with functional impairment as a result of the accident. Although the applicant asserts that following the accident, he immediately experienced pain to his neck and lower back, there are no objective medical records to support this assertion. Indeed, the applicant did not seek medical attention immediately following the accident. Emergency medical services did not attend the scene of the accident. The applicant did not attend the emergency room or consult his family physician. No diagnostic imaging was conducted.
17I further find that the applicant has failed to establish that his neck and back pain was caused by the subject accident. It is well established that the test to determine causation is the “but for” test (see: Sabadash v. State Farm et al., 2019 ONSC 1121 at para 31). As such, the applicant must show, on a balance of probabilities, that he would not suffer from neck and back pain but for the August 2019 accident.
18For the reasons that follow, the applicant has not established that the August 2019 accident was the necessary cause for his neck and back pain. As indicated above, the applicant previously injured his neck and back in the September 2018 accident. Further, based on the applicant’s medical evidence, following the subject accident, he did not seek medical attention for his neck and back pain until December 12, 2019 when he consulted Dr. Aswal. However, the clinical note fails to make a distinction between the applicant’s September 2018 injuries and August 2019 injuries. Additionally, the applicant was involved in a third automobile accident in January 2020, and Dr. Aswal’s clinical notes dated March 24, 2020 and November 5, 2020 do not expressly attribute the applicant’s complaints of back pain to the August 2019 accident.
19Finally, the applicant’s submissions and evidence are lacking in demonstrating that his pain causes any functional impairment, and the applicant has not directed me to any evidence to support that he suffers from functional impairment.
20Considering the above, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
Psychological Condition
21The applicant submits that his psychological impairment warrants his removal from the MIG. In response, the respondent denies that the applicant sustained a psychological impairment as a result of the accident.
22I do not find the applicant’s argument and medical evidence that he sustained a psychological impairment as a result of the accident persuasive. According to a treatment plan dated August 17, 2020, Dr. Kushner provisionally diagnosed the applicant with suffering from an adjustment disorder with mixed anxiety and depressed mood, specific phobia, situational type (driving and travelling as a passenger). However, this provisional diagnosis is heavily based on the applicant’s self-reporting. Further, there is no objective medical evidence to support the applicant’s claim that he suffers from a psychological impairment as a result of the accident. There are no contemporaneous records documenting any psychological complaints or impairments as a result of the accident, and the applicant did not report any psychological complaints to Dr. Asmal relating to the subject accident.
23Accordingly, I agree with the respondent that the evidence supports that the applicant’s accident-related injuries fall within the definition of a minor injury under s. 3 of the Schedule. As such, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
The Treatment Plans
24Having found that the applicant remains within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that he is not entitled to the treatment plans in dispute.
Interest
25Given that there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
26For the reasons outlined above, I find that:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
As the applicant remains within the MIG, and as the MIG limit of $3,500.00 has been exhausted, he is not entitled to the treatment plans in dispute.
The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.
27The application is dismissed.
Released: January 4, 2024
Ludmilla Jarda
Adjudicator