Anas Tokatlie v. Co-operators General Insurance Company, 2024 CanLII 20687

Citation: Tokatlie v. The Co-operators General Insurance Company, 2024 ONLAT 22-003370/AABS

Licence Appeal Tribunal File Number: 22-003370/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:

Anas Tokatlie

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Teresa Walsh

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Emily Schatzker, Counsel

HEARD: By way of written submissions

OVERVIEW

1Anas Tokatlie, the applicant, was involved in an automobile accident on February 13, 2020. The applicant sought benefits from the respondent, Co-operators General Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The respondent denied the benefits in dispute on the basis that the applicant sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”). Further, the respondent denied the applicant’s claim for an income replacement benefit (“IRB”), as the applicant had not submitted a disability certificate (OCF-3) to indicate that he had met the test for entitlement to the benefit. Additionally, the respondent denied the IRB as the applicant continued to work post-accident. The applicant disagreed with the respondent’s position and applied to the Tribunal for resolution of the dispute.

PRELIMINARY ISSUE

3At the January 17, 2023 case conference in this matter, the respondent indicated its intention to raise as a preliminary hearing issue that the applicant is precluded from proceeding with his IRB claim as no OCF-3 had been received by the respondent, and thus, no application for the IRB was made within the Schedule’s prescribed 104 weeks post-accident. In its hearing submissions, the respondent addressed this preliminary issue as part of its overall submissions on the IRB claim. In this decision, I have likewise addressed this preliminary issue as part of my overall assessment, findings and conclusions on the IRB claim.

ISSUES

4The 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 MIG limit? Note: The respondent’s hearing submissions indicate that $381.95 remains under the MIG limit.

ii. Is the applicant entitled to an IRB in the amount of $400.00 per week from February 20, 2020 to present and ongoing?

iii. Is the applicant entitled to the assessments proposed by Scarborough Medical Centre, as follows:

a. $1,160.00 for chiropractic services, in a treatment plan/OCF-18 (“plan”) submitted on April 30, 2020, denied on May 14, 2020;

b. $1,300.00 for chiropractic services, in a plan submitted on July 31, 2020, denied on August 11, 2020;

c. $3,714.49 for chiropractic services, in a plan submitted on July 31, 2020, denied on August 11, 2020;

d. $1,995.00 for the cost of a psychological assessment, in a plan submitted on August 8, 2020, denied on August 11, 2020; and

e. $4,089.95 for psychological services, in a plan submitted on November 5, 2020, denied on November 13, 2020?

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

RESULT

5The applicant has not met his onus of proving that his accident-related injuries warrant removal from the MIG.

6The applicant is entitled to the $381.95 that the respondent indicates remains under the MIG limit, as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule.

7Pursuant to s. 36(3) of the Schedule, the applicant is not entitled to claim an IRB. Further, the applicant has not established entitlement to an IRB under ss. 5 or 6 of the Schedule, nor has he shown any actual income loss as a result of the accident.

ANALYSIS

Applicant’s injuries do not fall outside the MIG

8I find the applicant has not met his burden in establishing that his accident-related injuries fall outside the definition of a minor injury as set out in s. 3(1) of the Schedule.

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. 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.”

10An 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 any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

11In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.

(i) No evidence of a documented pre-existing injury/condition or chronic pain with a functional impairment

12The applicant’s submissions make no mention, nor is there any evidence, of a documented, pre-existing injury or condition with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if the applicant remains within the MIG. Further, there is no submission or evidence of the applicant suffering from chronic pain with a functional impairment, warranting treatment outside the MIG.

(ii) No compelling evidence of accident-related physical injuries falling outside the MIG

13I find the evidence establishes that the applicant’s physical injuries related to the accident fall within the Schedule’s minor injury definition.

14In support of his submission that he sustained physical injuries warranting treatment outside the MIG, the applicant primarily relies on the medical record of a single appointment with his family physician Dr. Abounaja, 10 days post-accident. At this appointment, the applicant complains of a few weeks of intermittent low back pain and right and left shoulder pain, with pain radiating to the base of his neck, as well as to the arm, at an intensity level of “6 and 8 out of 10”. The applicant further relies on a treatment confirmation form (OCF-23) dated February 29, 2020, prepared by chiropractor Dr. Chan, indicating complaints of neck pain, headaches, upper and lower back pain, chest pain and on examination, restrictions in the cervical spine. The applicant also appears to rely on the s. 25 psychiatric assessment of Dr. Carriere carried out on October 1, 2020, referencing the applicant’s subjective report of back and foot pain.

15The respondent relies on more recent medical records from the applicant’s family physician in submitting that the applicant’s accident-related injuries are minor. In particular, the respondent submits that after the appointment on February 23, 2020, 10 days post-accident, the applicant did not see Dr. Abounaja again until more than two years later, on March 31, 2022. Dr. Abounaja performed a general assessment at the March 2022 appointment and documented that the applicant reported no leg pain, joint pain, back pain or headaches. On physical examination, the applicant was found to have full range of motion in his upper and lower extremities, normal tone and power sensation.

16I agree with the respondent that the totality of the medical evidence fails to establish that the applicant sustained anything beyond minor physical injuries in the accident. In support of my finding, I note the following:

i. The OCF-23 prepared by Dr. Chan shortly after the accident describes subjective complaints and objective findings consistent with minor sprains, strains and clinically associated sequelae only;

ii. Dr. Carriere is a psychiatrist and his reference to the applicant’s subjective report of back and foot pain in the October 1, 2020 assessment is not supported by any objective evidence;

iii. The applicant has produced no post-accident diagnostic imaging records evidencing any fractures or other non-minor injuries;

iv. At none of the post-accident appointments with Dr. Abounaja does the applicant even refer to the accident;

v. Other than a single prescription for pain medication provided by Dr. Abounaja on February 23, 2020, there is no evidence of the applicant receiving any other prescription medication for injuries related to the accident;

vi. As part of the general assessment carried out by Dr. Abounaja in March of 2022, the applicant is specifically noted to deny any physical complaints possibly related to the accident; and

vii. In records for the four most recent appointments with Dr. Abounaja, all in 2022, none of the applicant’s complaints or treatment are related to possible accident-related injuries.

17In sum, I find the applicant has failed to establish that he suffers from accident-related physical injuries that fall outside the MIG.

(iii) No compelling evidence of accident-related psychological injuries warranting removal from the MIG

18I find the applicant has failed to demonstrate that he sustained psychological impairments as a result of the accident which would warrant his removal from the MIG.

19An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.

20In order to be removed from the MIG, the applicant must show that they have an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

21In submitting that he suffers from clinically significant psychological impairments due to the accident, the applicant relies in particular on the s. 25 psychiatric report of Dr. Carriere. Based on documentation reviewed and an assessment of October 1, 2020, Dr. Carriere expressed the opinion that the applicant suffers from adjustment disorder with anxiety and panic attacks due to the accident. He recommended psychotherapy and cognitive behavioural therapy and added that, if full remission was not achieved by these therapies, pharmacotherapy could be considered.

22In the respondent’s submission, Dr. Carriere’s report supports, at most, the applicant having sustained psychological impairments in the accident that are clinically associated sequelae of minor injuries. The respondent points to the history obtained by Dr. Carriere, indicating the applicant did not suffer from any symptoms suggestive of depression, did not meet the criteria for post-traumatic stress disorder and did not show evidence of any other psychiatric conditions. The respondent further submits that Dr. Carriere’s diagnosis is at odds with the clinical notes and records of the applicant’s family physician, Dr. Abounaja. Specifically, the respondent submits that, although Dr. Abounaja received a copy of Dr. Carriere’s report, he did not make any psychiatric referrals or prescribe any psychiatric medication for the applicant. Moreover, submits the respondent, during the general assessment carried out by Dr. Abounaja in March 2022, the applicant was noted to deny any sleep disturbance, depressed mood, phobias or panic attacks. On examination, Dr. Abounaja recorded that the applicant “looks well, not in distress … oriented and alert”.

23I find that while the applicant may have experienced some psychological impairments in the months following the accident, these were temporary, post-accident sequelae. Upon careful review of Dr. Carriere’s report, I find that overall, the applicant was indicated to be working and carrying out activities of daily living despite any adjustment disorder, anxiety or panic attacks. The applicant reported to Dr. Carriere that he continued to drive, enjoyed most activity, was optimistic and hopeful for the future. I find the lack of any mention of psychological concerns in the treating records of Dr. Abounaja, and the specific denial of such symptoms in the general assessment of March 2022, undermines the applicant’s submission that he suffers from clinically significant psychological impairments justifying treatment outside of the MIG.

24In sum, I find the applicant has not proven that he suffers from a clinically significant psychological impairment as a result of the accident warranting treatment outside of the MIG.

No requirement to address reasonableness and necessity of the disputed plans

25Based on my finding that the applicant remains within the MIG, I find there is no requirement to review the treatment plans in dispute to determine if they are reasonable and necessary.

26However, the applicant is entitled to the amount remaining within the MIG limit (indicated by the respondent to be $381.95), as such benefits are deemed reasonable and necessary under s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

Applicant is not entitled to an IRB

27I find the applicant is not entitled to claim an IRB based on his failure to submit a disability certificate (OCF-3).

28Section 5(1)1.i. of the Schedule states that an insurer shall pay an IRB to an insured person who was employed when the accident occurred, sustained an impairment due to the accident and, as a result, suffers a substantial inability to perform the essential tasks of his employment within the 104 weeks following the accident.

29Sections 36(2) and 32(1) of the Schedule set out the timing requirements for claiming an IRB. An applicant is required to notify the insurer of his intention to apply for an IRB no later than seven days after the circumstances arose that gave rise to the benefit entitlement, or as soon as practicable after that day. A disability certificate (OCF-3) is to be submitted with the benefit application.

30Section 36(3) of the Schedule provides than an applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability benefit is submitted.

31As noted above, during the January 17, 2023 case conference, the respondent indicated its intention to raise as a preliminary hearing issue that the applicant is statute-barred from claiming an IRB due to his failure to submit a disability certificate.

32The respondent submits that, as of the date its hearing submissions were delivered (190 weeks post-accident), the applicant had failed to submit a disability certificate as required by the Schedule and is accordingly statute-barred from claiming an IRB. The respondent relies on Tribunal cases, including C.G. v. Pembridge Insurance Company, 2020 CanLII 51276 (ON LAT) and Tyulyakov v. Allstate Insurance Company of Canada, 2022 CanLII 119994 (ON LAT), where it has been found that an applicant’s failure to submit a disability certificate within 104 weeks of the accident bars them from pursuing an IRB.

33In his submissions, the applicant does not provide any reason for his failure to submit a disability certificate, nor does he address whether this failure should bar his IRB claim.

34Based on the clear wording in the Schedule as to the requirement for an applicant to submit a disability certificate (OCF-3) as part of their application for an IRB and Tribunal case law in which an applicant’s failure to submit a disability certificate within 104 weeks of the accident barred them from pursuing an IRB, I find that the applicant is not entitled to claim an IRB from the respondent.

Applicant has not established entitlement to an IRB under the Schedule

35In addition to my finding that the applicant is not entitled to an IRB due to his failure to submit a disability certificate, I deny the applicant’s IRB claim as he has failed to establish entitlement to this benefit under ss. 5 or 6 of the Schedule, and indeed, has shown no income loss post-accident.

(iv) No evidence the applicant was substantially unable to meet essential tasks of employment or is completely unable to engage in suitable employment

36Under s. 5(1)1.i. of the Schedule, an applicant bears the onus of establishing that he is substantially unable to complete the essential tasks of his employment, in order to receive an IRB within the 104 weeks following the accident. Section 6(2)(b) of the Schedule provides that an insurer is not required to pay an IRB after the first 104 weeks post-accident, unless, due to an accident-related impairment, an insured person suffers a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

37The applicant has put forward no evidence that, during the first 104 weeks post-accident, he was substantially unable to complete the essential tasks of his employment. Further, the applicant has put forward no evidence that, after the first 104 weeks post-accident, he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

38I find the applicant has failed to establish that, within the first 104 weeks post-accident, he was substantially unable to complete the essential tasks of his pre-accident employment. Further, I find the applicant has failed to establish that, after the first 104 weeks post-accident, he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience.

(v) No evidence the applicant has suffered any income loss post-accident

39The applicant has failed to provide evidence as to any actual income loss due to the accident.

40The respondent submits that the applicant continues to work full-time in construction as he did pre-accident. The respondent’s submission has not been denied or otherwise challenged by the applicant.

41I find the applicant has failed to establish that he suffered any income loss due to the accident.

42In summary, in addition to my finding that the applicant is not entitled to proceed with his IRB claim as he has not submitted a disability certificate, I deny the applicant’s IRB claim as he has failed to establish entitlement to this benefit under ss. 5 or 6 of the Schedule, and indeed, has shown no income loss post-accident.

ORDER

43For the reasons outlined above, I find that:

i. The applicant has failed to establish that his accident-related injuries warrant removal from the MIG.

ii. The applicant is entitled to the amount remaining under the $3,500.00 MIG limit as of the date of this decision (indicated by the respondent to be $381.95), as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to an IRB, due to his failure to submit a disability certificate (OCF-3).

iv. The applicant’s claim for an IRB is further denied as he has failed to establish that:

a) during the first 104 weeks post-accident, he was substantially unable to complete the essential tasks of his pre-accident employment;

b) after the first 104 weeks post-accident, he suffered a complete inability to engage in any employment for which he is reasonably suited by education, training or experience; and

c) he has suffered any income loss due to the accident.

v. The application is dismissed.