Licence Appeal Tribunal File Number: 23-000442/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:
Saleh Abuabdo
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Saleh Abuabdo, Applicant
Rajiv Kapoor, Paralegal
For the Respondent:
Makwana Maneesh, ADR Adjustor
Simran Walia, Counsel
Interpreter:
Amal Khoury - Arabic Language
Court Reporter:
Caitlin Westerhout
Heard by videoconference:
March 18, 2024
OVERVIEW
1Saleh Abuabdo (the “applicant”) was involved in an automobile accident on January 9, 2021, 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 Allstate Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PROCEDURAL ISSUE
The applicant seeks to have the matter heard by way of written hearing
2I find that the matter will be heard by way of videoconference as scheduled because the parties and an Arabic language Interpreter are present.
3The applicant filed a motion with the Tribunal on March 13, 2024, requesting that the hearing format be changed from a videoconference hearing to a written hearing as he withdrew his claim for an income replacement benefit (IRB) that was initially an issue in dispute, and that the remaining three treatment plans could be more efficiently argued by way of written hearing. The applicant further submits that there is a language barrier and that he cannot read or write in English and as such would not be able to follow exhibits shared during the hearing.
4The respondent submits that it was made aware only three days prior to the hearing that the applicant opted to withdraw the IRB as an issue in dispute. The respondent submitted that it would be seeking costs from the applicant as counsel had prepared for the hearing in advance. Further she thought that this was an ambush tactic from the applicant, and that not proceeding with this videoconference hearing would cause further delay should the hearing be changed to a written hearing format.
5As the parties were present and an Arabic Interpreter was at the hearing, I found that the most efficient, proportional, and expeditious avenue was to proceed with the hearing by videoconference. Further the applicant was able to understand and communicate in English, I accepted that between his knowledge of the English language and the presence of the interpreter that there would be no prejudice to the applicant by proceeding with the videoconference hearing.
6This matter was assigned four hearing days per the Tribunal’s case conference summary report and order dated August 31, 2023; however, the IRB was withdrawn as an issue in dispute, therefore I allowed one hearing day for the remainder of the issues in dispute to be heard.
ISSUES
7The 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 Minor Injury Guideline (“MIG”) limit? Note: The respondent submits that the MIG limits have been exhausted. The applicant submits that the MIG limits have not been exhausted as $3,353.00 out of the $3,500.00 have been incurred.
ii. Is the applicant entitled to $1,318.00 for physiotherapy, proposed by Good Health Rehabilitation in a treatment plan/OCF-18 (“plan”) submitted on April 15, 2021, and denied on April 20, 2021?
iii. Is the applicant entitled to $299.25 ($1,297.25 less $998.00 approved), proposed by Good Health Rehabilitation in a plan submitted on April 19, 2021, and denied on April 23, 2021?
iv. Is the applicant entitled to $3,092.75 for physiotherapy, proposed by Good Health Rehabilitation in a plan submitted on July 8, 2021, and denied on July 12, 2021?
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?
8Withdrawn Issue: The applicant withdrew IRB as an issue in dispute.
RESULT
9The applicant remains in the MIG and is not entitled to the disputed OCF-18s.
10Since no benefits are overdue or unreasonably withheld or delayed, neither interest nor award are payable.
ANALYSIS
Applicability to the MIG
11I find that the applicant has not demonstrated that he should be removed from the MIG.
12Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustained 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.”
13An 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 from any accident-related 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.
14In this case, the applicant submits that removal from the MIG is warranted because of chronic pain, a pre-existing back condition, a psychological condition that developed because of the accident and because insufficient reasons were given by the respondent for the denial of the applicant’s medical benefits. The applicant relies on the clinical notes and records of Dr. Ban Rassam (family doctor), the CNRs of Good Health Rehabilitation Centre and the CNRs of Trillium Health Partners.
15The respondent argues that the applicant’s injuries are predominately minor and that the medical evidence does not establish that the applicant suffers from chronic pain or psychological impairments arising from the accident, or a pre-existing medical condition that would warrant removal from the MIG. The respondent further submits that all notices were sent with proper notice and reasons for the denial of the OCF-18s. The respondent relies on the clinical notes and records of Dr. Ban Rassam (family doctor), CNRs of Credit Valley Hospital, the ambulance call log report, the CNRs of Good Health Rehabilitation and the explanation of benefits correspondence.
Were insufficient reasons given for the denial of benefits?
16As the applicant claims that the respondent’s denials of the disputed OCF-18s are noncompliant I must analyze this argument first as a conclusion that is favourable to the applicant would open up the consequences under s. 38(11) of the Schedule, including the respondent’s potential liability to pay for the disputed OCF-18s.
17I find that the respondent did give proper reasons for the denial of the OCF-18s in accordance with s. 38 and s. 38(9) of the Schedule.
18Section 38(8) states that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary. In this case, as the applicant was not removed from the MIG, s. 38(9) also applies which states that if the insurer believes that the Minor Injury Guideline applies to the insured person’s impairment, the notice under subsection (8) must so advise the insured person of that fact.
19The applicant submits that the insurer did not give proper reasons for the denial of benefits to the applicant in accordance with s. 38(8) and that he should be removed from the MIG on these grounds. The applicant summoned the respondent’s ADR Adjustor Makwana Maneesh and relied on his testimony and physical copies of communication between the applicant and the respondent.
20The respondent argues that all denials were compliant in relation to the OCF-18s advising the applicant that the respondent’s position is that the MIG applies to him.
21I agree with the respondent. The denials’ reasons state that because his injuries fall within s. 3(1) definition of a minor injury, he remains in the MIG. Further, in partly approving the disputed treatment plans, the respondent communicated that as the treatment facilities’ fee rates were higher than the professional services guideline rates for physiotherapy. I therefore conclude on a balance of probabilities that the respondent fulfilled their obligations under ss. 38(8) and (9) of the Schedule.
The applicant is not removed from the MIG due to chronic pain
22I find the applicant has not established that he suffers from accident-related chronic pain.
23The applicant submits that he continues to experience pain in his back, neck, shoulders and suffers from headaches because of the motor vehicle accident. The applicant testified that his pain is significantly reduced and that he feels good when being treated by physiotherapy and massage and that he must take medication to manage his pain. He testified that he does not help around the house and is unable to lift his daughter onto his shoulders like he once did. The applicant was not employed pre- or post-accident, he receives income support from the government, and he is enrolled in English as a second language courses.
24The respondent argues that the applicant’s injuries are minor and that there is no medical evidence of a chronic pain diagnosis from his family doctor, and nor was physiotherapy a referral from any doctor. Rather, the disability statement OCF-3 was completed by the physiotherapist who also reported the applicant’s injuries as soft tissue. The respondent further submits that the applicant was rear-ended at a speed of 10 km per hour, and he did not report any of the symptoms he alleges to suffer from directly after the subject accident.
25I am not convinced that the applicant suffers from chronic pain because of the accident. Approximately three days after the accident, the applicant complained of neck, back and shoulder pain to his family doctor, he was referred to Credit Valley Hospital on January 14, 2021, where an X-ray was conducted and found the applicant’s cervical spine to be intact and anatomically aligned with no evidence of a fracture, subluxation or prevertebral soft tissue swelling. The applicant’s family doctor did not recommend physiotherapy as a treatment option, and nor did any other doctor visited by the applicant, but rather the disability certificate OCF-3 was completed by Mohammad Zulfiqar (physiotherapist). Mr. Zulfiqar described the applicant’s injuries as sprains of the cervical spine, sprain/strain of lumbar spine and sprain/strain of the wrist and reported no change in the applicant’s daily living function. This is corroborated by the applicant’s own admission that he did not do much around the house pre- or post-accident and his family doctor opted to switch his pain medication for Tylenol. This evidence leads me to conclude that the applicant does not have a functional impairment as a result of the accident.
26The applicant further attributed his headaches to the subject accident; however, the only medical note in relation to headaches was from a self-report to his family doctor approximately four months after the accident from which the doctor opined that it could possibly be Covid-19 and referred the applicant for a Covid-19 test. The results of such test were not in the clinical notes and records referred to in the submissions. Given the weakness of the applicant’s medical evidence, I do not find that the applicant has a functional impairment or suffers from chronic pain because of the accident, and therefore the applicant is not removed from the MIG based on chronic pain.
The applicant is not removed from the MIG due to a pre-existing condition that precludes maximal recovery from any accident-related minor injury
27I find that the applicant has not demonstrated that he suffers from a pre-existing condition preventing his maximal recovery from any minor injury, that would warrant removal from the MIG.
28The applicant submits that, following the accident, an X-ray was performed that showed he mild degenerative disk disorder in his lower spine that is causing him pain in his back.
29The respondent argues that there is no medical evidence that the applicant had a pre-existing spinal injury that would warrant removal from the MIG.
30I agree with the respondent. The only diagnostic documentation that I was pointed to is an X-ray performed by Credit Valley Hospital five days after the accident whose results indicated the cervical vitrail bodies appear intact and anatomically aligned, there is no evidence of fracture, subluxation or prevertebral soft tissue swelling, and a mild degenerative disk disease at C5-C6. There is no medical evidence that persuades me to conclude that the applicant had a pre-existing back condition which would preclude his recovery under the MIG. Even if I accept that the degenerative disk condition pre-existed the accident, the applicant failed to provide evidence to persuade me that such condition would prevent his maximal recovery if he were kept within the MIG, as required by s. 18(2) of the Schedule. I therefore find that the applicant does not have a pre-existing medical condition that will preclude his recovery from any accident-related minor injury if he remains in the MIG.
The applicant is not removed from the MIG due to a psychological condition because of the accident.
31I find that the applicant does not suffer from an accident-related psychological. condition.
32The applicant testified that he suffers depression and insomnia, and that his psychological health is not the same as it was pre-accident. He further submits that he has been seeing a psychologist in Alberta where he currently resides to deal with this issue.
33The respondent submits that none of the family doctors’ records show any referral to a psychologist, nor do they identify any of the applicant’s self reported symptoms, and that further psychological treatment is not an issue in dispute for this application.
34I agree with the respondent. There is no medical evidence that the applicant suffers from a psychological impairment resulting from the subject accident. The applicant seems to have some gastrointestinal issues that appear to keep him up at night; however, the family doctors’ CNR’s recommendations to the applicant were to quit smoking, lose weight and avoid caffeine and alcohol. Therefore, on a balance of probabilities, I do not accept that he suffers a psychological impairment as a result of the subject accident.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no benefits overdue, interest does not apply.
Award
36The 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 applicant remains in the MIG, and as no benefits were unreasonably delayed or withheld, the respondent cannot be liable to pay an award.
ORDER
37The applicant remains in the MIG, is not entitled to the disputed treatment plans for physiotherapy, and is not entitled to interest or award.
Released: April 17, 2024
John Mazzilli
Adjudicator