Usama Shafik v. Intact Insurance Company, 2024 CanLII 43437

Citation: Shafik v. Intact Insurance Company, 2024 ONLAT 22-005465/AABS

Licence Appeal Tribunal File Number: 22-005465/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:

Usama Shafik

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Michelle Velvet, Counsel

For the Respondent: Nisaa Khan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Usama Shafik, the applicant, was involved in an automobile accident on October 4, 2019, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The 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?
2. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 11, 2019 to November 4, 2019?
3. Is the applicant entitled to $1,192.16 outstanding for physiotherapy treatment proposed by Roger Christian, submitted December 13, 2019 for $2,290.00 and partially approved December 27, 2019, for $1,097.84?
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

3The applicant has not established that his impairments arising from the accident fall outside the MIG. Since the MIG limits have been exhausted, he is not entitled to the balance of the OCF-18 in dispute. Further, he has not proven entitlement to an IRB for the time period claimed. Since I have determined that no benefits are overdue, he is not entitled to interest or an award.

PROCEDURAL ISSUES

4The respondent requested that the last five pages of the applicant’s submissions be struck because the Tribunal’s case conference report and order provided both parties with a maximum of 10 pages for written submissions and the appellant’s submissions were 15 pages. The respondent also requested that various documents relied upon by the applicant be excluded because despite having some of the records in the years and months leading up to the hearing they were first served on the respondent with his written submissions. The respondent submits that this is procedurally unfair and amounts to trial by ambush because it did not have the opportunity to have its assessors review these records prior to providing their opinions. The applicant made no submissions in response to the respondent’s request.

5The respondent’s request that I strike the last five pages of the applicant’s submissions is denied. Although the submissions did not comply with the Tribunal’s order, I find it unnecessary to exclude because as noted below they ultimately did not affect the result. Consequently, the respondent is not prejudiced by the admission of same. Likewise, I find it unnecessary to exclude the various evidence that was not previously served on the respondent because the applicant did not articulate the relevance of same in his submissions. As a result, the respondent is not prejudiced because I have given this evidence little weight.

ANALYSIS

The applicant’s accident-related impairments fit within the MIG

6Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”

7An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG.

8The applicant submits that he should be removed from the MIG because he has a pre-existing medical condition which prevents him from achieving maximum medical recovery within the MIG. Further, he suffers from chronic neck, shoulder, and back pain, as a result of the accident which has resulted in functional limitations. In support of his position, he relies on the clinical notes and records (“CNRs”) of Dr. Attia, his family doctor, diagnostic imaging, OHIP summaries, and the CNRs and insurance forms (OCF-18s), MIG treatment confirmation forms (“OCF-23s”) and disability certificates (“OCF-3s”) prepared by his treating clinics.

9The respondent argues that the applicant has not met his onus and that his accident-related impairments fall within the MIG. It relies on the insurer examination (“IE”) of Dr. Hosseini, physiatrist, which diagnosed the applicant with soft tissue injuries which fall within the MIG.

10I agree with the respondent for the following reasons.

11The applicant’s submissions fell short of meeting his onus in proving that he should be removed from the MIG because of chronic pain or a psychological impairment. Further, I find he has not provided compelling evidence of a pre-existing medical condition which would preclude recovery within the MIG. Overall, I find the applicant’s submissions difficult to comprehend as they consisted of descriptions of documents (along with page numbers of where the documents could be found in his brief), without articulating the relevance of the documents to the issues in dispute. He submitted numerous CNRs in their entirety where the bulk of the records were not relevant. For example, out of the hundreds of pages of his family doctor’s CNRs only a few were relevant or mentioned the accident. He also submitted all the CNRs of his treating clinics and even acknowledged in his submissions that the records were not legible. Further, his submissions quoted case law (which was not included with his document brief) and the legal test for removal from the MIG without explaining how his case meets the test.

12In contrast, the respondent provided a detailed analysis of the CNRs of the applicant’s family doctor and highlighted the fact that many of the records do not mention the accident at all. Moreover, there are significant gaps in time where the applicant does not report any accident-related impairment.

13In addition, I find the CNRs of the applicant’s treating clinics are not helpful because they are not legible. Further, the diagnostic imaging supports that the applicant has degenerative disc disease which the applicant did not link to the accident. The applicant also relies on the various insurance forms in support of his position that he suffers from chronic pain which has resulted in various functional limitations. I find the insurance forms insufficient evidence to prove that he suffers from chronic pain because of the accident which has resulted in the alleged functional limitations.

14The applicant also contends that he meets three out of the six criteria for chronic pain listed in the American Medical Association Guides, which has been used as a guide by this Tribunal in analyzing whether an insured suffers from chronic pain. The six criteria include: 1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs and other substances; 2. Excessive dependence on health care providers, spouse, or family; 3. Secondary physical deconditioning due to disuse and or avoidance of physical activity due to pain. 4. Withdrawal from social milieu, including work, recreation, or other social contracts. 5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and 6. Development of psychological sequelae after the initial incident, including anxiety, fear, avoidance, depression, or nonorganic illness behaviours. I note submissions are not evidence, and the applicant has not submitted adequate evidence to prove that he meets any of the above six criteria.

15The applicant’s submissions also refer to accident-related psychological symptoms that are listed on the various insurance forms by a chiropractor and physiotherapist. I find that the symptoms noted on these forms are based on the applicant’s self-reports and it is not within the scope of these practitioners to diagnose a psychological impairment. There is no evidence before me that the applicant has been diagnosed with any accident-related psychological impairment by a doctor qualified to render this diagnosis. For these reasons, I find the applicant has not established that he has an accident-related psychological impairment which warrants removal from the MIG.

16The applicant also relied on two OCF-23s completed by a physiotherapist and chiropractor in support of his position that his pre-existing condition of type II diabetes and hypertension warrant removal from the MIG. I give these OCF-23s little weight because the opinions of these practitioners are inconsistent with the post-accident CNRs of Dr. Wong and Dr. Cot, endocrinologists, who treated the applicant for type II diabetes. These CNRs indicate that the applicant was doing well, and the accident is not mentioned at all. In my view, these doctors would be in the best position to provide an opinion on whether the applicant’s diabetes was exacerbated by the accident or would prevent him from achieving maximum medical recovery within the MIG, which is the requirement for removal from the MIG under s. 18(2). However, no such opinion was provided. It is well established law that the existence of a pre-existing condition on its own is not enough for removal from the MIG. The applicant must provide compelling medical evidence that the pre-existing condition would preclude him from achieving maximum recovery within the MIG. I find that this has not been proven in this case.

17The only report before me was that of IE assessor Dr. Hosseini, physiatrist, who conducted a physical examination and diagnosed the applicant with soft tissue injuries, which I find fit within the MIG. I prefer the opinion of Dr. Hosseini over the applicant’s evidence because he has not submitted any reports or sufficient medical evidence to refute it.

18The applicant has not met his onus of proving on a balance of probabilities that he suffers from chronic pain or a psychological impairment as a result of the accident which would remove him from the MIG. Further, he has not provided compelling evidence of a pre-existing condition which would prevent him from achieving maximum medical recovery within the MIG. Since the MIG limits have been exhausted, he is not entitled to the balance of the OCF-18 for physiotherapy.

The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from October 11, 2019, to November 4, 2019

19Section 5(1)1 of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. At the post-104 mark, the applicant must prove he has a complete inability to engage in any employment for which he is suited by education, training, or experience.

20The applicant has not met his onus of establishing his entitlement to the benefit because other than the OCF-3s and OCF-23s, I was not directed to any medical opinion between October 11, 2019, and November 4, 2019 to support that he had a substantial inability to perform the essential tasks of his employment as a result of any accident-related impairment. It is well established that insurance forms on their own are insufficient evidence to prove entitlement to a benefit. The applicant’s submissions did not address what the essential tasks of his employment were and what accident-related impairment prevented him from carrying out these tasks during the time period claimed. Finally, the applicant referred me to the page numbers where his Uber employment file and income tax records could be found but did not explain how these records support that he sustained an income loss. It is not the role of the trier of fact to make the applicant’s case for him.

21In contrast, the respondent relies on the IE reports of Dr. Hosseini and functional abilities evaluation of Dr. Getsos, chiropractor. Based on the information in Dr. Hosseini’s report, the applicant was employed as an Uber driver prior to the accident and worked 40 hours per week. His job duties included driving clients to and from destinations and involved prolonged sitting and driving. The appellant reported to Dr. Getsos that he returned to work in January 2019 with modified hours ranging from 18-20 hour per week. The applicant reported that neck stiffness limits his ability to drive for extended periods of time, low back pain limits his ability to sit for more than two hours, and shoulder pain limits his ability to operate the steering wheel and lift items (such as suitcases) and load them into the trunk.

22Dr. Hosseini’s physical examination of the applicant supported soft tissue injuries, and the doctor determined that he did not have any impairments which would result in a substantial inability to carry out the essential tasks of his employment as an Uber driver. Moreover, Dr. Hosseini concluded that Dr. Getsos did not identify any functional limitations that would result in a substantial inability for the applicant to carry out the essential tasks of his employment. I accept the opinion of the IE assessors because the applicant has not presented any persuasive evidence to refute it.

23The applicant has not met his onus to prove on a balance of probabilities that he has a substantial inability to carry out his pre-accident employment tasks as a result of any accident-related impairment for the time period claimed. Nor has he proven that he sustained an income loss. The applicant also alleges that the respondent did not comply with its procedural obligations in responding to an OCF-3 pursuant to s. 36(4) of the Schedule, which I will address now.

The respondent did not breach its procedural obligations pursuant to s. 36(4) of the Schedule

24Section 36(4) of the Schedule supports that upon receipt of an OCF-3 from an insured applying for a specified benefit the insurer shall respond within 10 days advising the insured that it agrees to pay the specified benefit, or provide notice explaining the medical and any other reasons why the insurer does not believe the insured is entitled to the benefit and, if the insurer requires an examination under section 44 relating to the benefit, advise the insured of the requirement for an examination.

25Section 37(1)(a) of the Schedule supports that if an insurer wishes to determine if an insured is still entitled to a specified benefit, the insurer may, but not more often than is reasonably necessary, request that the insured person submit, within 15 business days, a new OCF-3 completed as of a date on or after the date of the request.

26The applicant submits that the respondent did not comply with its procedural obligations under the Schedule because it did not reply to the second OCF-3 submitted by the applicant on November 12, 2019, within 10 days pursuant to s. 36(4). As a result, the respondent must pay the benefit until it provided the applicant with notice of its decision. In response to the OCF-3, the respondent sent the applicant an Explanation of Benefits dated November 27, 2019, advising him that it did not request an updated OCF-3 because it had received one dated October 11, 2019 (a month prior), and as a result it was not payable.

27I find that s. 36(4) of the Schedule does not apply to the second OCF-3 submitted by the applicant because the applicant had already applied for the benefit when he submitted the first OCF-3 dated October 11, 2019. Further, the respondent did not request that the applicant submit an updated OCF-3 pursuant to s. 37(1) of the Schedule. Further, the applicant provided no explanation for why an updated OCF-3 was being submitted one month after the initial OCF-3 was submitted which already supported his entitlement to the benefit. I find the applicant’s submission of a second OCF-3 without an explanation unreasonable. As a result, I find that the respondent did not breach its procedural obligations pursuant to s. 36(4) of the Schedule.

The applicant is not entitled to payment of interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no payments are overdue, the applicant is not entitled to interest.

The applicant is not entitled to an award

29The 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 is not entitled to an award because there are no benefits payable on which to base an award.

ORDER

30For the above-noted reasons, I find the applicant has not established that his impairments arising from the accident fall outside the MIG. Since the MIG limits have been exhausted, he is not entitled to the balance of the OCF-18 in dispute. Further, he has not proven entitlement to an IRB for the time period claimed. Since I have determined that no benefits are overdue, he is not entitled to interest or an award.