Citation: Sada v. Unifund Assurance Company, 2024 ONLAT 21-004268/AABS

Licence Appeal Tribunal File Number: 21-004268/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:

Fadi Sada

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Sofia Ahmad

APPEARANCES:

For the Applicant:

Maziar Mortezaei, Counsel

For the Respondent:

Symone Marlowe, Counsel

HEARD:

By Way of Written Submission

OVERVIEW

1Fadi Sada, the applicant, was involved in an automobile accident on May 25, 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, Unifund, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The 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 limit? The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to attendant care benefits in the amounts of $560.88 per month from June 4, 2019 to date and ongoing?

iii. Is the applicant entitled to $3,640.94 for physiotherapy services, proposed by Health-Pro Wellness in a treatment plan /OCF-18 ("plan") dated October 28, 2019?

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

v. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

3Based on the evidence before me, I find:

i. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

ii. The applicant is not entitled to attendant care benefits in the amounts of $560.88 per month from June 4, 2019, to date and ongoing, as they are not reasonable or necessary.

iii. The applicant is not entitled to $3640.94 for physiotherapy benefits, proposed by Health-Pro Wellness as they are not reasonable or necessary.

iv. A s. 10 award and interest is not appropriate.

ANALYSIS

Applicability of the MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury 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". An insured may be removed from the MIG is 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 if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. The burden of proof lies with the applicant.

5The applicant submits that the following factors remove him from the MIG:

i. his pre-existing condition; and

ii. his chronic pain as a result of the accident.

6The respondent submits that the applicant has not met his burden to prove that he suffers from more than minor injuries, that he has a pre-existing condition or that he has developed chronic pain as a result of the accident.

Does the applicant suffer from a pre-existing condition?

7The applicant does not suffer from a pre-existing condition that would warrant him being removed from the MIG.

8The applicant has failed to demonstrate a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG, pursuant to s. 18(2).

9The applicant has submitted that he had a pre-existing condition with respect to his right shoulder, right elbow, and left elbow. Following the accident, the applicant claimed to be experiencing pain in his left shoulder, which was caused, or aggravated, by the accident.

10The applicant further submits that the independent examiner, Dr. Marchie, diagnosed the applicant with left shoulder injuries caused by the accident.

11Although the applicant is not claiming a psychological impairment, a section 44 assessment was completed by a Dr. Weiser on October 8, 2019. The respondent relies on the applicant's statement to Dr. Weiser that he sometimes still experiences left shoulder pain, but he has resumed all of his normal everyday activities.

12The respondent relies further on the report of Dr. Marchie dated December 19, 2019, which concluded, from a musculoskeletal perspective, that the applicant's accident-related injuries were soft tissue in nature and consistent with the MIG.

13The applicant has failed to demonstrate that any pre-existing injury or condition would prevent maximal recovery such that he should be removed from the MIG. The applicant provides information about pre-existing conditions related to the right arm, right and left elbows and the right shoulder, but then provides information about how the accident has impacted the left shoulder. There is no nexus provided by the applicant with regards to how the left shoulder injury, which was sustained in the accident, and any pre-existing condition. With respect to the left shoulder, Dr. Marchie opined the injury to be soft tissue in nature and consistent with the MIG. The applicant himself told the psychologist Dr. Weiser that he has resumed normal everyday activities.

14I agree with the respondent and find that the applicant does not have a pre-existing condition. The applicant has failed to show a nexus between any injury sustained in the accident with any pre-existing condition. Further, the applicant has failed to demonstrate how any such pre-existing injury or condition has prevented maximal recovery such that he should be removed from the MIG.

Does the applicant have chronic pain as a result of the accident?

15The applicant does not suffer from chronic pain that would warrant removal from the MIG.

16The Tribunal has accepted that one test for assessing chronic pain is whether the applicant has consistent pain with functional impairment as a result of the accident.

17The applicant submits that two years after the accident he is experiencing chronic pain, with his family physician, Dr. Hussain, diagnosing him with on-going pain and limitations to the left shoulder, elbow, and arm. Further, the applicant claims to have been prescribed medications for an extended period, specifically Baclofen (muscle relaxant), Naproxen (anti-inflammatory) and Advil (pain and anti-inflammatory).

18The applicant submits that the chronic pain has rendered him incapable of conducting his activities of daily living independently.

19The respondent submits that Dr. Marchie has diagnosed the injuries sustained by the applicant because of the accident as being soft tissue in nature and consistent with the MIG. A review of the OHIP summary for the applicant shows only two visits to a physician in the more than two-year period post accident. The respondent submits that had the applicant's injuries been more than soft tissue in nature, there would have been more visits to a physician.

20The respondent further submits that the applicant returned to full time work very shortly post accident. As part of a section 44 assessment of attendant care needs, a report was prepared by Margaret Ramsay dated August 13, 2020. In that report the applicant reported no longer experiencing any physical symptoms and no longer experiencing any pain, as well as having good mobility in his left shoulder. Further, having returned to work, the applicant stated that he was not having any difficulty performing his work.

21I find that the applicant does not suffer from chronic pain, such that he is functionally impaired to warrant removal from the MIG. The applicant has failed to show a functional impairment based on his return to work, and his reporting in the attendant care section 44 assessment that he is no longer experiencing pain, symptoms, nor having any injury related issues or difficulties at work, supports my finding.

22I agree with the respondent that the applicant does not have chronic pain as a result of the accident. Accordingly, he has failed to demonstrate that removal from the MIG is warranted and he is subject to the $3,500 limit for minor injuries.

Are the treatment plans reasonable and necessary?

23I have determined that the applicant has not demonstrated that removal from the MIG is warranted. As such, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.

Is the applicant entitled to attendant care benefits?

24I have determined that the applicant has not demonstrated that removal from the MIG is warranted. As such, an analysis of whether the applicant is entitled to attendant care benefits is not required.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The MIG limits have been exhausted and no benefits are payable, therefore no interest is payable under s. 51.

Award

26The 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.

27I find an award is not appropriate. No benefits are overdue, and the applicant has not demonstrated that his impairments warrant treatment beyond the MIG. In any event, I find no indication that the respondent unreasonably withheld or delayed the payment of benefits.

ORDER

28The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, the treatment plans in dispute are not reasonable and necessary, the applicant is not entitled to attendant care, no interest is payable, and a s. 10 award is not appropriate.

29The application is dismissed.