Saleem v. Intact Insurance Company, 2024 CanLII 77435

Citation: Saleem v. Intact Insurance Company, 2024 ONLAT 22-005693/AABS

Licence Appeal Tribunal File Number: 22-005693/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:

Muhammad Saleem

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: Linda Spurrell, Paralegal

For the Respondent: Christine Haddad, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Muhammad Saleem, the applicant, was involved in an automobile accident on February 27, 2020, 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:

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?

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from February 6, 2021 to October 1, 2021?

iii. Is the applicant entitled to $2,230.58 for chiropractic services, proposed by Progressive Rehab in a treatment plan/OCF-18 ("plan") submitted September 17, 2020 and denied September 25, 2020?

iv. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Paramount Assessments Ltd. in plan submitted February 21, 2021 and denied March 1, 2021?

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

RESULT

3The applicant failed to prove that his injuries are not minor and could not be treated within the Minor Injury Guideline ("MIG") limits.

4The applicant has not proven that he satisfies the criteria for entitlement to any further income replacement benefit ("IRB").

5Since the applicant's injuries are considered minor, as defined by the Schedule, the proposed treatments outside of the MIG are not reasonable and necessary.

6Since no benefits are payable, no interest is payable.

PROCEDURAL ISSUES

7The respondent submits that the applicant did not comply with the submission deadline and that the appeal should be dismissed. The applicant's submissions were due on November 8, 2023 and were submitted on November 9, 2023. I note that the applicant's submissions were filed one day after the due date, but I find that the respondent was not sufficiently prejudiced by the one-day delay to warrant a dismissal. Under Rule 3.1, to facilitate a fair, open and accessible adjudication of this matter, I allow the applicant's submissions.

ANALYSIS

The Minor Injury Guideline

8Section 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. 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."

9An 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 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.

10The applicant submits that, as a result of the accident, he should be removed from the MIG on the following grounds:

i. His musculoskeletal injuries are not "minor injuries" as defined under s. 3(1) of the Schedule;

ii. He suffers from a chronic pain condition with functional impairment that warrants removal from the MIG.

11I note that the applicant withdrew the plan for a psychological assessment in issue (iv) above. The applicant did not make submissions that the applicant suffered psychological injuries warranting removal from the MIG.

The applicant's musculoskeletal injuries do not place him outside of the MIG

12The applicant did not provide objective medical evidence that his musculoskeletal injuries are not "minor injuries" as defined by the Schedule.

13The applicant submits that he suffered back injuries that would place him outside of the MIG. These include an old, healed fracture sacrum with retrolisthesis of the C1 segment on the S5 segment of his lower spine, subtle local left posterolateral disc protrusion at L5-S1, and subtle focal annular tears posteriorly in the midline at L4-S1. In support of these submissions, the applicant provided the clinical notes and records ("CNRs") of the applicant's family physician, Dr. Bahauddin Danial, who referred the applicant for an x-ray on May 29, 2020 and for an MRI on October 12, 2022. Dr. Danial assessed the applicant over a period of over two years starting on May 29, 2020.

14The applicant submits further that the applicant was assessed by Dr. Sanja Paleskic, specialist in physical medicine and rehabilitation, on March 1, 2023, who diagnosed the applicant's back injuries as coccygodynia (tailbone pain).

15The respondent submits that the applicant's back injuries would be classified as "minor" as defined by the Schedule. The respondent submits that Dr. Danial did not attribute the applicant's old, healed fracture sacrum to the accident.

16The respondent submits that the first MRI of the applicant's back was referred on October 12, 2022, more than 2.5 years post-accident. The applicant submits that the MRI revealed multilevel degenerative disc disease ("DDD") and that Dr. Danial does not attribute the DDD to the accident.

17The respondent submits that the CNRs of Dr. Paleskic are inconsistent with those of Dr. Danial, in that the applicant reported to Dr. Paleskic that his lower back pain was most prominent with sitting, whereas he reported to Dr. Danial that his lower back pain was better with sitting. In addition, the respondent submits that the CNRs of Dr. Paleskic indicate that the applicant's DDD was very mild.

18The respondent relies on the insurer's examination ("IE") of Dr. Todd Walters, general practitioner, in his report dated November 17, 2020, as well as on his addendum report dated March 14, 2022. The respondent submits that the applicant's injuries were consistent with WAD-II strain and lumbosacral strain, and that he was not able to identify an objective, reproducible musculoskeletal impairment. Dr. Walters concluded in both his initial IE report and in his addendum report that the applicant's injuries could be treated within the MIG.

19I find the conclusions of Dr. Walters persuasive in that they are consistent with the CNRs of both Dr. Danial and Dr. Paleskic. The applicant has not put forward evidence that his injuries are more severe than strains, sprains and/or contusions. I find that the applicant's injuries fit the definition of "minor injuries".

20I find that the applicant failed to provide objective, corroborating medical evidence that the applicant's musculoskeletal injuries are not minor as defined by the Schedule.

21For these reasons, I find on a balance of probabilities that the applicant did not suffer accident-related musculoskeletal injuries that are not "minor injuries" as defined by the Schedule.

The applicant has not established chronic pain with functional impairment

22As stated previously, the Tribunal has determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

23The applicant submits that he was diagnosed with chronic low back pain by Dr. Danial on December 1, 2021, about 21 months post-accident. The applicant submits that this diagnosis was maintained by Dr. Danial on November 21, 2022, about 32 months post-accident. The applicant submits that the applicant's ongoing complaints of lower back pain, and Dr. Danial's ongoing recommendations for physiotherapy and massage therapy, are evidence of the applicant's chronic pain condition. The applicant argues that this chronic pain warrants removing him from the confines of the MIG.

24The applicant submits that he was prescribed prescription pain medication including Elavil.

25The applicant submits further that despite the respondent's denial of the treatment plan for physiotherapy and massage therapy, on the referral of Dr. Danial, the applicant paid for treatments with Progressive Rehab Clinic out-of-pocket. This resulted in the applicant having an outstanding account with the clinic. The applicant submits that the denial of the treatment plan has prolonged his pain and postponed his recovery, which risks increasing his future medical and rehabilitation needs.

26The applicant cites 17-002624 v Aviva Insurance Canada (CanLII 131983 ON LAT) that affirms prolonged passive treatments can be found to be grounds for removal from the MIG if the treatments remove pain and improve an injured person's level of function.

27The respondent submits that the applicant visited Dr. Danial only twice in 2021 with complaints of lower back pain. The respondent also submits that Dr. Paleskic reported that the applicant had no difficulty with walking and no radiation of pain. The respondent submits that Dr. Paleskic recommended activation exercises and advised the applicant to return to the gym to work on weight loss, and that she did not diagnose the applicant with chronic lower back pain.

28The respondent submits that the applicant did not provide any prescription summaries as ordered in the Case Conference Report and Order of March 8, 2023, and asks the Tribunal to draw an adverse inference from this omission.

29At the time of the accident, the applicant was employed as a ride share driver with Uber Canada Inc. ("Uber"). The respondent submits that the applicant did not produce work records from Uber, as ordered in the CCRO, that would support the applicant's claim of a functional impairment. The respondent asks the Tribunal to draw an adverse inference from this failure to produce his work records. In his reply submissions, the applicant states that the Uber records were served on the respondent although they were not included in the applicant's original submissions because they were not being relied upon.

30The respondent argues that the applicant's submissions do not address the six criteria described in the American Medical Association's (AMA) Guides for evaluating chronic pain claims (see, for example, the Tribunal's analysis in 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 ON LAT). The AMA Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. 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.

vi. Development of psychosocial sequelae after the initial incident, include anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

31The respondent argues none of the six criteria have been met for a chronic pain diagnosis.

32I am persuaded by the respondent's arguments that the applicant has not demonstrated that he meets the criteria for a chronic pain diagnosis described in the AMA Guides. I find that the applicant failed to provide objective, corroborating medical evidence that would indicate that the applicant suffered from a chronic pain condition that would prevent maximal medical recovery if treated within the MIG limits, as required by s. 18(2).

33I draw an adverse inference from the applicant's failure to produce prescription summaries as ordered in the CCRO. I find that this omission indicates that the applicant does not meet criterion (i) of the AMA Guides for evaluating chronic pain.

34Moreover, I find that the applicant has not demonstrated functional impairment that, combined the complaints of chronic pain, would warrant removal from the MIG. I do not draw an adverse inference from the applicant's failure to produce his Uber work records as ordered in the CCRO, since the applicant states they were produced as ordered. However, I find that the applicant has not demonstrated objective evidence of functional impairment in his work or other environments.

35For these reasons, I find that the applicant has not suffered from a chronic pain condition that warrants treatment outside of the MIG.

The applicant is not eligible for any further income replacement benefits

36To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

37As stated previously, at the time of the accident, the applicant was employed as a driver with Uber. The applicant submitted a Disability Certificate/OCF-3 on March 2, 2020 and an Application for Accident Benefits/OCF-1 on April 1, 2020 and was paid an IRB of $400.00 per week from March 5, 2020 to February 5, 2021. Following the IE of Dr. Walters on November 17, 2020 as well as a Functional Abilities Evaluation ("FAE") of Mr. Vincent Yip, physiotherapist, of January 13, 2021, the applicant's IRB was stopped on February 5, 2021. The applicant seeks a continuation of his IRB from February 6, 2021 until October 1, 2021.

38The applicant submits that he was unable to work as an Uber driver at the time his IRB was stopped. The applicant submits that his worked involved driving his vehicle eight to ten hours per day and, on occasion, helping customers with their luggage or packages. The applicant points to the CNRs of Dr. Danial, dated February 23, 2021, where he advises the applicant to avoid heavy lifting and excessive bending. The applicant submits that after an attempted return to work, post-IRB-stoppage, he was unable to sit for more than two hours due to his back pain. The applicant argues that the FAE conducted by Mr. Yip is deficient in that he was only able to comment on the applicant's sitting tolerance based on the time spent with the applicant, which was 1 hour and 35 minutes, during which there were standing portions of the testing. The applicant submits that his back pain, due to extended sitting combined with occasional bending and lifting, prevented him from returning to his job until October 1, 2021.

39The respondent submits that the applicant has not provided compelling medical evidence to demonstrate that he is entitled to further IRBs beyond those already paid. The respondent submits that the applicant has not provided evidence on the frequency of lifting luggage or packages, their weight or whether it was an essential task of his employment.

40The respondent requested a Hypothetical Job Site Analysis, conducted by Mr. Deny Brulotte, kinesiologist, on August 11, 2020. The respondent submits, based on Mr. Brulotte's report, that the applicant's job as an Uber driver was self-paced with modified hours available, and that Uber driving could be classified at lower physical demands depending on whether the driver assisted customers with luggage.

41The respondent submits that in Mr. Yip's FAE report dated January 13, 2021, the assessor was unable to determine the applicant's true functional limitations due to self-limiting behaviours. The respondent submits that the applicant demonstrated functional mobility in his neck, shoulders, upper extremities, lower back and lower extremities, and that the applicant demonstrated abilities within the Light Physical Demands Characteristic Level.

42The respondent submits that the IE report of Dr. Walters, dated November 27, 2020, concludes that the applicant did not suffer, at that time, an impairment that resulted in job tasks that he was unable to perform, and therefore the applicant did not meet the substantial inability test required by s. 5(1) of the Schedule to be eligible for further IRBs.

43The respondent argues that the CNRs of the applicant's family physician, Dr. Danial, do not mention that the applicant cannot complete the essential tasks of his employment. The respondent argues that the general note to avoid heavy lifting/excessive bending does not support the applicant's position of not working at all, given that these are only occasional tasks of his employment.

44I find that the applicant has not provided compelling medical evidence that he was unable to perform the tasks of his pre-accident employment at the time his IRB was stopped. I find that the applicant has not provided specific instances of the bending and lifting tasks he states he was unable to perform, including the weight and frequency. I find also he has not provided evidence of the continual sitting that he says was a requirement of his employment. I find as well that the applicant's claim of continuous sitting is inconsistent with the self-paced nature of Uber driving, with modified hours available, as described in Mr. Brulotte's Job Site Analysis report.

45I find that the medical evidence provided by the applicant does not meet the burden of proving entitlement to further IRBs.

46For the reasons above, I find on a balance of probabilities that the applicant has not met the burden of proving that he suffered a substantial inability to perform the essential tasks of his pre-accident employment and he is not entitled to any IRBs beyond those already paid.

The applicant is not entitled to the funding for the proposed treatment plans

47To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

48On each of the OCF-18s in dispute, the applicant indicated that his impairments are not minor and sought treatment outside of the MIG.

49Since I have determined that the applicant's injuries are "minor" as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary and are therefore not payable.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is payable.

ORDER

51The applicant has not demonstrated that his injuries warrant removal from the Minor Injury Guideline.

52The applicant is not entitled to further IRBs.

53The proposed treatment plans are not payable since they propose treatment outside of the Minor Injury Guideline.

54Since no treatment plans are payable, no interest is payable.