Licence Appeal Tribunal File Number: 21-009143/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 Noor
Applicant
and
Jevco Insurance
Respondent
DECISION
ADJUDICATOR:
Edward Langley
APPEARANCES:
For the Applicant:
Haley Brittain, Counsel
For the Respondent:
Adam O'Brodovich, Counsel
HEARD: In Writing
November 13, 2023
OVERVIEW
1Muhammad Noor, the applicant, was involved in an automobile accident on January 1, 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, Jevco Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The respondent raised a preliminary issue in reference to issue iii ($2,200.00 for psychological services) below. The respondent states that the applicant was required to attend an examination (or examinations) under s. 44 of the Schedule and denies the applicant has made himself available for insurer examinations (“IE”). The respondent submits the applicant is not entitled to the benefits claimed and he is precluded from advancing with the claim, pursuant to s. 55(2) of the Schedule.
ISSUES
3The 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?
ii. Is the applicant entitled to $3,279.64 for chiropractic services proposed by Jerome Wong in a treatment plan/OCF-18 (“plan”) submitted July 8, 2020 and denied July 13, 2020?
iii. Is the applicant entitled to $2,200.00 for psychological services proposed by Fahimeh Aghamohseni in a treatment plan submitted September 9, 2020 and denied September 28, 2020?
iv. Is the applicant entitled to $2,200.00 for chiropractic services proposed by Jerome Wong in a treatment plan submitted September 2, 2020 and denied September 28, 2020?
v. Is the applicant entitled to $3,279.64 for chiropractic services proposed by Jerome Wong in a treatment plan submitted July 8, 2020 and denied October 6, 2020?
vi. Is the applicant entitled to $2,200.00 for medical/rehabilitation services proposed by Jerome in a treatment plan submitted September 2, 2020 and denied October 29, 2020?
vii. 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?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Based on the totality of the evidence before me, I find the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The applicant is not entitled to any of the benefits in dispute because they propose treatments outside of the MIG. The applicant is entitled to whatever amount, if any, remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits that have already been incurred under the MIG are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule. In accordance with s. 51 of the Schedule, interest applies to the payment of any overdue benefits. The applicant is not entitled to an award.
PROCEDURAL ISSUES
5As I find that the applicant has not met his burden to be removed from the MIG and is therefore not entitled to any benefits in dispute that would be outside of the $3,500 MIG limit, I dismiss the preliminary issue as moot.
ANALYSIS
The applicant remains within the Minor Injury Guideline (MIG)
6I find that the applicant has not met his burden of proof and demonstrated that his accident-related impairments warrant removal from the MIG.
7Section 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 clinical associated sequelae to such an injury”.
8Even if the applicant’s injuries fall within the definition of minor injury, he can still be taken out of the MIG if they can establish that his accident-related injuries fall outside of the MIG, or, in accordance with s. 18(2) of the Schedule, that he has 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 he is kept within the confines of the MIG. He must meet all three of the following requirements to be removed from the MIG under this section:
a. have a pre-existing medical condition;
b. the pre-existing medical condition was documented by a health practitioner before the accident; and
c. the person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit under the MIG.
The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from MIG. In all cases, the burden of proof lies with the applicant.
9The applicant claims that due to injuries suffered as a result of the accident, including physical and psychological injuries, he should be removed from the MIG. However, for the reasons that follow, I am not persuaded that there is compelling evidence presented by the applicant to justify removal from the MIG.
The applicant did not suffer non-minor physical injuries as a result of the accident.
10The applicant’s own evidence confirms that the applicant was driving a vehicle while employed by Uber, and was experiencing “no numbness or weakness in the legs. The applicant’s imaging and MRIs post-accident were unremarkable. Cervical range of motion was within normal limits. The injuries and treatment plans that have been provided to the applicant are consistent with the injuries suffered.
11The applicant submits as evidence a clinical note from Dr. El-Kateb, the applicant’s family doctor, which confirms that the applicant was diagnosed with lower back pain. The date of this diagnosis is 1 year post motor vehicle accident. The family doctor prescribed the pain medication Naproxen, a multi-use pain relieving medicine. On November 30, 2021, Dr. El-Kateb recommended Tylenol. This evidence does not support any claim by the applicant that there were any long-term pain concerns beyond pain maintenance.
12On January 6, 2020 (five days post accident), the applicant underwent an assessment at Lifemark Physiotherapy. The applicant complained of neck and back pain. The assessing physiotherapist, Gillian Young, recommended physiotherapy treatment and massage therapy. For the period of August 17, 2020 to September 29, 2021, the applicant underwent physiotherapy, massage therapy, and chiropractic treatment.
13In an Independent Examination (IE) completed by Dr. Riaz Moolla on September 30, 2020, the doctor concluded that the applicant suffered uncomplicated soft tissue strain injuries which are considered minor injuries per the MIG. He further opined that the treatment plans submitted were not reasonable and necessary. The findings of Dr. Moolla with respect to the thconclusion that the applicant is not eligible to be removed from the MIG. Therefore, I put significant weight on the findings of this IE and the opinion of Dr. Moolla.
14The physiotherapy, massage therapy and chiropractic treatments are consistent with an individual who is designated to be placed in the MIG. The funding for these treatments were not approved by the insurer, which would be consistent given that the applicant is placed in the MIG.
15On September 9, 2021, Dr. El-Kateb noted that the applicant was experiencing chronic upper and lower back pain, but did not recommend a chronic treatment plan or further assessment. Although Dr. El-Kateb may have noted such pain overall, the family doctor’s records are consistent with Dr. Moolla, who opined that the applicant’s injuries are minor. On September 15, 2021, chiropractor Dr. Wong noted the applicant was experiencing headaches, back pain, anxiety and nightmares - the latter two of which would fall outside the expertise of a chiropractor’s practice and therefore give no weight to the diagnosis. On November 30, 2021, the applicant’s family doctor reported that the applicant was still experiencing lower back pain (no mention of upper back pain), and recommended physiotherapy. The family doctor did not recommend a chronic pain treatment plan or further assessment. These findings are consistent with the findings of the IE assessor who recommended treatment within the MIG.
The applicant did not suffer chronic pain as a result of the accident
16In reference to a paper review of Dr. Moolla dated October 16, 2020, the functional and physical limitations complained by the applicant inconsistent with what would be anticipated given the functional and physical limitation observed in the assessment of September 2020. The applicant did not report prolonged use or dependence on prescription drugs for chronic pain. He does not report dependence on others or family members, nor does he exhibit secondary clinical deconditioning. The applicant does not report any withdrawal from social, recreational or work activities. There does not appear to be any reported injuries as a result of the subject motor vehicle accident that would warrant a chronic pain treatment plan. The reporting of chiropractor Dr. Wong supports this finding, as there was no chronic pain treatment plan or further assessment ordered. Therefore, I lend more weight to the findings of Dr. Moolla.
The applicant did not sustain psychological injuries as a result of the accident
17On September 4, 2020, psychologist Dr. Aghamohseni stated that the applicant presented himself as an individual in need of psychological assistance. The psychologist further states that based on a brief interview with the applicant, his injuries/ symptoms fall outside of the MIG. Further, there is a diagnosis from Dr. Wong, chiropractor, that indicates the applicant has noted anxiety and nightmares. I give no weight to this diagnosis from Dr. Wong, as it is outside the scope of Dr Wong’s area of expertise. I am also not compelled by Dr. Aghamoseni’s evidence, as it is based on what is stated as a “brief interview” with the applicant, and there is no scheduled treatment of a follow-up for someone “in need of” psychological assistance. There is not enough evidence to convince me that the applicant should be removed from the MIG.
18For all the above reasons, and given the evidence, the applicant has not satisfied his burden of proving that he should be removed from the MIG.
The applicant is not entitled to any of the treatment plans in dispute
19Given my finding that the applicant is not removed from the MIG, it follows that he is not entitled to any of the treatment plans is dispute as they propose benefits outside the MIG.
Award
20As the applicant has not provided any evidence to suggest that an award is payable, the respondent cannot be liable to pay an award under s. 10 of Reg. 664.
ORDER
21I find that:
a. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.
b. The applicant is not entitled to any of the benefits in dispute.
c. The applicant is not entitled to an award under s. 10 of Reg. 664.
d. The applicant is entitled to whatever amount, if any, remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits that have already been incurred under the MIG 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.
22The application is dismissed.
Released: September 3, 2024
Edward Langley
Adjudicator