Afat v. Co-operators General Insurance Company, 2024 CanLII 94134

Citation: Afat v. Co-operators General Insurance Company, 2024 ONLAT 22-010550/AABS

Licence Appeal Tribunal File Number: 22-010550/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:

Ayoob Afat

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Carlos Ortiz, Paralegal

For the Respondent: Julianne Brimfield, Counsel

HEARD: By Way of Written Hearing

OVERVIEW

1Ayoob Afat, the Applicant, was involved in an automobile accident on August 14, 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 the Respondent, Co-operators General 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 (“MIG”) limit?

ii. Is the Applicant entitled to $997.50 for physiotherapy, proposed by Maple Care in a treatment plan/OCF-18 (“plan”) submitted on April 5, 2022, and denied on April 19, 2022?

iii. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant remains within the MIG, and as such, he is not entitled to the treatment plan, nor interest.

ANALYSIS

MIG

4I find that the Applicant has not proven on a balance of probabilities that he is suffering from pre-accident impairments that warrant removal from the MIG.

5Section 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.”

6An 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 condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The burden of proof lies with the applicant.

7The Applicant submits that he suffers from a pre-existing condition, that has been impacted by the subject accident, and would prevent maximal medical recovery if he were subject to the MIG limits.

8The Respondent submits that evidence does not support that the Applicant had a pre-existing condition that would prevent recovery within the MIG. The Respondent argues that even if a pre-existing condition is accepted, the Applicant has failed in proving the condition would prevent maximal recovery within the MIG limits.

The Applicant’s pre-existing condition does not warrant removal from the MIG

9I am not persuaded that the Applicant should be removed from the MIG based on a pre-existing condition.

10The presence of pre-existing conditions alone is not sufficient to remove the Applicant from the MIG. The Applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG.

11The Applicant argues that his pre-existing condition was impacted by the accident, as he now suffers from leg numbness which has persisted for over six months. He argues that the Respondent’s submissions are not supported by medical evidence. Moreover, the Applicant submits that family physician, Dr. Ali Al-Gharbawy, has opined that treatment beyond the MIG is necessary.

12The Respondent submits that the Applicant failed to provide any compelling medical evidence to prove that his injuries fall outside of the MIG. The Respondent further submits that the Applicant has not pointed to any reports that support the ‘subtle’ changes seen on medical imaging are causing a chronic back pain condition. Additionally, the Respondent argues that sporadic notes related to back pain do not prove the Applicant had an ongoing condition and there were no complaints of same between June 2020 and the subject accident.

13It is true that clinical notes and records (“CNRs”) of practitioner, Dr. Al-Gharbawy, document complaints of pre-accident back pain. The Applicant’s submissions reference: a pre-accident CNR, dated July 10, 2019, of Dr. Al-Gharbawy indicating a history of chronic back pain; medical imagining of the lumbar spine revealing ‘subtle degenerative changes of L5-S1’, dated July 15, 2019; and a referral for chronic back pain on or about August 7, 2019. Referred sports medicine specialist, Dr. Atif Kabir, subsequently opined “DDD L5/S1/T-spine osteophytes (mild) i.e. degenerative changes”, on September 24, 2019, although, he did not comment on chronic pain. On June 4, 2020, the Applicant complained of back pain, and Dr. Al-Gharbawy recommended Voltaren gel. The Applicant did not return to Dr. Al-Gharbawy with complaints of back pain until after the subject accident. I am doubtful with respect to whether there is sufficient medical evidence to support chronic back pain, but I am satisfied that the Applicant has suffered from some pre-existing back pain and DDD. However, this only satisfies the first part of the test. The Applicant must also provide compelling evidence that said pre-existing condition would preclude maximal recovery if kept within the MIG limits.

14I am not satisfied that the Applicant has met the second part of the test pursuant to s. 18(2) of the Schedule, as he has not directed me to a medical opinion or compelling medical evidence that his pre-existing condition would prevent maximal recovery within the MIG limits. While there appears to be documented evidence of a pre-existing condition, Dr. Al-Gharbawy’s CNRs are silent with respect to whether the Applicant’s pre-existing condition was worsened by the accident, and more importantly, whether this would prevent maximal medical recovery if he were to remain within the monetary limits of the MIG.

15The Applicant made his first accident-related complaints to Dr. Al-Gharbawy on August 23, 2021, however, there is no reference as to whether the accident aggravated his pre-existing condition. Despite the Applicant continuing to meet with Dr. Al-Gharbawy for various reasons between the August 23, 2021, and April 2, 2022, I am not pointed to any medical evidence, expert opinion, or reference within these CNRs that his accident-related recovery would be impeded upon by his pre-existing condition. In fact, there is no reference to the Applicant’s pre-existing complaints of back pain during this time.

16On review of the CNRs of Prime Physio, the second to last entry, dated January 27, 2022, reports that the Applicant is feeling less lower back pain, but still has some neck and back pain. The last entry, dated February 3, 2022, reported no changes. However, on April 2, 2022, the Applicant reported to Dr. Al-Gharbawy that his back and elbow pain ‘feels better’. No further recommendation for physical therapy was made by Dr. Al-Gharbawy at this time and the Applicant was advised to follow up as needed.

17The next time the Applicant appears to have returned to Dr. Al-Gharbawy is over a year later, on June 26, 2023. He complained of back pain and right leg numbness. Dr. Al-Gharbawy reported ‘no trauma’. X-Ray of the lumbar spine and right hip revealed “DDD at L3-4, developed since the previous radiographs.” On July 8, 2023, the Applicant returns to Dr. Al-Gharbawy and complains of back pain. Again, Dr. Al-Gharbawy reported ‘no trauma’ and, this time, recommended physiotherapy. There is no indication that this complaint is in relation the subject accident. The Applicant did not make any follow-up with Dr. Al-Gharbawy between April 2, 2022, and June 26, 2023, and the Applicant has not pointed me to any other medical evidence that report complaints of accident-related impairments during this time. Once again, I am neither pointed to a reference or suggestion by Dr. Al-Gharbawy that the subject accident has impacted the Applicant’s pre-existing back pain or DDD, nor that said pre-existing back pain or DDD would hinder his recovery.

18As such, I give significant weight to the gap in attendance with Dr. Al-Gharbawy, as no accident-related or pre-existing complaints are made for well over a year. More importantly, despite a follow up in June and recommendation of physiotherapy in July of 2023, neither visit indicated a delay in recovery, nor that the 2023 onset of back pain, was as a result of the subject accident.

19Moreover, the Applicant refers to an undated CNR from Prime Physio, which appears to discuss consent for a continued treatment plan. By review of these CNRS, it appears to be from an entry dated November 8, 2021. I am unclear in what way the Applicant is relying on this evidence, as the following entry, dated November 15, 2021, suggests said treatment plan was approved. The Applicant thereafter continues to receive treatment. Nevertheless, I do not find that these CNRs help establish that the Applicant would be prevented from maximum medical recovery. I am not pointed to any other opinion of a treating practitioner at Prime Physio suggesting a continuance of treatment outside of the MIG limits.

20Next, the Applicant argues in his reply submissions that, “when one has underlying degenerative changes, any sudden extreme movement of the neck, particularly hyperextension, can lead to recurring symptoms.” It is well established that submissions are not evidence. The Applicant has failed to point me to any expert opinion or evidence that would corroborate same. In any event, there is insufficient medical evidence to opine on the alleged impact of the Applicant’s pre-existing back pain and DDD.

21Lastly, little turns on the Applicant’s position that the Respondent has not provided any contradictory medical evidence. The onus is on the Applicant to prove entitlement to benefits, on a balance of probabilities, not on the Respondent to disprove entitlement. Once again, I acknowledge the documented complaints of the pre-existing back pain and DDD. However, the Applicant has failed to direct me to any compelling medical evidence that his pre-existing back pain and DDD would prevent maximal medical recovery if kept within the MIG limits.

22As such, the Applicant has not proven, on a balance of probabilities, that his pre-existing condition would prevent maximal medical recovery from his accident-related injuries if he was kept within the MIG limits.

23As I have found the Applicant to remain within the MIG, I find that it is not required to review the treatment plan in dispute to determine if it is reasonable and necessary.

The Applicant is not entitled to interest pursuant to s. 51 of the Schedule

24As there are no overdue payment of benefits, the Applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

25For the reasons outlined above, I find that:

i. The Applicant has not met his burden on proving on a balance of probabilities that his pre-accident condition warrants removal from the MIG;

ii. The Applicant is not entitled to the April 5, 2022, OCF-18 for physiotherapy treatment, nor is he entitled to interest.

iii. The application is dismissed.