Osagie Igbinobaro v. The Dominion of Canada General Insurance Company (Travelers), 2024 CanLII 94147

Citation: Igbinobaro v. Dominion of Canada General Insurance Company (Travelers), 2024 ONLAT 21-010229/AABS

Licence Appeal Tribunal File Number: 21-010229/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:

Osagie Igbinobaro

Applicant

and

The Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Alim Ramji, Counsel

For the Respondent: Jeffrey Wong, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Osagie Igbinobaro, the applicant, was involved in an automobile accident on August 31, 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, The Dominion of Canada General Insurance Company (Travelers) 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? Note: The remaining amount of the MIG limit was identified as $86.68.

ii. Is the applicant entitled to an income replacement benefit in the amount of $253.06 per week from September 7, 2020 to December 31, 2020?

iii. Is the applicant entitled to $1,803.73 for physiotherapy services, proposed by Complete Rehab Center in a treatment plan/OCF-18 (“plan”) submitted February 11, 2021, denied on February 23, 2021?

iv. Is the applicant entitled to $197.69 (balance of partially approved amount) for physiotherapy services, proposed by Complete Rehab Center in a plan submitted December 21, 2020, denied on December 31, 2020?

v. Is the applicant entitled to $1,618.37 for physiotherapy services, proposed by Complete Rehab Center in a plan submitted April 12, 2021, denied on April 21, 2021?

vi. Is the applicant entitled to $1,415.31 for physiotherapy services, proposed by Complete Rehab Center in a plan submitted May 18, 2021, denied on May 31, 2021?

vii. Is the applicant entitled to $2,460.00 for an independent orthopaedic assessment, proposed by Complete Rehab Centre in a plan submitted March 27, 2021, denied April 6, 2021?

viii. Is the applicant entitled to $2,460.00 for an independent psychological assessment, proposed by Complete Rehab Centre in a plan submitted March 18, 2021, denied March 26, 2021?

ix. Is the applicant entitled to costs in the amount of $2,819.35 for an income report by Great Oak, submitted October 23, 2020, denied on November 18, 2020?

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

3In the respondent’s submissions, the parties agreed by email correspondence dated September 5, 2023 that issue (ix) above is no longer in dispute.

RESULT

4The applicant has not demonstrated that removal from the MIG is warranted. The medical evidence does not establish that his accident-related injuries fall outside the MIG. It is not necessary to consider whether the plans for physiotherapy services, orthopaedic and psychological assessments are reasonable and necessary. As a result, there is no entitlement to interest.

5I find that the applicant is not entitled to an income replacement benefit in the amount of $253.06 for the period from September 7, 2020 to December 31, 2020.

6The application is dismissed.

ANALYSIS

The applicant has not demonstrated that he suffers from accident-related injuries that 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 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 if they can establish that their accident-related injuries fall outside of the MIG. In all cases, the burden of proof lies with the applicant.

8The applicant submits that he should be removed from the MIG based on the following accident-related injuries:

a. his diagnosis of chronic pain, and;

b. his psychological impairments.

9To this end, the applicant relies on his Disability Certificate (OCF-3), the reports of Dr. Betty Kershner, psychologist and Dr. Duong Nguyen, orthopaedic surgeon, various clinical notes of family physician, Dr. Maher Atalla and treatment records from Complete Rehab Centre. The applicant relies on the OCF-3 dated September 1, 2020 completed by Dr. Rahim Jessa, chiropractor, which indicates he suffers from sprain and strain of the neck, back, shoulder and hip, sleep disorder, headache and stress.

10In response, the respondent submits that the applicant’s injuries are soft tissue injuries and fall within the definition of minor injury under the Schedule. The respondent relies on the clinical notes of the family physician and the Insurer’s Examination (“IE”) reports of Dr. Saad Naaman, physiatrist and Cheryl Miller, psychological associate.

The applicant has not met his burden of establishing chronic pain to warrant removal from the MIG

11The applicant submits that he was diagnosed with a chronic pain as a result of the accident. The applicant relies on the report of Dr. Nguyen dated April 19, 2021, in finding a diagnosis of chronic pain syndrome based on the applicant’s loss of earning capacity and inability to perform activities of daily living, including housekeeping, social and recreational activities. Subsequent to Dr. Nguyen’s report, Dr. Atalla indicates in July 2021 that the applicant might need a pain clinic. However, there is no indication that Dr. Atalla referred the applicant to a pain clinic or that the applicant received treatment from a pain clinic.

12In contrast, the respondent relies on s. 44 physiatry reports dated November 11, 2020, May 17, 2021 and December 6, 2021 of Dr. Saad Naaman who found the applicant sustained uncomplicated soft tissue injuries with full range of motion of the cervical spine and reduced flexion of the lumbar spine. Dr. Naaman concluded there are no objective findings in support of a non-minor injury. The respondent submits that the applicant has infrequently attended his doctor for accident-related complaints. The respondent further submits there is no evidence that the applicant attended a chronic pain program and he ceased filling prescriptions after February 10, 2021. The respondent further argues that Dr. Atalla’s records do not mention any functional limitations.

13The applicant submits that he meets 3 of the 6 criteria under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (“Guides”) because he missed 4 months of work, he has not returned to recreational activities including soccer, exercise and the gym or housekeeping tasks and he has anxiety and depression. The evidence that the applicant meets these criteria is based on his self-reporting, which I find contradictory and therefore, are not persuasive. There are no documented functional restrictions in the records of Dr. Atalla.

14The applicant submits that he meets the definition of chronic pain with functional limitations since he was off work as a social worker for 4 months after the accident. However, the applicant has provided contradictory accounts of his return to work to assessors. In Dr. Naaman’s reports dated November 11, 2020 and December 6, 2021, the applicant reported that he had gradually returned to work after 4 weeks, then he resumed regular duties 2 months later, or by November 30, 2020. Dr. Kershner indicates in report dated March 30, 2021 that the applicant reported he is working at reduced hours. In report dated April 19, 2021, Dr. Nguyen indicates the applicant reported that he is not working, and his activities of daily living are decreased due to his symptoms.

15The applicant has provided contradictory evidence regarding his functional limitations under the Guides. It is unclear which, if any housekeeping tasks the applicant was responsible for before the accident that he is unable to perform after the accident. The applicant has made contradictory reports to assessors regarding his role in housekeeping activities before the accident. For example, he advised Dr. Kershner that he assisted his wife in cooking, cleaning and laundry before the accident. He later advised Dr. Naaman that his wife did all the cooking, shopping and laundry before the accident.

16I find the applicant that has not met his burden of proving on a balance of probabilities that he suffers from accident-related chronic pain to warrant removal from the MIG.

The applicant has not met his burden of establishing an accident-related psychological impairment to warrant removal from the MIG

17The applicant submits that he should be removed from the MIG on account of his psychological impairments. The applicant relies on Dr. Kershner’s report dated March 30, 2021, in finding the applicant has emotional problems associated with his change in lifestyle after the accident. Dr. Kershner points out that the applicant has not returned to exercising, playing soccer or assisting his wife with housekeeping tasks. Dr. Kershner further indicates the applicant has returned to driving with caution. Although, Dr. Kershner diagnosed the applicant with adjustment disorder, specific phobia and somatic symptom disorder, there is no diagnosis of an accident-related psychological condition by Dr. Atalla or Ms. Miller.

18The respondent relies on a s. 44 psychological report dated May 5, 2021 by Cheryl Miller in finding that the applicant has not suffered a psychological impairment as a result of the accident, and the applicant did not articulate a need for psychological treatment and he stated that he is able to cope. The respondent submits that the applicant did not report any psychological symptoms to his treating physician, Dr. Atalla. In addition, Dr. Atalla has not diagnosed any psychological condition as a result of the accident. The applicant has not been referred to any specialists.

19I prefer the report of Ms. Miller since the assessment was in person and her opinion is based on documentation and the interview with the applicant. The assessment by Dr. Kershner was virtual with the applicant in his car. Dr. Kershner notes the applicant avoids traveling in a vehicle and he has returned to part-time work. There is no indication that Dr. Kershner reviewed the documentation and she relied on the applicant’s self-reports.

20Ms. Miller found that the applicant’s coping skills are effective. The applicant reported to Ms. Miller that he is comfortable driving, his pain is intermittent, he has returned to nearly full-time work and most of his housekeeping activities. Ms. Miller concludes that the applicant has reached maximal medical recovery from a psychological perspective.

21Overall, I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG since he sustained predominantly minor injuries.

Is the applicant entitled to an income replacement benefit?

22The eligibility criteria for an income replacement benefit (“IRB”) are laid out in s. 5 of the Schedule. Section 5(1)2 states that the insurer shall pay an income replacement benefit to a self-employed insured person who sustains an impairment as a result of an accident if the insured person satisfies both of the following conditions:

2. The insured person,

i. was a self-employed person at the time of the accident and,

ii. suffers, as a result of and within 104 weeks after the accident a substantial inability to perform the essential tasks of his self-employment.

23The applicant submits that he was self-employed as a social worker with Kerry’s Place on the date of the accident, but he has not produced any income documentation in support of his claim for an IRB based on this type of work. The applicant further submits he was unable to return to work as a social worker for a period of 4 months after the accident. The applicant relies on his OCF-3 dated September 1, 2020 completed by Dr. Rahim Jessa, the report of Dr. Nguyen and an IRB accountant report by Chang Hwan Kim, of Great Oak VFA Inc.

24The respondent submits there are credibility issues regarding the applicant’s employment. The evidence is contradictory regarding the type of employment the applicant was engaged in before and after the accident, as well as the date and capacity in which he returned to work. The respondent further submits the applicant has not provided any evidence of his self-employment as a social worker before or after the accident.

25The applicant relies on an accountant report which indicates that his only source of income in 2019 was as a self-employed as an Uber driver and he returned to work immediately after the accident. The applicant has not produced any evidence that he was receiving an income based on self-employment as a social worker. The applicant makes no submissions regarding the duties of his pre-accident self-employment as an Uber driver or whether he suffered a substantial inability to perform the essential tasks of his self-employment as an Uber driver within 104 weeks after the accident.

26The applicant has made contradictory statements regarding his return to work as a social worker after the accident. The applicant advised IE assessor, Ms. Alexys Cruz, kinesiologist on October 26, 2020 that he returned to work 3 weeks after the accident and he gradually returned to regular duties. On October 31, 2020, the applicant advised Dr. Naaman that he returned to work 4 weeks after the accident. The applicant contradicted his own submissions in reporting to Dr. Nguyen on April 19, 2021 that he’s not working. The applicant advised Ms. Miller on May 5, 2021 that he returned to work 2 months after the accident and continues to work in a reduced capacity at 30-35 hours per week. Finally, the applicant advised Dr. Naaman on November 20, 2021 that he returned to work part-time 4 weeks after the accident and full-time 6-8 weeks later.

27The respondent submits that the accountant report of Chang Hwan Kim does not verify the applicant’s self reports that he worked as a social worker full-time before and part-time after the accident. The respondent further submits that the IRB calculations up to September 30, 2020 are not based on the applicant’s self-employment income as a social worker before the accident. The respondent further submits the applicant reported to Dr. Naaman that he returned to work 4 weeks after the accident on a part-time basis for 6-8 weeks, then he returned to regular duties as a social worker.

28I find that the applicant has not met his burden of proving on a balance of probabilities that he was self-employed as a social worker before the accident. As a result, the applicant has not established his entitlement to an IRB based on his pre-accident self-employment as a social worker. Therefore, there is no calculation of an IRB based on the applicant’s self-employment as a social worker.

29I find that while the applicant has provided evidence of income from his self employment as an Uber driver, the accountant has only calculated an IRB for part of the period for which the applicant is claiming. In addition, the applicant has made no submissions regarding his self-employment as an Uber driver. The applicant reported to the accountant that he returned to work as an Uber driver immediately after the accident. As a result, I find the applicant has not met his burden of establishing entitlement to an IRB based on his self employment as an Uber driver.

Are the treatment plans payable?

30I find that the treatment plans in dispute are not payable.

31Here, the applicant seeks payment for plans in the amounts of $1,803.73, $197.69, $1,618.37 and $1,415.31 for physiotherapy services and plans in the amount of $2,460.00 and $2,460.00 for an orthopaedic and psychological assessments at Complete Rehab Centre.

32Since the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plans are reasonable and necessary.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful in demonstrating his entitlement to an IRB or the plans for physiotherapy services and orthopaedic and psychological assessments, no benefits are owing and interest does not apply.

ORDER

34For the reasons set out above, I find that:

i. The applicant has failed to demonstrate that removal from the MIG is warranted. Therefore, it is not necessary to consider whether the plans for physiotherapy services and orthopaedic and psychological assessments are reasonable and necessary;

ii. The applicant is not entitled to an income replacement benefit in the amount of $253.06 per week from September 7, 2020 to December 31, 2020;

iii. Interest does not apply, and;

iv. The application is dismissed.