Hassan v. Economical Mutual Insurance Company, 2025 CanLII 129084

Licence Appeal Tribunal

Citation: Hassan v. Economical Mutual Insurance Company, 2025 CanLII 129084 Licence Appeal Tribunal File Number: 24-003730/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:

Ismail Hassan

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Malcolm H Zoraik, Counsel

For the Respondent: Monika Korona, Counsel

HEARD: By Way Of Written Submissions

OVERVIEW

1Ismail Hassan, the applicant, was involved in an automobile accident on January 25, 2023, 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, Economical Mutual 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 an income replacement benefit in the amount of $241.99 per week from March 10, 2024, to date and ongoing?

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

RESULT

3The applicant is subject to the MIG. The applicant is not entitled to an IRB in the amount of $241.99 per week from March 10, 2024 to January 25, 2025. The application is dismissed.

PROCEDURAL ISSUES

4The Case Conference Report and Order requires that each party must index, bookmark/tab and consecutively paragraph and page number their documents. The parties must also make specific reference in their submissions to their evidence and authorities by tab and page number.

5The applicant's document brief index sets out tabs, page numbers and documents which are not bookmarked. The index refers to five tabs, A through E, with page numbers that do not correspond with what is found in the document brief. Whereas the applicant's submissions refer to tabs 1 through 8 with no corresponding index, bookmarks or page numbers for my reference. This made it increasingly difficult for me to refer to the documents referred to in the applicant's submissions. The respondent's submissions also do not make specific reference to the evidence by page numbers.

6Rule 3.2 of the Licence Appeal Tribunal Rules, 2023 ("LAT Rules") provides that the Tribunal may make such orders or give such directions in proceedings before it to control its process or to prevent abuse of its process. It is not the Tribunal's role to sort through the applicant's medical evidence, or to search for support for the applicant's position. LAT Rule 3.1 requires facilitating a fair process and effective participation by all parties, whether represented or self-represented, while balancing efficiency, proportionality, and timely resolution on the merits of each application. Having considered this context and that the applicant is represented, I have not engaged in a self-guided review of the entirety of the applicant's documents as it would be unduly prejudicial to the respondent and contrary to procedural fairness that the Tribunal make the applicant's case.

ANALYSIS

MINOR INJURY GUIDELINE

7I find that the applicant is subject to the MIG.

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 because of the accident he suffered injuries to his head, neck, shoulders, chest, and lower back and has ongoing pain and serious impairments. The respondent argues the applicant has not met his evidentiary onus on the issue of removal from the MIG.

Documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery within the MIG

11I find that the applicant has not established that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery within the MIG.

12The applicant argues that he has well-documented injuries and impairments which prevent him from achieving maximum recovery from his injuries. I find, however, that the applicant has not referenced any documented pre-existing injury or condition that I may consider. The applicant has referred me to an assessment that took place with Rahila Javed, physiotherapist, on February 14, 2023 at Galien Multidisciplinary Rehabilitation clinic. While this resulted in an OCF-3, Disability Certificate, there is no endorsement for prior or concurrent conditions in the OCF-3, so I find that this evidence does not assist the applicant in establishing that he has a pre-existing condition that warrants removal from the MIG.

13For the reasons above, I find that the applicant has not established that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery within the MIG.

Chronic Pain with functional impairment

14I find that the applicant has not established that he has chronic pain with a functional impairment that may warrant removal from the MIG.

15The applicant argues that I have before me a detailed assessment, and treatment records, confirming that the applicant has ongoing and chronic pain in his neck, shoulders, and lower back. The applicant also asks that I give these records more weight as they document the applicant's condition over a longer period, in comparison to the respondent's assessment which resulted from a single assessment that lasted approximately 60 minutes. Since the onus is on the applicant to establish on a balance of probabilities that he has chronic pain with a functional impairment that may warrant removal from the MIG, I will consider whether, prima facie, he has met his onus before I need to consider what weight to give the evidence.

16I am not clear as to which detailed assessment the applicant is referring me to as there is no reference in his submissions to guide me. Since the only other instance in submissions in which an assessment is relied upon by the applicant refers to the OCF-3, I have considered the OCF-3 in this context. The OCF-3 does not make any reference to chronic pain. According to the OCF-3, 9-12 weeks is endorsed as the anticipated duration of the applicant's disability relating to his employment as an Uber driver.

17The applicant's treatment records are from Galien Multidisciplinary Rehabilitation clinic. The applicant did not make any specific references for my consideration. Upon my review of these records, I did not find a reference to a chronic pain diagnosis.

18As referred to by the respondent, the Tribunal has held that the six criteria in The American Medical Association's, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, ("AMA Guides") are a helpful tool in the assessment of chronic pain. While the AMA Guides criteria for chronic pain were not incorporated into the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes in the absence of a diagnosis of chronic pain. The applicant did not address these criteria or provide evidence that would suggest that he meets at least three of the six criteria, as contemplated by the AMA Guides.

19As further argued by the respondent, the Tribunal has also held that pain which lasts past the period in which soft tissue or minor injuries should have been resolved is no more than mere sequelae without particulars and evidence of the level of pain, its effect on the person's function, or whether the pain is bearable without treatment. Without a diagnosis, or compelling medical evidence other than the length of time the pain lasted, the applicant has not met his onus to establish that he has chronic pain with a functional impairment that warrants removal from the MIG.

20For the reasons above, I find that the applicant has not established that he has chronic pain with a functional impairment that warrants removal from the MIG. Accordingly, on a balance of probabilities, I find, that the applicant is subject to the MIG.

PRE-104 WEEK INCOME REPLACEMENT BENEFIT $241.99 PER WEEK FROM MARCH 10, 2024 TO JANUARY 25, 2025

21I find that the applicant is not entitled to an IRB in the amount of $241.99 per week from March 10, 2024 to January 25, 2025.

22To 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.

Essential tasks of his employment

23The applicant argues that there is no dispute that he was employed as an Uber driver at the time of the accident. Accordingly, together with the OCF-3 dated February 14, 2023, the applicant argues he has met his onus of satisfying the requirements of s. 5(1) of the Schedule. However, the applicant did not identify the essential tasks of his employment, which tasks he is unable to perform and to what extent he is unable to perform them.

24Accordingly, I find that the applicant has not met his onus to establish that he suffers a substantial inability to perform the essential tasks of his employment.

Determination of continuing entitlement to IRB

25The crux of the applicant's argument is that the respondent has improperly discontinued his IRB after paying it from February 1, 2023, to March 10, 2024. The applicant argues the respondent improperly discontinued the IRB on March 10, 2024, as a result of a s. 44 Insurer Examination ("IE") completed by Dr. Arnold Rubenstein, Psychologist. The applicant argues this is improper because the applicant did not claim his disability was due to a psychological condition or symptoms and therefore Dr. Rubenstein's opinion is not relevant to a determination of whether the applicant meets the test for IRB. While not explicitly argued, it seems the applicant's focus is on s. 37(1)(b) and 37(2)(c) of the Schedule. In any case, I find that the evidentiary record before me does not indicate that the IRB was discontinued as a result of Dr. Rubenstein's opinion from a psychological perspective.

26The respondent argues that it discontinued the IRB on March 10, 2024, as a result of an IE completed by Dr. Pankaj Eric Bansal, General Practitioner. Dr. Bansal opined that the applicant did not meet the test for pre-104-week IRB based on his assessment.

27Correspondence dated March 6, 2024, from the respondent advised the applicant that his IRB payments will stop on March 10, 2024. In this correspondence, the respondent's position is that the applicant no longer qualifies for an IRB based on the report and opinion of Dr. Bansal. The respondent relies on s. 37(2)(c) in the correspondence to discontinue the IRB. As to the applicant's concern that the IRB was discontinued as a result of the psychological IE with Dr. Rubenstein, the record clarifies that this is not the case. The notice discontinuing IRB effective March 10, 2024 is dated March 6, 2024. The notice relies on Dr. Bansal's IE on February 7, 2024 and resulting in a report dated February 21, 2024. The psychological IE with Dr. Rubenstein took place on July 11, 2024 resulting in a report dated July 23, 2024. Although the respondent also relies on the psychological IE in determining whether to discontinue the applicant's IRB, it is not the primary basis for its decision to discontinue the IRB as of March 10, 2024.

28I find that the respondent is entitled to rely on the opinion of Dr. Bansal resulting from an IE in its March 6, 2024 correspondence to discontinue payment of IRB. Accordingly, on a balance of probabilities, I find, that the applicant is not entitled to an IRB in the amount of $241.99 per week from March 10, 2024 to January 25, 2025.

Interest

29The applicant is not entitled to interest because there are no overdue benefits pursuant to s. 51 of the Schedule.

ORDER

30For the reasons above, I make the following orders:

i. The applicant is subject to the MIG.

ii. The applicant is not entitled to an IRB in the amount of $241.99 per week from March 10, 2024 to January 25, 2025.

iii. The application is dismissed.