Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-003485/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:
Eskandar Eskandar
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Lawrence Calenti, Counsel
For the Respondent: Earl Murtha, Counsel (No submissions)
HEARD: In Writing
OVERVIEW
1Eskander Eskander, the applicant, was involved in an automobile accident on January 7, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (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 the treatments and assessments proposed by North Toronto Rehab Centre, as follows:
a. $3,589.89 for chiropractic services, in a treatment plan/OCF-18 (“plans”) submitted February 7, 2023;
b. $225.62 ($1,300.00 less $1,074.38 approved) for chiropractic services, in a plan submitted March 28, 2023; and
c. $1,382.24 for chiropractic services, in a plan submitted September 6, 2023?
iii. Is the applicant entitled to $150.00 ($350.00 less $200.00 paid) for an OCF-3 examination, proposed by Dr. Paul Nijmeh as submitted March 7, 2023?
iv. Is the applicant entitled to $2,621.60 for a neurological assessment, proposed by Dr. Vincenzo Basile in a plan submitted January 3, 2024?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.
4The applicant is not entitled to the plans in dispute, the partially denied OCF-3, or interest.
PROCEDURAL ISSUES
5On June 25, 2024, the applicant provided his hearing submissions to the Tribunal, however the respondent has not provided any submissions to date. On June 21, 2024, the Tribunal emailed the parties requesting submissions, but no response was received from the respondent.
6I am satisfied that the respondent received a notice of hearing from the Tribunal on November 23, 2023. The respondent subsequently filed a notice of motion for which a motion order was released by the Tribunal on February 29, 2024. The motion order also confirmed the written hearing date. I proceeded with the written hearing in the absence of submissions from the respondent, pursuant to s. 7(2) of the Statutory Powers Procedure Act, RSO 1990, c. S. 22.
ANALYSIS
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 clinically associated sequelae to such an injury.”
8An 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.
9The applicant submits that he should be removed from the MIG because he sustained a concussion as a result of the accident.
10For the following reasons, I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 funding limit on treatment.
Concussion
11I find that the applicant’s accident-related physical injuries do not warrant removal from the MIG.
12The applicant submits that the clinical notes and treatment plans from chiropractors Dr. Daisy Truong and Dr. Ian Kai of North Toronto Rehabilitation document a concussion diagnosis. The applicant also submits that there are several clinical notes from his family physician, Dr. Paul Nijmeh, that refer to symptoms that support concussion diagnosis.
13The applicant relies on the clinical notes of Dr. Daisy Truong, chiropractor, from January to March 2023 which note dizziness, right head and face pain with tingling, sleep disruption, fatigue, light sensitivity, and headaches. The applicant also relies on the s. 44 general practitioner assessment report of Dr. Ahmad Belfon dated November 21, 2023, which notes daily headaches subjectively rated as 4/10, mild sensitivity to lights and screens. According to the applicant, the treatment plan proposed by Dr. Ian Kai, chiropractor, lists a concussion as the applicant’s first injury.
14I am not persuaded by the applicant’s submissions. Both Dr. Truong and Dr. Kai are chiropractors at North Toronto Rehabilitation, and the applicant has not provided any evidence that they are qualified to diagnose a concussion. I find that Dr. Truong and Dr. Kai also only queried the possibility of a concussion, without any formal diagnosis.
15I have placed more weight on the report of Dr. Belfon and the clinical notes of Dr. Nijmeh, as they are more qualified to comment on any accident-related concussion.
16According to Dr. Belfon’s report, the applicant reported that he felt dizzy for about 35 seconds after the accident, he was able to drive his vehicle home, and he returned to his pre-accident full-time work as an Uber driver about two weeks after the accident. According to Dr. Belfon, the applicant sustained only minor injuries consistent with sprains and strains as a result of the accident. Dr. Belfon made no mention that the applicant sustained a concussion or concussion-related symptoms.
17With respect to the applicant’s family physician, I find no mention of a concussion diagnosis in his clinical notes and records. Dr. Nijmeh noted neck pain and occipital headaches during his initial assessment of the applicant following on January 23, 2023. Dr. Nijmeh noted no neurological deficits, no paresthesias, and that there had been no loss of consciousness. On March 8, 2023, Dr. Nijmeh noted that the applicant had no photophobia, visual changes, or dizziness. Dr. Nijmeh did not suggest or diagnose that he had a concussion.
18I accept that the applicant may have sustained neck pain, headaches, and a few seconds of dizziness immediately following the impact of the accident, but the applicant has not established on a balance of probabilities that he has a concussion that would warrant removal from the MIG.
19As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed treatment plans are reasonable and necessary as a result of the accident. The plans are not payable. The applicant is entitled to treatment up to the $3,500.00 MIG limits.
OCF-3
20The applicant did not mention issue iii. in his submissions. As the applicant has not provided any evidence related to his entitlement to $150.00 as submitted by Dr. Nijmeh for the completion of a disability certificate, I find that he has not met his onus for entitlement.
21I find on a balance of probabilities that the disputed amount for the completion of a disability certificate is not reasonable and necessary.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
ORDER
23The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.
24The applicant is not entitled to the plans in dispute, the partially denied OCF-3, or interest.
25The application is dismissed.
Released: February 18, 2025
Tyler Moore
Vice-Chair