Esteban Valencia v. Economical Insurance, 2025 CanLII 31131

Citation: Valencia v. Economical Insurance, 2025 ONLAT 23-005067/AABS

Licence Appeal Tribunal File Number: 23-005067/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:

Esteban Valencia

Applicant

and

Economical Insurance

Respondent

DECISION

ADJUDICATOR:

Matthew Frontini

APPEARANCES:

For the Applicant:

Rajiv Kapoor, Paralegal

For the Respondent:

Jeremy Hanigan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Esteban Valencia, the applicant, was involved in an automobile accident on September 17, 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, Economical Insurance, 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 $3,831.09 for psychological services, proposed by Premier MedicalHealth Centre Inc. in a treatment plan/OCF-18 dated November 4, 2022?

iii. Is the applicant entitled to $2,200.00 for a Chronic Pain Assessment, proposed by Premier MedicalHealth Centre Inc in a treatment plan/OCF18 dated November 4, 2022?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the disputed treatment plans;

iii. The applicant is not entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule; and

iv. The applicant is not entitled to an award under s. 10 of O. Reg 664; and

v. The application is dismissed.

ANALYSIS

The applicant is not removed from the MIG

4The applicant is not removed from the MIG. He has not established on a balance of probabilities that he has suffered more than a minor injury because of the accident.

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 Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7In this case, the applicant claims to suffer from psychological injuries and chronic pain. The applicant submits these injuries are outside the MIG. As a result, the applicant claims entitlement to medical benefits beyond the MIG funding limit.

The applicant has not established that he suffers a psychological injury

8The applicant has not established on a balance of probabilities that he suffers a psychological injury as a result of the accident warranting removal from the MIG.

9The applicant relies on the opinion of Dr. Leon Steiner, psychologist, in a report dated May 16, 2022 arising from an assessment carried out on May 5, 2022. Dr. Steiner’s assessment included a clinical interview and the administration of what he described as “psychological self-report questionnaires”. Dr. Steiner provided a DSM-V diagnosis of Adjustment Disorder with Mixed Anxiety & Depressed Mood and Specific Phobia, Situational (driver type).

10The respondent relies on the assessment reports of Dr. Rubenstein, psychologist, dated December 29, 2021, and January 23, 2023, from assessments conducted on December 6, 2021, and January 11, 2023, respectively. Dr. Rubenstein’s assessments included clinical interviews and the administration what he called “test instruments”. Dr. Rubenstein concluded that the applicant did not meet any of the criteria for a diagnosis according to the DSM-IV after each assessment.

11I am not persuaded by the applicant’s reliance on Dr. Steiner’s assessment in the absence of contemporaneous corroborating evidence. Important aspects of the applicant’s condition as reported to Dr. Steiner are not supported by corroborating evidence and, in at least one case, is not related to the accident. During Dr. Steiner’s assessment, the applicant reported that he experiences significant sleep disturbances; had lost approximately 10 lbs of weight; was no longer eating the same as prior to the accident; suffers chronic pain; experiences driving anxiety and that he was not engaging in the same social activities that he used to enjoy prior to the accident, namely, playing soccer.

12However, the applicant had seen his family doctor on March 11, 2022, for a sore throat and he did not report any of the complaints contained in the Dr. Steiner’s report. The applicant saw his family doctor on October 24, 2022, again for a sore throat, and again did not report any of these issues. Finally, with respect to the applicant no longer playing soccer after the accident, he reported to Dr. Rubenstein that he “does not participate at present due to COVID-19 restrictions.” Dr. Steiner’s report only states that the applicant played soccer prior to the accident and no longer plays after the accident. The report does not state a reason why the applicant has stopped playing soccer and does not conclude that this change was because the of the accident. Given the evidence, the applicant not engaging in soccer does not appear to be related to the accident.

13In turn, I give more weight to Dr. Rubenstein’s assessment reports and their lack of diagnosis of a psychological injury. This conclusion is consistent with the lack of supporting corroborating evidence from the applicant’s family doctor regarding the complaints made by the applicant to Dr. Steiner.

14The applicant argues that Dr. Rubenstein’s reports should be given little, if any, weight because he assessed the applicant according to the DSM-IV, instead of the more recent DSM-V. In support of this position, the applicant attached 36 pages from an article titled: “Impact of the DSMIV to DSM-5 Changes on the National Survey on Drug Use and Health [Internet]”. The applicant does not describe specifically how the changes from the DSM-IV to DSM-V, and their impact on the National Survey on Drug Use and Health, are relevant to this application. Instead, the applicant reproduced some specific items from this article in a single paragraph of his submissions.

15The difficulty with the applicant’s argument is that there is no evidence that the changes from DSM-IV to the DSM-V are relevant in this case to the applicant’s diagnosis. The applicant’s arguments appear to infer that Dr. Rubenstein made a professional error in using the older version of the DSM. However, there is no evidence to support this contention. The applicant’s reliance on an article about a national survey, which describes general differences between the versions of the DSM, does not speak to the specific context of this case. The applicant has not identified specific evidence of the impact of DSM-IV versus the DSM-V on the applicant’s diagnosis. In the absence of such evidence, I am not persuaded by the applicant’s submissions.

16For these reasons, I find the applicant has not demonstrated on a balance of probabilities that he sustained a psychological injury as a result of the accident.

The applicant has not established that he suffers chronic pain

17I find that the applicant has not established on a balance of probabilities that he suffers chronic pain as result of the accident warranting removal from the MIG.

18An insured may be removed from the MIG if they suffer from chronic pain because of the accident. However, it is not enough for the insured to have pain over an extended duration of time – it must be accompanied by functional impairment. At paragraph 34 of his submissions, the applicant appears to acknowledge that the timeframe under the MIG for the healing of minor injuries is up to six months.

19The applicant’s contention is that he has suffered pain up to the date of the application and that this pain, particularly in his hand, resulted in a functional impairment as evidenced by the applicant obtaining new and functionally different employment. Specifically, before the accident the applicant was involved in physically demanding labour, and then after the accident he eventually changed employment to an office job.

20The applicant’s submissions largely criticize the findings of the respondent’s assessors. The earliest assessment was conducted by Dr. Fathi Abuzgaya on November 9, 2021. The applicant focuses on reports of pain made to Dr. Abuzgaya during this assessment. However, given that this assessment took place less than two months after the accident, I do not find it relevant to the issue of whether the applicant’s pain was chronic in this case. Pain during this time would be expected during the normal healing of a minor injury and its related sequelae.

21The applicant also places great emphasis on the records of HealthMax beginning on September 22, 2021, and continuing until the applicant ceased treatment on February 12, 2022, a period a little less than five months after the accident. These records describe the applicant’s improvement over time, although there is a setback when he fell off a ladder in January 2022. The records on February 3, 2022, indicate that the applicant obtained new employment to accommodate the injuries to his wrist and hand. The last record dated February 12, 2022, indicates that the range of motion of the applicant’s neck, back and wrist were all within normal limits and pain free; thumb pain reduced to 3/10 and that there was weakness in the right hand. Overall, the HealthMax records indicate that the applicant’s injuries were improving within the time would be expected during the normal healing of a minor injury and its related sequelae and these records end before the period when complaints of pain would be considered chronic.

22As noted above, the applicant relies on his change of employment around February 3, 2022, as recorded in the HealthMax records, just over four months after the accident, as evidence of his functional impairment. The difficulty with this submission is that the applicant changed employment during the six-month healing timeframe expected for minor injuries, when pain would be expected as a sequela to otherwise minor injuries. The applicant’s change of employment is too soon after the accident to establish whether he has suffered a functional impairment because of chronic pain. Furthermore, there is no evidence suggesting that the applicant intended to return to former employment but could not because of his injuries. To the contrary, in January 2023, the applicant reported to Dr. Rubenstein that his current job is his favorite job stating “[i]t’s the job I always wanted to have.”

23I am also not persuaded that the applicant has established that he has suffered continuing pain eight months after the accident, as reported to Dr. Steiner. As described above, I place little weight on the complaints reported by the applicant to Dr. Steiner because they are not supported by corroborating evidence.

24The respondent also relies on the assessment by Dr. Bansal, a general physician retained by the respondent, on November 15, 2023. Dr. Bansal’s report dated November 28, 2023, concluded that the applicant’s injuries had healed and there was no evidence of musculoskeletal, orthopaedic or neurological injury.

25The applicant takes issue with Dr. Bansal’s report stating that he ignored the applicant’s complaints of pain. In considering the applicant’s submission, it is helpful to set out the applicant’s complaints of pain as reported Dr. Bansal:

CURRENT COMPLAINTS

Mr. Valencia reported that she [sic] is continuing to experience the following symptoms that he was [sic] directly relating to subject MVA.

Right thumb pain: Mr. Valencia reported experiencing pain as he pointed to the region of his first metacarpal-phalangeal joint. He stated that this is “not very painful” and described the character of the pain as “sharp light pain”. He stated that he experiences this pain on average approximately every three days. He reported that this pain is triggered by lifting with his right hand, during prolonged typing, and if he should “strain” the area (Mr. Valencia was demonstrating right thumb extension). He described experienced relief by resting his right hand. In terms of progress, he stated that his pain is “a lot better”.

Mr. Valencia reported no other areas of physical pain in relation to the subject MVA. He stated that he did have pain involving his right shoulder, neck and right elbow that resolved following therapy.

26This passage indicates that the Dr. Bansal did not ignore the applicant’s complaints of pain and considered them in arriving at his conclusions.

27Considering the applicant’s report to Dr. Bansal, the pain that the applicant complained of during this assessment does not rise to the level of chronic pain resulting in functional impairment. The applicant’s thumb pain was described as “not very painful”, “a lot better” and could be relieved by rest. The applicant also confirmed that all other accident-related pain was resolved by less than five months of therapy after the accident.

28Collectively, the evidence does not establish that the applicant has experienced pain or suffered a functional impairment after the healing timeframe expected of minor injuries. I find that the applicant has not established that he suffers chronic pain as a result of the accident that warrants removal from the MIG.

29The applicant remains subject to the funding and treatment limits of the MIG. The applicant is entitled the remaining amount left under the MIG, if any.

30Since the applicant is held to the funding and treatment limits of the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.

The applicant is not entitled to the treatment plan for psychological services

31The applicant is not entitled to the treatment plan dated November 4, 2022, for psychological services.

32Generally, to receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. However, a respondent may also be liable for a treatment plan when its denials do not comply with the Schedule’s requirements for providing proper notice to an insured person.

33I have previously described the parties’ respective evidence regarding whether the applicant suffered a psychological injury as a result of the accident. I already determined that the applicant has not established that he suffers a psychological injury based on the evidence before me in this application.

The applicant’s section 38 arguments

34The applicant argues that the denial of this treatment plan contravenes Schedule’s requirements for providing proper notice to an insured person in contravention of s. 38 and it is payable pursuant to s. 38(11). In support of this argument, the applicant focuses on four alleged deficiencies in the respondent’s denial letter: (1) it failed to assert the MIG as ground of denial, as required by s. 38(9); (2) it provides allegedly insufficient medical reasons for the denial; (3) it allegedly noted the incorrect treatment plan because it referenced a “chronic pain assessment” in the body of the letter; and (4) it stated that a s. 44 assessment was required for this treatment plan and such an assessment never took place.

35Because of these alleged deficiencies, the applicant argues that the respondent is barred from taking the position that the MIG applies, and that this treatment plan is payable pursuant to s. 38(11)(2). I will describe the denial letter below before considering each of deficiencies asserted by the applicant.

The denial letter

36The respondent provided a denial letter, dated November 16, 2022, in respect of this treatment plan. The denial letter included a subject heading that correctly identified the service provider that had submitted the treatment plan, the amount of the treatment plan and the services sought by the treatment plan. The denial letter also enclosed a copy of the treatment plan in question.

37The denial stated that the respondent was not agreeable to paying for the disputed treatment plan based on Dr. Rubenstein’s report, dated December 29, 2021, which found that the applicant had not sustained any diagnosable psychological injury. It also addressed Dr. Steiner’s conclusions and noted the lack of supporting evidence. None the less, the denial letter stated that a section 44 insurer’s examination report would be needed to determine whether the disputed treatment plan was reasonable and necessary. The denial letter further advised that a notice of assessment for this purpose would follow. The respondent’s denial letter did not provide any other grounds, including that the MIG applies, as a basis for the denial.

38It is undisputed that the applicant did not receive a notice of assessment from the respondent in relation to this treatment plan. The respondent’s two psychological assessment reports by Dr. Rubenstein are for other issues.

The MIG applicability argument and alleged contravention of s. 38(9)

39The applicant argues that because the respondent failed to include the MIG as a basis of denial as required by s. 38(9), it is barred from taking the position that the MIG applies in this application pursuant to s. 38(11)(1). Respectfully, this submission incorrectly applies the effect of s. 38(9) and s. 38(11)(1) to this application. While the respondent may not be able to take the position that the insured person has an impairment to which the MIG applies while adjusting the file or in relation to the shall pay provisions in s. 38(11) in relation to this treatment plan, if they apply, that result does not shift the applicant’s evidentiary burden in this application. As previously discussed, and is well-established, the evidentiary burden to establish on a balance of probabilities that an applicant’s injuries are outside the MIG lies with the applicant. An alleged contravention of s. 38(9) does not affirmatively establish that the applicant has met this burden.

40As set out in detail above, I have found that the applicant has not established on a balance of probabilities that he has suffered more than a minor injury because of the accident.

Allegedly insufficient medical reasons in contravention of s. 38(8)

41The applicant argues that the denial letter contravenes s. 38(8) because the medical and other reasons relied upon by the respondent are insufficient. These reasons are allegedly insufficient because the denial did not provide “specific reasons as to why [the applicant’s] conditions do not justify his removal from [the MIG].” A review of the denial letter does not support the applicant’s arguments. The denial letter states that Dr. Rubenstein’s assessment did not identify a diagnosable psychological impairment as a result of the accident. The denial also refers to other findings described in the Dr. Rubenstein’s assessment that were relevant to the applicant’s psychological functioning. The denial also states that Dr. Steiner’s diagnoses were based on subjective reports and did not include useful testing.

42The applicant’s submission that the denial letter does not contain specific reasons for the denial is untenable. The letter clearly provides specific reasons. While the applicant may disagree with those reasons, it is well-established that those reasons do not need to be legally correct to satisfy s. 38, see e.g. Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA).

Alleged failure to identify the denied services in contravention of s.38(8)

43The applicant appears to argue that because the term “chronic pain assessment” appears in the body of the denial, the respondent failed to identify the services described in the treatment plan, which it does not agree to pay for, in contravention of s. 38(8). I do not accept this argument. As described above, the heading of the denial letter correctly set out the relevant details of the treatment plan, including the services, and confirmed it would not pay for any of those services. Furthermore, the denial letter enclosed the treatment plan in question. Given this context, I do not accept that the applicant did not have proper notice as required by s. 38(8) of what services the respondent did not agree to pay for because of what appears to be a typographical error.

Alleged failure to schedule an assessment as a contravention of s. 38(8)

44The applicant argues that because the denial letter stated that an examination would be scheduled, and that such examination never took place, the denial letter contravenes s. 38. The difficulty with the applicant’s argument is that he has not identified the authority for this proposition. Section 38(8) requires that the respondent provide sufficient reasons for the denial. Section 38(10) provides that if an insurer does not agree to pay for a treatment plan it may notify the insured person that an examination is required. The applicant has not explained how s. 38 is contravened, and how s. 38(11)(2) is engaged, if an insurer exercises its right under s. 38(10) to notify an insured that an examination is required but does not undertake such an examination. Moreover, these are distinct issues and s. 38(11)(2) is only engaged when an insurer fails to give notice in accordance with s. 38(8).

45Based on the foregoing analysis, I find that the applicant has not established on a balance of probabilities that this treatment plan is payable pursuant to s. 38(11)(2).

The applicant is not entitled to the treatment plan for a chronic pain assessment

46The applicant is not entitled to the treatment plan dated November 4, 2022, for a chronic pain assessment.

47As described above, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.

48As with denials of treatment plans for goods and services, a respondent may also be liable to pay for a treatment plan for an assessment when its denials do not comply with the Schedule’s requirements for providing proper notice to an insured person pursuant to s. 38.

The applicant’s section 38 arguments

49The applicant argues that the denial of this treatment plan contravenes Schedule’s requirements for providing proper notice to an insured person in contravention of s. 38 of the Schedule. In support of this argument, the applicant focuses on two alleged deficiencies in the respondent’s denial letter: (1) it failed to assert the MIG as a ground of denial, as required by s. 38(9); and (2) it provides allegedly insufficient medical reasons for the denial. The applicant also relies on a third ground; a s. 44 assessment report pertaining to this treatment plan was not provided to the applicant until a month after it was finalized, allegedly in contravention of s. 37(5).

50Because of these alleged deficiencies, the applicant argues that the respondent is barred from taking the position that the MIG applies, and that this treatment plan is payable pursuant to s. 38(11)(2). I will describe the denial letter below before considering each of deficiencies asserted by the applicant.

The denial letter

51The respondent provided a denial letter, dated November 18, 2022, in respect of this treatment plan. The denial stated that the respondent was not agreeable to paying for the disputed treatment plan based an orthopaedic assessment report of Dr. Fathi Abuzgaya dated December 29, 2021, referencing the applicant’s functional range of motion and lack of objective evidence of injury. The denial letter also referred to Dr. Rubenstein’s report, dated December 29, 2021. The denial also stated that a section 44 insurer’s examination report would be needed to determine whether the disputed treatment plan was reasonable and necessary and advised that a notice of assessment for this purpose would follow. The respondent’s denial letter did not provide any other grounds, including that the MIG applies, as a basis for the denial. There is no dispute that a s. 44 assessment in respect of this treatment plan eventually took place.

The MIG applicability argument and alleged contravention of s. 38(9)

52For the same reasons as set out above in relation to the treatment plan for psychological services, I do not accept the applicant’s argument that a contravention of s. 38(9) entitles him to payment of a treatment plan.

Allegedly insufficient medical reasons in contravention of s. 38(8)

53The applicant argues that because the respondent directly quoted the conclusions of the assessors, the notice does not provide adequate medical and other reasons for the denial. The applicant relies on G.P. v. Wawanesa Mutual Insurance Company, 2022 ONLAT 18- 010583/AABS (“G.P.”) in support of this proposition. In particular, the applicant relies on a partial excerpt of paragraph 58(a) from G.P. However, a review of the entire passage reveals that the facts in G.P. are quite different and not applicable to this application.

54As it relates to s. 38, paragraph 53(a) of G.P. was concerned with a partial denial of a treatment plan comprising 12 different assessments for the purposes of determining whether the applicant had suffered a catastrophic impairment. The respondent’s denial indicated that it would pay for $12,000.00 worth of assessments but it did not indicate which assessments would be approved and which would not. The medical and other reasons for why it would not pay the remainder were stated in the denial letter as because the assessor “found the number of assessments proposed on the Treatment and Assessment Plant (OCF-18) to be excessive.”

55In G.P., the Tribunal was concerned that the applicant did not have notice as to which assessments would be paid for and which would not – a clear contravention of s. 38(8). The Tribunal was further concerned that that the only reason provided for the denial of some, unidentified assessments together with others that were approved, was because the denial only stated that the assessor found the number to be excessive. The reliance on the conclusion of the assessor, without providing the reasons contained in the assessor’s report leading to that conclusion, required the applicant to read the entire report to understand which assessments were not approved and for what reasons they were considered to be excessive by the assessor.

56This reasoning is not applicable to the denial at hand. That letter summarized the medical findings of the assessors that lead to the respondent’s decision to not approve the treatment plan. The applicant was not required to read the entire assessment report to understand the medical reasons for the denial, unlike in G.P. Also, there is no confusion as to what services have been denied – the chronic pain assessment described in the treatment plan was denied.

Alleged contravention of s. 37(5)

57The applicant argues that the respondent’s alleged contravention of s. 37(5) entitles him to payment of this treatment plan pursuant to s. 38(11)(2). As stated by the applicant, an insurer is required to provide an assessor’s examination report “within 10 days of their finalization” (emphasis added).

58There are two difficulties with the applicant’s argument. First, the applicant has not established that the respondent contravened s. 37(5). The applicant has not correctly stated the statutory requirements of s. 37(5). Section 37(5) requires an insurer to provide a copy a report to the insured within 10 days after the insurer has received it. I also do not accept an argument premised on an inference that the date the report was finalized is the date it was received by the respondent. I am not prepared to make that inference, especially given that the case conference report order indicated that the adjuster’s log notes were to be provided to the applicant. These notes would be a better source of the date the respondent received the report, and the applicant has not suggested that the respondent failed to comply with the production deadlines imposed by the case conference report and order. The date the report was finalized does not establish when the respondent received it. Absent this key evidence, the applicant has not established that there has been a contravention of s. 37(5).

59The second weakness with the applicant’s argument is that he has not established how a contravention of s. 37(5) leads to the applicant’s entitlement to payment for a treatment plan pursuant to s. 38(11)(2). First, s. 37(5) applies to a different category of benefits – specified benefits. The applicant has not provided any reasoning that would link an alleged contravention of s. 37(5) pertaining to providing an assessment report for a specified benefit with the entitlement arising from contravention of s. 38(8) pertaining to an improper notice of denial. These are distinct issues and s. 38(11)(2) is only engaged when an insurer fails to give notice in accordance with s. 38(8).

60Based on the foregoing analysis, I find that the applicant has not established on balance of probabilities that this treatment plan is payable pursuant to s. 38(11)(2).

Interest

61As I have found that the applicant is note removed from the MIG and not entitled to any of the disputed treatment plans, he is not entitled to interest.

Award

62The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

63The applicant makes general submissions that the respondent has consistently and unjustifiably delayed relief to which the applicant is allegedly entitled. This submission is not supported by the evidence before me. Furthermore, I have found that the applicant is not entitled to any of the disputed benefits. I find that the applicant has not established that he is entitled to an award.

ORDER

64I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the disputed treatment plans;

iii. The applicant is not entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule; and

iv. The applicant is not entitled to an award under s. 10 of O. Reg 664; and

v. The application is dismissed.