Citation: Nasah v. Intact Insurance Company, 2025 ONLAT 23-008251/AABS

Licence Appeal Tribunal File Number: 23-008251/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:

Omar Al Nasah

Applicant

And

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Peter Pietraszek, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1On June 30, 2021, Omar Al Nasah, the applicant, was involved in an automobile accident 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 Intact 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:

1. 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?

2. Is the applicant entitled to the following for chiropractic services proposed by Mediwise Healthcare Centre:

(i) $87.19 ($1,698.48 less $1,611.29 approved) for a treatment plan/OCF-18 (“plan”) dated July 13, 2021?

(ii) $87.19 ($1,136.55 less $1,049.36 approved) for a plan dated August 12, 2021?

(iii) $3,195.84 for a plan dated September 9, 2021?

(iv) $3,084.14 for a plan dated November 4, 2021?

(v) $2,555.66 for a plan dated January 4, 2022?

3. Is the applicant entitled to $1,920.53 for a psychological assessment proposed by Mediwise Healthcare Centre in a plan dated October 14, 2021?

4. Is the applicant entitled to $3,963.64 for social work services proposed by Mediwise Healthcare Centre in a plan dated November 30, 2021?

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

RESULT

3The applicant’s injuries are minor and therefore he remains in the MIG.

4The applicant is not entitled to the treatment plans in dispute.

5There is no interest given.

ANALYSIS

Applicability of the Minor Injury Guideline (MIG)

a) Chronic Pain

6I find that the applicant has not proven, on a balance of probabilities, that he suffers from chronic pain because of the accident and as a result he is not removed 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. 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 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.

9In this matter, the applicant submits that he suffers from chronic pain, psychological impairments and pre-existing conditions that warrant his removal from the MIG. The respondent submits that the applicant has not met his onus to prove that his injuries are not predominately minor or that they cannot be treated within the confines of the MIG.

10The applicant relies on two disability certificates (OCF-3s), completed by Amanpreet Mulyani, physiotherapist, dated July 5, 2021, and another completed by chiropractor, Dr. Kuldip Rakkar, dated July 20, 2021. In the Injury and Sequelae Information sections, the following was noted: muscle strain, sprain and strain of shoulder joint, pain in limb, pain and strain in thoracic spine, whiplash injury of muscle and tendon at thorax level, other headache syndromes, injury of neck-level muscle and tendon, chest pain associated with breathing, nervousness, and insomnia. The anticipated duration of disability was listed as 9 to 12 weeks.

11The applicant further relies on the hospital records from Brampton Civic Hospital, the clinical notes and records (“CNR’s”) of Dr. Amal El-Taweil, family doctor, five OCF-18’s, and Dr. Kuldip Rakkar's report dated July 13, 2021.

12The applicant also cites several cases including, Scarlett v. Belairdirect, 2015 ONSC 3635, to support the applicant’s position when considering the unique circumstances of each case when determining whether injuries fall within the MIG.

13The applicant also relied upon Aviva Canada Inc. v. Pastore, 2012 ONCA 642 to support their position that the idea that physical sources of pain might be linked to mental disorders, advocating for a multiple phase approach to treatment.

14The applicant submits his physical condition worsened considerably as a result of the accident. His follow-up visit with Dr. El-Taweil on July 2, 2021, documented neck pain, shoulder pain, headaches, bruising, and contusions

15Although an x-ray of the applicant on July 15, 2021, showed no fractures, the applicant submits the persistent pain he experienced in his chest and rib areas remained a significant complaint post-accident. The applicant’s post-accident symptoms continued through July 17, 2021, as he reported ongoing back pain, chest pain, neck pain, and shoulder pain. The applicant submits that despite his ongoing physiotherapy, these symptoms persisted, impacting his quality of life and ability to work.

16In Dr. Kuldip Rakkar's initial assessment of the applicant on July 13, 2021, the applicant reported chest, left shoulder, and mid-back pain, headaches, and fatigue, and non-restorative sleep. The applicant rated his chest pain as 8-9 out of 10, upper back pain as 6-9 out of 10, shoulder pain as 3-4 out of 10, and headaches 5-6 out of 10. The assessment revealed reduced mobility in the cervical spine and shoulders, along with tenderness and tightness in the cervical and thoracic muscles. Orthopedic testing confirmed musculoskeletal injuries, including strains in the ribs, sternum, and thoracic spine. The applicant reported his condition showed a slight improvement by July 30, 2021, when he reported better energy and sleep.

17The respondent relies on a s. 44 Insurer Examination (“IE”) completed by Dr. Charanjit Sandhu, an occupational medicine physician, on October 13, 2021. Dr. Sandhu found that the applicant has had no prior history of health problems or chronic pain and was not taking any medications before the accident. Dr. Sandhu further observed that the applicant remained independent with all activities of daily living.

18The results of an MRI indicated a vertebral body was in normal height and alignment. No spinal canal or neural foraminal stenosis were found. Also, there was no nerve root impingement reported. Dr. Sandhu concluded that the applicant’s symptoms were consistent with residual symptoms from myofascial sprains to his cervical spine, shoulders, and lumbar spine along with some ongoing post-traumatic headaches. Dr. Sandhu concluded that these injuries would fall within the scope of the MIG.

19I find the evidence before me shows that while the applicant sought treatment for his accident-related injuries, the medical evidence does not support a finding that he has chronic pain with a functional impairment, because there are limited references to pain of a chronic nature. I find there are no medical records from a any medical practitioner in this case that would support a diagnosis of chronic pain. Accordingly, I find in the CNR’s of Dr. El-Taweil, there are no indications from September of 2021 to March 19, 2024, that he saw the applicant as a result of any accident-related injuries.

20I find in Dr. Kuldip Rakkar's initial assessment of the applicant that the orthopedic testing confirmed musculoskeletal injuries, including strains in the ribs, sternum, and thoracic spine. I find that these injuries are minor in nature. Also, I find that the applicant told Dr. Rakkar on or about July 13, 2021, that he was improving in his overall health. However, I find the report of Dr. Sandhu persuasive, because his report was not solely based on the applicant’s self-reporting, but thorough physical examination.

21Even if I were to accept that the applicant suffered from ongoing pain after the accident, I am not persuaded that the applicant has met his burden to prove that he is experiencing chronic pain because of the accident. No doctor of any kind has diagnosed him with chronic pain.

22For these reasons, I find on a balance of probabilities that the applicant has not established that he has chronic pain that warrants removal from the MIG.

b) Psychological Impairment

23I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological impairment that would remove him from the MIG.

24The applicant relies on a Disability Certificate (OCF-3), completed by chiropractor, Dr. Kuldip Rakkar dated July 20, 2021. In the “Injury and Sequelae Information Sections,” psychological symptoms include nervousness, disorders of initiating and insomnia. The anticipated duration of disability was listed as 9 to 12 weeks.

25The applicant further relies on a psychological assessment report dated November 20, 2021, completed by Ms. Farzaneh Pariman, a psychological associate and supervised by Dr. Harinder Mrahar, psychologist, which found the applicant continues to suffer from ongoing symptoms, including myofascial sprains to his cervical spine, shoulders, and lumbar spine, as well as post-traumatic headaches. These findings are consistent with his own self reports of pain and limitations.

26The respondent submits that the applicant has not met his evidentiary burden to establish that he suffers from a psychological impairment as a result of the accident. The respondent relies on the IE report of June 30, 2022, prepared by Dr. Marc Mandel, psychologist. He relies on his report stating that the applicant does not suffer from a psychological impairment.

27I place limited weight on the report of Ms. Pariman, psychological associate, under the supervision of Dr. Mrahar, psychologist. The report does not clarify the extent to which Dr. Mrahar supervised Ms Pariman, or to what degree each of them contributed to the final diagnosis. I find that there is no indication that the report was completed with a review of the applicant’s medical file, or what documents, if any, were reviewed. It is unclear whether Dr.Mrahar relied on Ms. Pariman report, or that Dr. Mrahar reviewed the assessment or what his/her role was. In conducting her assessment, Ms. Pariman administered seven self-reporting questionnaires which did not contain any validity testing. Further, I find the conclusions of Ms. Pariman are insufficient to establish a psychological diagnosis the absence of supportive, objective medical evidence.

28I assign more weight to the s. 44 IE report of Dr. Mandel, because he reviewed the applicant’s medical records, and conducted an in depth two-and-a-half-hour examination, which included an interview and objective psychometric testing. Dr. Mandel opined that the applicant had “no indication of psychological impairment or need for treatment.”

29For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he sustained a psychological injury that would warrant removing him from the MIG.

c) Pre-existing Impairments

30I find that the applicant has not established a pre-existing injury to support his removal from the MIG under Section 18(2) of the Schedule.

3118. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline. O. Reg. 34/10, s. 18 (1); O. Reg. 123/19, s. 2 (1).

(2) Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline. O. Reg. 34/10, s. 18 (2); O. Reg. 347/13, s. 1; O. Reg. 123/19, s. 2 (2).

32The applicant submits that he has a documented history of degenerative disc disease (DDD), scoliosis and kyphosis, as reflected in his visits with his family doctor leading up to the accident. On September 6, 2020, and September 12, 2020, his medical records, it reveals stable vitals, and a physically demanding occupation in a warehouse. In my view, these entries demonstrate that despite having pre-existing conditions, the applicant was functioning at a high level physically, working in a physically strenuous job without significant limitations.

33The applicant submits that the entries in his family doctor’s notes on December 22, 2020, and February 10, 2021, he began to report mid-back pain, neck pain and left shoulder pain related to his known scoliosis and kyphosis. The applicant experienced tenderness in these areas but was still able to manage the pain with NSAIDs, physiotherapy, and rest. Notably, an MRI on March 6, 2021, revealed mild DDD at C6-C7 and disc desiccation with a small posterior disc bulge at L5- S1. This MRI confirmed the existence of structural spinal issues but showed no significant spinal canal stenosis. His subsequent visit with Dr. Vandit Sardana, an orthopedic surgeon on March 13, 2021, documented his chronic low back pain with DDD and prescribed over the counter treatments like Voltaren gel, Aleve, and physiotherapy.

34I find that the applicant has DDD, a documented history of degenerative disc disease (DDD), scoliosis and kyphosis, as reflected in his visits with his family doctor leading up to the accident. However, I find that there is no compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent him from achieving maximal recovery within the MIG limits.

35I find that on the balance of probabilities, that applicant has not established his onus that he had pre-existing injuries that would preclude his recovery within the MIG.

36As I have found that the applicant is subject to the monetary limits of the MIG, it is not necessary for me to consider if the disputed treatment plans are reasonable and necessary.

Interest

37As there are no outstanding payments, the applicant is not entitled to interest.

ORDER

38I find that:

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

ii. The applicant is not entitled to any of the disputed treatment plans in dispute.

iii. There is no interest awarded.

iv. The applicant is entitled to the remaining balance in the MIG of $649.74.

v. The application is dismissed.