Citation: Ouzzine v. Intact Insurance Company, 2025 ONLAT 23-010080/AABS

Licence Appeal Tribunal File Number: 23-010080/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:

Abbes Ouzzine

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Justin Walter, Paralegal

For the Respondent: Mahroze Khan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Abbes Ouzzine, the applicant, was involved in an automobile accident on May 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, 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:

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 a non-earner benefit of $185.00 per week from June 14, 2021 to May 17, 2023?

iii. Is the applicant entitled to the services proposed by St. Catharines PhysioHeal, as follows:

1. $2,476.68 for physiotherapy and chiropractic services, in a treatment plan dated August 10, 2021; and

2. $1,234.65 for physiotherapy and chiropractic services, in a treatment plan dated January 30, 2024?

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 grant the application in part.

4The applicant is removed from the MIG, as he has a documented pre-existing condition that prevents him from achieving maximal medical recovery under the MIG.

5The applicant is not entitled to a non-earner benefit of $185.00 per week from June 14, 2021 to May 17, 2023.

6The applicant is entitled to the treatment plan for physiotherapy and chiropractic services, dated August 10, 2021, plus interest.

7The applicant is not entitled to the treatment plan for physiotherapy and chiropractic services, dated January 30, 2024.

8The respondent is not liable to pay an award.

ANALYSIS

The applicant is removed from the Minor Injury Guideline

9Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

10An insured may be removed from the MIG if he can establish that his accident-related injuries fall outside of the MIG. To be removed from the MIG based on a pre-existing condition, the applicant must satisfy both parts of a two-part test pursuant to s. 18(2) of the Schedule. He must provide documented evidence of a pre-existing medical condition by a health practitioner, and he must also provide evidence that the pre-existing condition will prevent him from achieving maximal medical recovery from the minor injury if he is subject to the MIG limits. The burden of proof lies with the applicant.

11In this matter, the applicant submits that he should be removed from the MIG based on his pre-existing conditions, specifically a chronic back condition.

a) Pre-existing conditions

12I find that the applicant has proved on a balance of probabilities that his pre-existing chronic back pain would prevent him from achieving maximal medical recovery under the MIG.

13The applicant submits that at the time of the accident, he had a pre-existing chronic back condition. He was dealing with severe degenerative disc disease in his lumbar spine, which was causing significant chronic pain for which he was actively seeking care. The source of his chronic pain is related to the structural condition of his lumbar spine. He reported undergoing two separate spinal decompression surgeries for his lower back issues, the first in 2001 and the second in 2006. Despite those surgeries there was still clear evidence of structural issues in the applicant’s lumbar spine. Leading up to the date of the subject accident, the applicant attended on numerous occasions with his family physician, Dr. Katayoon Abrishami, to report his ongoing pain symptoms. He managed his pain symptoms mostly using prescription medications. The applicant notes that just prior to the subject accident, his family physician, referred him to the Centres for Pain Management where he was seen on April 20, 2021. The purpose of the consultation was to explore whether a suitable alternative could be found to replace his current regimen of prescription medications.

14The applicant submits that his pre-existing condition affects his ability to recover from the injuries he suffered in the accident. The applicant submits that since the accident, he suffers an increased level of pain from that which he experienced prior to the accident. He relies upon the CNR of Dr. Abrishami, dated May 20, 2021, where he reports “aggravation of pain in his back”. He further relies upon the CNRs of his new family doctor, Dr. Enas Abuelalaa. The CNR dated September 29, 2021, notes “acute lower back sprain” and a “severely decreased range of motion and inability to walk properly”. In a follow-up appointment on October 28, 2021, the applicant reported “flaring up of his lower back pain”, that the “pain is shooting to both legs”, and that the “pain medications are not working well”.

15The applicant relies upon the initial assessment at St. Catharines Physiotherapy Centre on May 21, 2021, where the assessor reported that the applicant’s previous lower back pain would present as a barrier to recovery. The applicant further relies on the treatment plan prepared by St. Catharines PhysioHeal, dated August 10, 2021, which advised that the applicant faces barriers to recovery due to his “previous lumbar spine injuries…multiple severe areas of injury including low back, shoulders, neck and elbow.”

16The applicant submits that in the IE report of Dr. Pankaj Bansal, general practitioner dated October 1, 2021, Dr. Bansal stated that there was no pre-existing medical condition that would contribute to the applicant’s current medical status in relation to the accident. He also stated that there were no signs of radicular pain or sciatic nerve root tension. The applicant acknowledges that the CNRs of Dr. Abrishami and Dr. Abuelalaa were not provided to Dr. Bansal. However, the applicant submits that the records from St. Catharines Physiotherapy Centre and St. Catharines PhysioHeal that were provided to Dr. Bansal contradict his findings and support that the applicant suffered injury of his lumbar spine and other intervertebral disc disorders with radiculopathy.

17The respondent submits that there is no evidence that the applicant’s pre-existing issues were exacerbated as a result of the accident or that he was prevented from achieving maximal medical recovery if subjected to the MIG limits. The respondent submits that the applicant suffered soft tissue injuries only, all of which fall within the definition of a minor injury. The respondent relies on the IE report of Dr. Bansal, dated October 1, 2021, which concluded that the applicant’s injuries were minor. The respondent argues that the applicant did not provide any medical records prior to the IE assessment, despite being requested multiple times. Following receipt of the requested medical records on September 6, 2023, the respondent requested an addendum from Dr. Bansal, which concluded that his opinion remain unchanged.

18The respondent submits that there is no medical evidence by any qualified expert that the applicant suffers from pre-existing medical conditions that would warrant treatment outside of the MIG. The respondent submits the following: (a) the applicant continues to take the same prescription medications for pain as he did prior to the accident; (b) the applicant continues to complain of the same issues post-accident that he did pre-accident, (c) post-accident medical records of the family physician mention the accident only once; (d) no records confirm that the applicant followed up with the chronic pain specialist or expert post-accident; (e) the applicant only provided physiotherapy records up to June 3, 2021 which indicate cervical strain and lumbar strain injuries with radiculopathy; and (f) no post-accident diagnostic reports suggest worsening of the applicant’s symptoms.

19I find upon review of the pre-accident records provided by the applicant in his submissions, that the applicant has provided sufficient medical evidence that documents his pre-existing back condition.

20I further find that the applicant has provided sufficient documentation to support a finding that his pre-existing medical condition will prevent maximal medical recovery within the funding limit imposed by the MIG. Upon review of the medical documentation provided, I find that post-accident the applicant consistently reported an exacerbation of his pre-accident back condition to multiple medical practitioners. I find the initial assessment report at from St. Catharines Physiotherapy Centre on May 21, 2021, reported that the applicant’s previous lower back pain would present as a barrier to recovery. Similarly, the treatment plan prepared by St. Catharines PhysioHeal, dated August 10, 2021, advised that the applicant faces barriers to recovery due to his “previous lumbar spine injuries…multiple severe areas of injury including low back, shoulders, neck and elbow.”

21I find the IE reports of Dr. Bansal, relied upon by the respondent unpersuasive and give them little weight. I find that Dr. Bansal’s conclusion in his report dated October 1, 2021, that the applicant does not have a pre-existing medical condition that would contribute to his current medical status in relation to the accident, is not supported by the medical evidence. Despite not having the applicant’s pre-accident records at the time of the assessment, the applicant did advise Dr. Bansal of his previous back surgeries and complaints and multiple treatment plans were provided for his review. In Dr. Bansal’s addendum report, dated October 24, 2023, he was provided with the complete pre-accident and post-accident medical records. Despite reviewing the pre-accident records, Dr. Bansal provided no analysis of the pre-existing medical evidence or how the applicant’s pre-accident back condition would affect his post-accident recovery. Dr. Bansal’s only conclusion was that the applicant suffered soft tissue injuries that would have long since healed. This conclusion was made despite the applicant’s reports to Dr. Bansal of his ongoing complaints and functional limitations.

22For the reasons outlined above, I find that the applicant has proved on a balance of probabilities that his pre-existing back condition will prevent him from achieving maximal medical recovery under the MIG and he is therefore removed from the MIG on this basis.

The applicant is not entitled to a Non-Earner Benefit

23I find that the applicant is not entitled to a non-earner benefit (“NEB”).

24The applicant has not provided any submissions with respect to his entitlement to a NEB. I therefore find that the applicant has not met his onus of proving on a balance of probabilities that he is entitled to a NEB.

Entitlement to Medical and Rehabilitation Benefits

25To receive payment for a treatment 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. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

a) The applicant is entitled to the treatment plan dated August 10, 2021

26I find that the treatment plan, prepared by St. Catharine’s PhysioHeal, dated August 10, 2021, recommending physiotherapy and chiropractic services, is reasonable and necessary as a result of the accident.

27The treatment plan recommends 12 sessions of exercise, 12 sessions of mobilization, and 12 sessions of PPE, in the amount of $2,468.88. The treatment plan identifies the goals of treatment as pain reduction, increase in strength, increase in range of motion, and return to activities of normal living.

28The applicant submits that the treatment plan dated August 10, 2021, is reasonable and necessary. The applicant submits that the treatment plan indicated that the applicant suffered lumbar and other intervertebral disc disorders with radiculopathy. The applicant relies upon the opinion of his family physicians Dr. Abrishami and Dr. Abuelalaa, and the treatment providers at St. Catharines Physiotherapy Centre and St. Catharines PhysioHeal, all of whom recommended that the applicant receive treatment.

29The respondent submits that the treatment plan dated August 10, 2021 is not reasonable or necessary. It relies upon the opinion of Dr. Bansal, in his IE report, dated October 1, 2021, and his addendum report dated October 10, 2023, which concluded that the applicant’s soft tissue injuries would be classified as a minor injury and that he was not entitled to further treatment.

30I find that the applicant has provided objective medical evidence from qualified medical practitioners that he continued to suffer ongoing physical pain post-accident and required ongoing treatment of his injuries. Upon review of the applicant’s family physician records, I find that the applicant made ongoing complaints about his back pain consistently post-accident and physiotherapy was recommended. On September 29, 2021, the applicant saw Dr. Abuelalaa with reports of severe lower back pain and shooting to both legs. He was assessed as having acute lower back sprain and referred for physiotherapy. I find that this recommendation contemporaneously supports the treatment plan in dispute for physiotherapy and chiropractic services.

31I do not find the conclusions of Dr. Bansal in his October 1, 2021 IE report persuasive. His conclusion that the applicant’s injuries are soft tissue type injuries that would have since healed is not supported by the evidence. The applicant made consistent reports of ongoing pain at the time of this assessment, thereby supporting the need for ongoing therapy as recommended by multiple practitioners.

32For the reasons outlined above, I find that the applicant has met his burden of proving on a balance of probabilities that the treatment plan in dispute is reasonable and necessary.

b) The applicant is not entitled to the treatment plan, dated January 30, 2024

33I find that the treatment plan, prepared by St. Catharine’s PhysioHeal, dated January 30, 2024, recommending physiotherapy and chiropractic services, is not reasonable and necessary as a result of the accident.

34The treatment plan recommends 5 sessions of exercise, 5 sessions of mobilization, a TENS unit and hot/cold gel packs, in the amount of $1,228.20. The treatment plan identifies the goals of treatment as pain reduction, increase in strength, increase in range of motion, and return to activities of normal living.

35The applicant and the respondent both made submissions about entitlement to this treatment plan along with their submissions about the treatment plan dated August 10, 2021. I find that the applicant did not specifically deal with this treatment plan, or the recommendations being made, in his submissions.

36I find based on my review of the medical evidence submitted that there are no contemporaneous records provided at the time this treatment plan was submitted. I find that the CNRs of the family physician were only provided up to January 17, 2022. The applicant has not submitted any medical documentation to support the reasonableness of this treatment plan at the time it was submitted other than the treatment plan itself. It is well established, that a treatment plan alone is not sufficient to proving entitlement.

37For the reasons outlined above, I find that the applicant has not met his onus of proving on a balance of probabilities that the treatment plan in dispute is reasonable and necessary.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest on the overdue benefit of the treatment plan dated August 10, 2021.

Award

39I find that the applicant has not established that the respondent is liable to pay an award.

40The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

41The applicant submits that the respondent has demonstrated a reluctance to adequately review the nature of the applicant’s impairments in order to maintain its position that the applicant’s injuries are MIG and that he is not entitled to treatment. The applicant submits that the respondent has relied upon the IE report of Dr. Bansal which they know is erroneous and not based on the medical evidence.

42The respondent submits that the applicant has not provided particulars of his claim for an award in advance of the hearing as required by s. 8 of the Statutory Powers Procedure Act, R.S.O. 1990 (“SPPA”). In addition, the respondent submits that that it has complied with the provisions of the Schedule and no benefit has been unreasonably withheld or delayed.

43I find that the applicant’s submissions do not point me to specific behaviours consistent with the respondent being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. In my view, the respondent addressed the applicant’s injuries and entitlement to the treatment plans in dispute and acted reasonably by requiring IEs to determine whether the applicant remained in the MIG. I also find that the applicant did not provide the IE assessor with the requested documentation prior to the assessment, despite multiple requests, which prevented the IE assessor from reviewing the pre-accident medical documentation at the time of his assessment. Once this documentation was produced, the respondent requested an IE addendum. I find that the respondent was entitled to rely on the opinions of its experts despite the fact that I have found that the applicant is removed from the MIG and he is entitled to the treatment plan dated August 10, 2021 in dispute.

44For the reasons outlined above, I find that the applicant has not met his onus on a balance of probabilities, that the respondent is required to pay an award.

ORDER

45For the reasons outlined above, I grant the application in part, and find:

i. The applicant is removed from the MIG as he has a documented pre-existing condition that prevents him from achieving maximal medical recovery under the MIG;

ii. The applicant is not entitled to a non-earner benefit of $185.00 per week from June 14, 2021 to May 17, 2023;

iii. The applicant is entitled to the treatment plan for physiotherapy and chiropractic services, dated August 10, 2021, plus interest;

iv. The applicant is not entitled to the treatment plan for physiotherapy and chiropractic services, dated January 30, 2024; and

v. The respondent is not liable to pay an award.