Licence Appeal Tribunal File Number: 23-009245/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:
Imtiaz Ali
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Estella Muyinda
APPEARANCES:
For the Applicant: Linda Spurrell, Counsel
For the Respondent: Tanya Walia, Counsel
HEARD: By way of written submission
OVERVIEW
1Imtiaz Ali, the applicant, was involved in an automobile accident on March 18, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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
3The 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 $2,230.58 for chiropractic services, proposed by Progressive Rehab Clinic in a treatment plan dated August 17, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has not met his burden in establishing that his accident-related injuries warrant removal from the MIG.
5The applicant is not entitled to $2,230.58 for chiropractic services.
6The applicant is not entitled to interest.
7The application is dismissed.
PROCEDURAL ISSUE
8The respondent submits that the applicant failed to comply with the Case Conference Report and Order (CCRO) dated March 5, 2024, by not providing various medical records, including, decoded OHIP summary; prescription summary; complete copy of all clinical notes and records from Progressive Rehab Clinic; all hospital records from March 18, 2021, and the complete collateral benefits file, including STD and LTD. The respondent submits that because the applicant was in breach of the CCRO, an adverse inference should be drawn.
9The applicant submits that he is not in contempt of the CCRO as he made his best effort to produce the medical records. The applicant adds that he submitted the family doctors’ records and informed the respondent by email dated April 18, 2024, that he did not have hospital records that related to the accident or extended benefits records. I find that the letter from the applicant sufficiently indicated to the respondent that the applicant had made his best effort to the produce medical records as per the CCRO.
10Additionally, the respondent submits that it was prejudiced because the insurer ‘s examiner (IE), Dr. Seung-Jun Lee, (general physician) did not get an opportunity to review the medical records submitted by the applicant. Upon review of Dr. Lee’s report, I am satisfied that he had sufficient access to the applicant’s medical records that assisted him in his assessment of the applicant.
11In addition, the respondent submitted a sur-reply in response to the applicant’s reply. The respondent submitted a request to the Tribunal seeking the sur-reply to be accepted on the basis that the applicant introduced new evidence. Further, the respondent asserts that the applicant’s reply submission be struck, and the application be dismissed.
12I decline the respondent’s request to admit the sur-reply as the CCRO did not allow for a sur-reply by the respondent. And I will not be considering the respondent’s sur-reply as part of this written hearing because I am not persuaded that there was any prejudice to the respondent.
ANALYSIS
Application of the Minor Injury Guideline
13I find the applicant has not met his burden in establishing that his accident-related injuries fall outside the definition of a minor injury as set out in s. 3(1) of the Schedule.
14Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
15An insured person 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 from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
16In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
17The applicant submits that he should be removed from the MIG as he sustained injuries from the accident that led to his experiencing chronic pain. The respondent disagrees.
18The applicant visited a clinic two days after the accident, and he was treated by Dr. Waheeb Alshaar (a general practitioner). He did not have a family doctor to attend to him, and so, he was treated by Dr. Alshaar thereafter. The applicant complained of pain in the neck, left shoulder and back. He was prescribed medication such as naproxen and baclofen, and at a subsequent visit on June 1, 2021, he was directed to continue with physiotherapy, warm compressions, exercise.
19The clinical records and notes of Dr. Alshaar show that the applicant was referred for an Xray which revealed that the applicant did not have any fractures. The applicant followed up with Dr. Alshaar approximately every two months for one year. The applicant was referred to Dr. Samer Alandary, (general practitioner) whose clinical records show that as of September 3, 2021, the applicant still had neck and left shoulder pain. He referred the applicant for an orthopaedic assessment on October 21, 2021. The applicant does not appear to have undertaken the referral.
20The respondent relies on the s.44 EI report of Dr. Lee (dated March 19, 2024. In his report Dr. Lee opines that the applicant’s injuries are predominantly minor. Upon review of the applicant’s medical records, Dr. Lee opines that the applicant has not provided any compelling medical information to support the allegations that his injuries fall outside the MIG.
21In terms of the applicant’s impairments, the applicant has not persuaded me that he should be removed from the MIG because he has not submitted compelling medical evidence from his treating physicians, Dr. Alshaar or Dr. Alandary demonstrating that he had chronic pain. Particularly, the applicant does not point me to the clinical notes where the doctors establish, he has chronic pain. As well, I find that neither Dr. Alshaar nor Dr. Alandary mentioned or referred to chronic pain.
22The applicant submits that he suffers from functional impairment as he continues to have limitation with bending, reaching, and lifting. The applicant claims that the denial of the treatment plan has prolonged and worsened his pain by preventing him from engaging in rehabilitation efforts. However, the applicant has not directed me to medical evidence that he suffers from functional impairment due to the pain.
23The respondent submits that the applicant has healed from his injuries or impairments because, he made no pain related complaints to any treating physician after October 2021. Further, he did not attend an Orthopedic or Neurology appointment to which he was referred scheduled for December 30, 2021. Furthermore, the respondent submits that, since the applicant reported that he was in good health to his physician on October 29, 2021, he has not provided evidence of any ongoing pain or consumption of pain medication in almost three years.
24For the reasons above, I find that the applicant has not proven on a balance of probabilities that he has chronic pain with a functional impairment that warrants removal from the MIG.
25As the applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury, and as the MIG limits have been exhausted, an analysis to determine if the disputed treatment plan for chiropractic services is reasonable or necessary is not required.
Interest
26As the applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury, and as the MIG limits have been exhausted, an analysis to determine if the disputed treatment plan for chiropractic services is reasonable or necessary is not required.
ORDER
27I find that the applicant has not met his burden in establishing that his accident-related injuries warrant removal from the MIG.
28The applicant is not entitled to the treatment plan for $2,230.58 for chiropractic services.
29The applicant is not entitled to interest.
30The application is dismissed.
Released: July 25, 2025
Estella Muyinda
Adjudicator