Citation: Nehme v. Cooperators General Insurance Co., 2025 ONLAT 23-013769/AABS

Licence Appeal Tribunal File Number: 23-013769/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:

Ibrahim Nehme

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Rock

APPEARANCES:

For the Applicant:

Lily Rodriguez, Paralegal

For the Respondent:

Emily A. Schatzker, Counsel

HEARD:

By written submissions

OVERVIEW

1Ibrahim Nehme, the applicant, was involved in an automobile accident on June 27, 2016, 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, Co-Operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issue to be determined is:

i. Is the applicant barred from proceeding to a hearing for the following benefit: non-earner benefit (NEB) because the applicant failed to dispute the denial within the 2-year limitation period?

SUBSTANTIVE ISSUES

3The substantive 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 limit?

ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Mind By Design in a treatment plan/OCF-18 (“plan”) submitted November 26, 2021?

iii. Is the applicant entitled to $8,261.04 for psychological services, proposed by Mind By Design in a plan submitted November 26, 2021?

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

4The applicant is barred from proceeding with their claim for a NEB due to the two-year limitation period.

5The applicant remains in the MIG.

6As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

7No award or interest is owing.

ANALYSIS

Preliminary Issue

8I find that the applicant is barred from proceeding with his claim for a NEB.

9The respondent submits that it informed the applicant that he was entitled to an Income Replacement Benefit (IRB), and not eligible for a NEB on December 22, 2016, a lack of income documentation, and a s. 44 report. This denial included the requisite “right to dispute” form.

10The respondent submits that they began assessing the applicant’s IRB entitlement and engaged a firm to calculate the IRB quantum. The applicant did not produce the required income documentation to properly complete the calculation. On March 8, 2017, the respondent informed the applicant that they were non-compliant as per s. 33 of the Schedule. On April 5, 2017, the respondent denied IRB based on a s. 44 report by Dr. Ko, physiatrist, which found no objective evidence of ongoing impairment, and that the applicant suffered predominantly minor injuries.

11The respondent relies on s. 56 of the Schedule which states, “an application under subsection 280 (2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed”. The respondent submits that the application for a NEB was nearly five years past the limitation period.

12The applicant submits that he should not be barred form proceeding with a NEB claim because the denial was based on substantive entitlement, while the applicant relies on a procedural breach in the respondent’s denial to demonstrate entitlement, arguing that the respondent failed to provide them with the election form required under s. 35. The procedural breach claimed by the applicant is based on s. 35(1) of the Schedule, which states:

If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, within 30 days after receiving the notice, the benefit he or she wishes to receive.

13I agree with the respondent that there is no procedural breach. At the time of the accident, the applicant was working. The respondent informed the applicant that based on the information provided, that he was self-employed and suffered a substantial inability to return to self-employment, that he was entitled to IRB, and could not qualify for a NEB. The respondent then began processing his entitlement for IRB. I have been presented with no evidence that the applicant disputed this denial, that he was eligible for an IRB and not a NEB or that he was not working at the time of the accident to warrant entitlement to a NEB. Put another way, because the applicant was employed at the time of the accident, an election was not required. As such, the applicant’s procedural argument under s. 35(1) does not address or cure the two-year limitation period that bars his claim under s. 56.

14Accordingly, the applicant is barred from proceeding with his claim for a NEB as he failed to dispute the respondent’s denial within two years.

Substantive Issues

Minor Injury Guideline (MIG)

1Section 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.”

2An 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.

Pre-existing Condition

3The applicant has not proven on a balance of probabilities that he suffers from a pre-existing condition that would preclude his recovery if confined to the MIG.

4The applicant submits that he suffered from pre-existing back pain that was aggravated by the subject accident. The applicant relies on a s. 25 assessment by Dr. West, orthopaedic surgeon, completed on March 21, 2018 that found…?.

5I find that the s. 25 assessment refers to the applicant experiencing a pre-existing injury in the form of back pain. However, I am not directed in the report as to how Dr. West concluded that there was “substantial evidence of a pre-existing medical condition”. Dr. West cites that the only medical documentation he was provided at the time of the assessment was an MVA Impact Report from October 29, 2017. I am not directed to how Dr. West could ascertain substantial evidence of a pre-existing medical condition with no access to the applicant’s family doctor records or medical imaging. While the applicant may have reported pre-existing pain, this is not sufficient evidence to support a documented pre-existing condition pursuant to s. 18(2).

6As a result, I find that the has not met his onus to proven on a balance of probabilities that he suffers from a pre-existing medical condition that would preclude his recovery in MIG. While Dr. West mentions substantial evidence of a pre-existing medical condition, he does not refer to what the evidence is. Further, I have not been directed to medical evidence that documents a 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, as required by s. 18(2) for removal on this ground.

7The applicant is not removed from MIG due to a pre-existing medical condition.

Chronic Pain with a Functional Impairment

8The applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with a functional impairment.

9The applicant argues that he has developed chronic pain with a functional impairment as a result of the subject accident. The applicant relies on the clinical notes and records (CNRs) of his family doctor, Dr. Zike, and a s. 25 assessment by Dr. West, orthopaedic surgeon, from March 18, 2018.

10I find that the CNRs of Dr. Zike do not support the applicant’s claim that he suffers from chronic pain with a functional impairment. The applicant did not report his accident to the doctor on his July 4, 2016 visit, rather the first mention of the accident is on September 16, 2016, that reports “neck pain, few weeks, mva 1.5 years ago”. Back pain is first mentioned on July 6, 2019, approximately three years after the accident. Back pain is not mentioned again until June 21, 2023, approximately seven years after the accident, and is attributed to lifting heavy bags, not the subject accident. In the entries where pain is mentioned, there is some discussion of functional issues, but no timing of length or severity is captured and no causal relation to the accident is established. There is no mention of a chronic pain diagnosis in the CNRs, nor any referrals to specialists for chronic pain. Medical imaging included an MRI and X-Ray, however both note mild degenerative changes that are not related to the accident.

11While I find that the assessment by Dr. West diagnoses the applicant with chronic pain, I am not directed to how Dr. West came to this diagnosis. The only medical documentation that he reviewed was an MVA Impact Report, that has not been included in the evidence. As such, where he has not reviewed the CNRs of the applicant’s family doctor, or medical imagining, I find his diagnosis attracts limited weight. In his rationale, he indicates that the applicant’s symptoms have persisted, and are unremitting since the accident, however this statement is not corroborated by the CNRs of Dr. Zike, which do not note persistent or unremitting pain reporting or functional impairment.

12The respondent submits that the applicant has not met his onus to prove that he suffers from chronic pain with a functional impairment. The respondent relies on a s. 44 assessment by Dr. Ko, physiatrist, from March 17, 2017 and surveillance data gathered by Larrek Investigations in a report from February 21, 2017.

13I find that the assessment by Dr. Ko does not support the applicant’s claim of chronic pain with a functional impairment. Dr. Ko noted that there was no objective evidence of an ongoing impairment with the applicant and that his injuries were minor in nature.

14I find that the report by Larrek Investigations does not support the applicant’s claim that he suffers from chronic pain with a functional impairment. The investigation captured video surveillance of the applicant completing his work tasks such as cooking, carrying large sacks of potatoes, delivering food, driving and walking all without any evidence of a functional impairment while completing those tasks.

15I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with a functional impairment. The CNRs of Dr. Zike, the assessment of Dr. Ko, and the video surveillance do not support the applicant’s claim of chronic pain with a functional impairment. The CNRs of Dr. Zike do not demonstrate the applicant complaining about chronic pain. The assessment by Dr. Ko diagnosed no ongoing impairments suffered by the applicant, and the video surveillance shows the applicant performing all his normal daily activities with no evidence of a functional impairment. The report by Dr. West does not overcome the above evidence even though he diagnosed the applicant with chronic pain. Dr. West provides no insight into how he developed this diagnosis beyond reliance on the self reporting of the applicant. The balance of the evidence provided does not demonstrate that the applicant suffers from chronic pain with a functional impairment as a result of the 2016 accident.

16I find on a balance of probabilities that the applicant is not removed from MIG due to chronic pain with a functional impairment.

Psychological Condition

17The applicant has not met his onus to prove on a balance of probabilities that he suffers from a psychological condition.

18The applicant submits that he has suffered from a psychological condition as a result of the subject accident. He relies on a psychological assessment by Dr. Sharifzadeh, psychologist, completed on December 6, 2021.

19I find that the psychological assessment by Dr. Sharifzadeh, supports the applicant’s claim of a psychological condition and diagnoses the applicant with post-traumatic stress disorder – severe range, and somatoform disorder. However, this diagnosis seems to contradict the CNRs of the applicant’s family doctor, as symptoms of this type of severe psychological condition are not mentioned. The report also introduces new complaints that do not appear in any other medical documentation, such as cognitive status, libidinal status, and appetite and weight.

20The respondent submits that the applicant has not met his onus to prove on a balance of probabilities that he suffers from a psychological condition. The respondent relies on the CNRs of Dr. Zike, and the qualifications of Ms. Arora, psychotherapist.

21I find that the CNRs of Dr. Zike do not support the applicant’s claim that he suffers from a psychological condition. In the CNRs, the applicant reports depression to Dr. Zike on July 4, 2016, but does not connect this reporting of depression to the subject accident, rather the note indicates “fell guilt about many issue in life”. On January 8, 2021, Dr. Zike performed a complete physical, and noted regarding psychiatric: “NOT in distress”. Similarly on August 28, 2023, Dr. Zike performed a complete physical and again noted regarding psychiatric: “Not in distress”.

22The respondent also questions the ability of Ms. Arora, psychotherapist, to preform the assessment the applicant relies on. Ms. Arora is identified in the assessment as conducting the clinical interview. The is a question as to whether she was qualified to make the clinical diagnosis that is presented in the report as she was not a registered psychotherapist until over four months after this assessment was completed. It is the respondent’s position that this diagnosis is beyond Ms. Arora’s scope at the time of the assessment. The applicant has not addressed this issue.

23I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from a psychological condition. I am not persuaded by the report by Ms. Arora as the contents of the report itself contains reporting that is not supported in any of the other evidence presented. Additionally, CNRs of Dr. Zike do not show that the applicant suffered from a psychological condition. The CNRs do show that the applicant would be comfortable speaking with Dr. Zike about any concerns about his psychological state as demonstrated by the July 4, 2016, visit however, the CNRs note that the applicant was not in any psychological distress in both 2021, and 2023 based on Dr. Zike’s assessment.

24I find on a balance of probabilities that the applicant is not removed from MIG due to a psychological condition.

25As the applicant remains in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.

Award

27The 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. As no benefits were unreasonably withheld or delayed, no award is owing.

ORDER

28I find that:

i. The applicant is barred from proceeding with their claim for NEB due to the two-year limitation period.

ii. The applicant remains in the MIG.

iii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

iv. No award or interest is owing.

v. The application is dismissed