Licence Appeal Tribunal File Number: 24-002182/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 Abdel-Akher
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gordon Stencell
APPEARANCES:
For the Applicant:
Michael Adamek, Counsel
For the Respondent:
Alanna Pink, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Omar Abdel-Akher, the Applicant, was involved in an automobile accident on February 26, 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, Wawanesa Mutual 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 $1,282.00 for physiotherapy services, proposed by ActiveCare Physiotherapy in a treatment plan/OCF-18 (“plan”) dated July 27, 2023?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The Applicant’s injuries are 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. As the applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
iii. The Applicant is not entitled to interest.
ANALYSIS
The Applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
4I find that the Applicant has not demonstrated, on the balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG.
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 injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.
7The 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.
The Applicant’s is not removed from the MIG on the basis of a pre-existing medical condition
8I find on the balance of probabilities, the Applicant does not suffer from a pre-existing medical condition that would warrant removal from the MIG.
9The Applicant argues he should be removed from the MIG on the basis of a pre-existing condition. The Applicant relies on the MRI requested by Dr. Bi Sabry, a family doctor, and the resulting report completed by The Ottawa Hospital Civic Campus, dated June 1, 2017, as evidence of a pre-existing condition of degenerative disc disease at L4-L5 and L5-S1, associated with mild to moderate left neural foramen stenosis and mild spinal canal stenosis, as well as a disc extrusion at L4-L5 suspected to compromise the left L5 nerve root.
10The Applicant argues the Insurer’s Examination (“IE”), orthopedic assessment report, dated September 27, 2023, and completed by Dr. Sanjeev Sharma, Orthopedic Surgeon, overlooks his pre-existing degenerative disc disorder and how that condition was manifesting immediately before and after the collision. Furthermore, the Applicant argues that, overall, Dr. Sharma performed an entirely limited examination and collected nearly no meaningful information and that the report should be afforded little weight. The Applicant also relies on case law, which I have considered.
11The Respondent argues the Applicant has failed to provide any compelling evidence of a pre-existing condition and that a pre-existing condition alone is not sufficient to remove the Applicant from the MIG. The Respondent argues the Applicant has not pointed to evidence that a pre-existing condition prevents him from achieving maximal recovery under the MIG. The Respondent relies on the above-mentioned Insurer’s Examination, that Dr. Sharma concluded the Applicant has reached maximum medical recovery. The Respondent also relies on case law, which I have considered.
12I have turned my mind to the Applicant’s submission of his pre-existing degenerative disc disease in his lumbar spine as diagnosed in 2017. I agree with the Applicant that as his degenerative disc disease was diagnosed prior to the MVA, he has a pre-existing condition. However, while the Applicant argued the orthopedic assessment report should be given little weight, the Applicant points me to no evidence that the pre-existing condition prevents him from achieving maximal recovery under the MIG, as required for removal from the MIG under s. 18(2).
13I find the applicant has not met his onus of providing evidence from a health practitioner that a pre-existing medical condition will prevent him from achieving maximal medical recovery if he is subject to the MIG limits. Therefore, I find that the applicant has not met the two-part test under s. 18.2 of the Schedule.
14For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he suffers from a pre-existing medical condition that would prevent maximal medical recovery if he is subject to the MIG. Therefore, he is not removed from the MIG on this basis.
The Applicant is not removed from the MIG on the basis of chronic pain
15I find that the Applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment as a result of the accident that would warrant removal from the MIG.
16Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that he has chronic pain which causes a functional impairment. While not part of the Schedule, the Tribunal has generally accepted the criteria for a chronic pain condition outlined in the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. Under the AMA Guides, to demonstrate a chronic pain condition, the person must demonstrate that they likely meet three of the following six criteria:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse or family.
iii. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.
vi. Development of psychosocial sequelae after the initial accident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours.
17The Applicant submits he suffers from an accident-related chronic pain disorder which falls outside of the MIG. The applicant argues he exceeds the threshold of three out six criteria as set out in the AMA Guides for chronic pain diagnosis, namely criteria ii, iii, iv and v.
18To support his position, the Applicant submits he is excessively dependent on health care providers, spouse and family as he sought repeated attention from the hospital emergency department, his family physician’s office, treatment providers and a dentist, and that he became reliant on his roommates, and then family members, for assistance with household chores and activities including meal preparation, cleaning, property maintenance, garbage removal and laundry. The Applicant relies on the September 27, 2023, IE report, in which Dr Sharma noted the Applicant’s stated impairments, namely that he stopped performing household chores including property maintenance, garbage removal and laundry, and relies on others for assistance; that he stopped playing basketball; and suffered a reduced ability to work. The Applicant also argues a lack of significant improvement to date and relies on the June 2023 CNRs of Alain Roque, physiotherapist, and the CNRs of Dr. Huang, dentist, dated March 27, 2024, referring the Applicant for TMJ. The Applicant also submits that he no longer plays basketball and needed modified duties at his restaurant.
19The Respondent submits that the Applicant does not have a chronic pain as he does not meet the criteria as outlined by the AMA Guides. The Respondent argues the Applicant does not meet the criteria of chronic pain as there are inconsistencies in the evidence. The Respondent submits that, based on the medical evidence, the Applicant meets none of the six factors.
20The Respondent relies on the CNR’s of the Applicant’s family doctor, Dr. Abadir, the CNR’s of Alain Roque, physiotherapist, and the CNR’s of Dr. Signal, dentist. The Respondent also relies on the CNR’s of Hospital Montfort dated February 9, 2024, where the Applicant attended for an unrelated matter. The Respondent submits that the Applicant has never been diagnosed with chronic pain. The Respondent submits the Applicant reported to his physiotherapist on November 2, 2021, that since attending his dentist the clicking has disappeared and his jaw is feeling great; and on November 21, 2022, the applicant reported to his physiotherapist that he started a new job. On August 1, 2023, Dr. Signal discussed with the Applicant that his jaw was opening normally, and there are no discernable abnormalities of his TMJ function. Dr. Signal hypothesized the Applicant may have a nocturnal bruxism habit causing some stress and strain in the joint and muscles that could be treatable with a nightguard. On February 29, 2024, the applicant reported during a gastroenterology appointment at Hospital Montfort that he goes to the gym twice weekly.
21I find that the applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident. The applicant has not also demonstrated that he is functionally impaired by pain. My reasoning is based on the following findings.
22First, the Applicant primarily pointed me to excessive dependence on healthcare providers as a result of his injury in the MVA. Though the Applicant submits he had a 2024 TMJ diagnosis, it is not clear that the TMJ resulted from the MVA. In any event, the CNRs indicate the pain had resolved, that the Applicant reported feeling great, and that TMJ abnormalities were not discernable. The Applicant did not point me to corroborating evidence of dependence on a spouse or his family. I find the Applicant does not meet the criteria of excessive dependence on health care providers, spouse or family.
23The Applicant’s remaining three AMA Guide claims are only self reported and lack corroborating evidence, and the Respondent has pointed me to inconsistencies, which I find indicate the Applicant does not meet the requirements of the AMA Guides.
24While the applicant withdrew from playing basketball, the Applicant submitted that two-months post accident he was further diagnosed with degenerative disc disease in his cervical spine, not attributed to the MVA. Despite his withdrawal from basketball, and his further degenerative disc disease diagnosis, the Applicant remains engaged in physical activity, working out twice a week. Because the Applicant remains physically active, I find the Applicant does not meet the criteria of secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.
25The Applicant has continued to work full-time since the accident and reported that he gained new employment. For this reason, I find the Applicant does not meet the criteria of withdrawal from social milieu, including work, recreation, or other social contracts.
26The Applicant submits that his type of work pre-MVA was not sustained and a type of recreation pre-MVA was not sustained. I did consider these submissions. I give more weight to the Applicant’s submissions that he is working post-MVA and doing another recreational activity post-MVA. I find the Applicant does not meet the criteria of failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.
27For the reasons set out above, I find on a balance of probabilities that the applicant does not suffer from chronic pain with a functional impairment as a result of the accident and therefore he is not removed from the MIG on this basis.
It is not necessary to consider the treatment plan for physiotherapy
28As I have found that the applicant remains within the MIG, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
30For the reasons outlined above, I find:
i. The Applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. As the Applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary; and
iii. The Applicant is not entitled to interest.
Released: April 10, 2026
Gordon Stencell
Adjudicator