Licence Appeal Tribunal File Number: 20-014845/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:
Mohammad Nazzal
Applicant
and
Intact Insurance
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Alexei Antonov, Counsel
For the Respondent: Tom Yen, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mohammad Nazzal, the applicant, was involved in an automobile accident on August 2, 2019, 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, 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 treatment and assessments proposed by LV Rehabilitation Clinic Inc. as follows:
a) $1,895.75 for chiropractic services, in a treatment plan submitted on December 1, 2020; and
b) $2,200.00 for a psychological assessment, in a treatment plan submitted on October 14, 2020?
iii. Is the applicant entitled to $2,000.00 for a neurology assessment proposed by Downsview Healthcare Inc., in a treatment plan submitted on February 3, 2021?
iv. Is the respondent liable to pay an award under s. 10 of O. 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
3The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG. The applicant is not entitled to the treatment plans in dispute, interest or an award.
PROCEDURAL ISSUES
Improper Reply Submissions
4By Notice of Motion, dated February 19, 2025, the respondent requested permission from the Tribunal to submit surreply submissions in response to the applicant’s reply submissions. The respondent submits that it followed the instructions from the Tribunal in bringing a Notice of Motion. It claims that at paragraphs 5-7 of the applicant’s reply submissions, he raises the issue of the duty of the insurer under s. 38(8) of the Schedule. The respondent submits that this is a novel argument never before raised by the applicant and it is improper for the applicant to make submissions on a new issue in his reply submissions. The respondent further submits that the applicant is making bald allegations that the respondent breached s. 38(8) of the Schedule which it denies. The respondent states that the applicant did not identify which treatment plan he is raising the argument about and failed to set out the deficiencies in the denial. The respondent submits that paragraphs 5-7 of the applicant’s reply submissions should be struck.
5The applicant submits that the respondent filed its Notice of Motion on February 20, 2025, which was one day prior to the Written Hearing date of February 21, 2025. He argues that as per ss. 15.2 of the Common Rules of Practice & Procedure, a party filing a Notice of Motion must do so at least 10 days in advance of a hearing. The applicant further submits that he did not bring new evidence or add a new issue or claim in its submissions, as he merely described how the respondent assessed the applicant’s medical treatment plans and expert reports with a closed mind. In the alternative, he argues that if the Tribunal finds that this was a novel issue, he raised this issue in response to the respondent’s submissions.
6It is well settled that the purpose of reply submissions is for the party who bears the onus in the dispute to respond to any issues that were raised in the opposing party’s submissions, which could not have been reasonably raised in initial submissions. Reply submissions do not present an opportunity to raise new issues that should have been addressed in initial submissions.
7I find at paragraphs 5-7 of the applicant’s reply, that he raises the duty of the respondent under s. 38(8) of the Schedule. He sets out that the respondent breached s. 38(8) of the Schedule because it denied the applicant’s claim not on the basis of assessments of medical professionals, but on personal beliefs and convictions of their administrative employees. I find that the applicant did not raise the issue of s. 38(8) of the Schedule in his initial submissions and therefore he is not entitled to raise the issue in his reply submissions. I find that it would be procedurally unfair pursuant to Rule 3.1(a) of the Tribunal’s Common Rules of Practice & Procedure for me to consider these submissions, as the respondent does not have the right of further reply.
8I find that even if I had allowed the submissions, the applicant has not directed the Tribunal to which treatment plans it refers to or what the specific deficiencies are in the notice letters.
9I further find that the respondent followed the direction of the Tribunal in raising this issue in a Notice of Motion, which I find to be the proper procedure in this matter. Subsection 15.2 states that “A party may have a motion heard at a case conference or hearing, provided the party files the Notice of Motion and all supporting materials with the Tribunal at least 10 days in advance, or in accordance with any other schedule as may be determined by the Tribunal..”. I find the fact the Tribunal directed the respondent to file a motion, supports that the Tribunal determined this to be acceptable.
10For the reasons outlined above, I find that paragraphs 5-7 of the applicant’s reply submissions are struck and will not be considered when rendering my decision on the substantive issues.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
11I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.
12Section 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.”
13An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.
14In this matter, the applicant submits that he should be removed from the MIG based on his pre-existing medical condition, which he argues was exacerbated by the accident and would preclude his maximal recovery. He further submits that he should be removed from the MIG because he suffered a concussion, chronic pain and a psychological impairment.
a. The applicant is not removed from the MIG on the basis of a pre-existing medical condition
15I find on a balance of probabilities, that the applicant does not suffer from a pre-existing medical condition that would warrant removal from the MIG.
16The applicant submits that he should be removed from the MIG based on the injuries that he sustained in his previous accident on November 30, 2018, from which he did not fully recover at the time of the subject accident, and which were exacerbated by the subject accident such that he cannot recover if kept within the MIG. The applicant relies on the Clinical Notes and Records (“CNRs”) of Dr. Amine Attia, family physician, dated November 30, 2018 to December 6, 2018, which set out his complaints from the November 30, 2018 accident of neck, upper back, shoulder and right knee pain post-accident. He submits that his pre-accident injuries were referred to and identified as a possible barrier to recovery in Parts 7-9 of the treatment plan dated January 28, 2021. In addition, he submits that the Disability Certificate dated August 14, 2019, refers to the previous accident in Part 8, acknowledging the effect on the applicant’s ability to perform his employment tasks, to carry on a normal life and to perform housekeeping tasks. The applicant further submits that the report of Dr. Erin Langis, psychologist, dated March 12, 2021, notes that the applicant’s pre-existing pain symptoms worsened after the subject accident.
17The respondent submits that the records of the applicant’s family physicians, Dr. Attia and Dr. Hussein Amin, do not mention that the applicant suffered any pre-existing conditions preventing him from achieving maximal recovery from a minor injury if subjected to the MIG limits. The respondent further submits that upon review of Dr. Attia’s CNRs, no complaints were made by the applicant beyond the December 3 and 6, 2018 initial visits following the November 30, 2018 accident. The respondent argues that with respect to the report of Dr. Langis, this report was prepared with respect to the November 30, 2018 accident, not the subject accident.
18I find that the last CNR of Dr. Amin provided in respect of his pre-existing injuries is dated December 18, 2018. There are no further CNRs provided documenting what complaints if any he suffered at the time of the subject accident. I further find that even if I were to accept that the applicant has provided documented evidence by a health practitioner of a pre-existing medical condition as a result of the November 30, 2018 accident, 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, as required by s. 18(2).
19The treatment plan dated January 28, 2021, at Part 7, in answer to the question, “Prior to the accident, did the applicant have any disease, condition or injury that could affect his/her response to treatment for the injuries identified in Part 6?”, it notes that the applicant was involved in a previous accident in November 2018. Upon review of the Disability Certificate, dated August 14, 2019, it notes under Part 8, that the applicant was involved in a previous accident in 2018. I find that while both documents indicate that the applicant was involved in a previous accident, neither the treatment plan nor the Disability Certificate provide any further particulars about the applicant’s pre-existing injuries nor the impact of that accident on the injuries he suffered in the subject accident. In any case, there is no medical opinion to support that his pre-existing condition was exacerbated or would prevent recovery under the MIG.
20For the reasons outlined 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 and therefore he is not removed from the MIG on this basis.
b. The applicant is not removed from the MIG on the basis of a concussion
21I find that the applicant has not demonstrated that he suffered a concussion that would warrant removal from the MIG.
22I find that the applicant has provided insufficient evidence to support his claim that he suffered a concussion as a result of the subject accident. I find that the applicant has not pointed the Tribunal to any medical evidence in the hospital records or the CNRs of the applicant’s family physicians and LV Rehabilitation, that mention or diagnose the applicant with a concussion as a result of the subject accident. I find that the hospital records dated August 2, 2019 note no loss of consciousness or head injury. I find upon review of the CNRs of Dr. Amin, that there is no mention of any headaches until October 3, 2020, over a year following the accident. There is no subsequent follow up with Dr. Amin until August,19, 2021, when the applicant reports that he has headaches for two years and he is diagnosed with migraines.
23I further find that the only mention of post-concussion syndrome is in the Neurological Evaluation Report completed by Dr. Vincent Santo Basile, dated March 2, 2021, which was prepared with respect to the November 30, 2018 accident. Dr. Basile stated that the applicant noticed that his headaches worsened after the second accident. I find that Dr. Basile did not provide an opinion as to whether the applicant suffered a concussion as a result of the subject accident and his assessment was for the November 30, 2018 accident, which is not before me.
24I find that the applicant has not pointed the Tribunal to any medical evidence to support a diagnosis of concussion as a result of the subject accident.
25For the reasons outlined above, I find on a balance of probabilities that the applicant is not removed from the MIG on the basis of a concussion.
c. The applicant is not removed from the MIG on the basis of chronic pain
26I find that the applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.
27Chronic 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 his pain causes a functional impairment which adversely affects his well-being.
28The applicant submits that he should be removed from the MIG because he suffers a chronic pain condition as a result of the accident. While the applicant has provided a summary of the medical documentation that he is relying upon, the applicant has not provided specific submissions to support his position that he suffers a chronic pain condition or functional impairments as a result of his accident-related pain.
29The respondent submits that to be removed from the MIG for chronic pain, the applicant must establish his pain is a diagnosed condition. It submits that the pain must be continuous or of such severity that it causes distress accompanied by a functional impairment or disability. The respondent submits that the applicant has not satisfied this test.
30I find that the applicant has provided insufficient evidence to support that he suffers from chronic pain with a corresponding functional impairment as a result of the subject accident. I find that the applicant has not directed me to any medical evidence where a medical practitioner has provided a diagnosis of chronic pain in respect to the subject accident.
31I find that the neurological evaluation report of Dr. Basile, dated March 2, 2021, was prepared in respect to the November 30, 2018 accident. I find upon review of this report that Dr. Basile did not make any findings in respect to the subject accident except to note that the applicant reported an exacerbation of his symptoms after the subject accident.
32I find that the psychological report of Dr. Langis, dated March 12, 2021, was also prepared for the November 30, 2018 accident. No findings were made by Dr. Langis regarding the subject accident except to note that the applicant reported that his pre-existing pain symptoms worsened.
33For the reasons outlined above, I find on a balance of probabilities that the applicant does not suffer from a chronic pain condition as a result of the subject accident and therefore is not removed from the MIG on this basis.
d. The applicant is not removed from the MIG on the basis of a psychological condition
34I find that the applicant has not demonstrated that he suffers from a psychological condition that would warrant removal from the MIG.
35The applicant submits that he suffers a psychological impairment as a result of the accident. He relies upon the psychological pre-screening report completed by Angela D’Unian, M. Psych., who was working under the direct supervision of Dr. Nina Belyakova, clinical psychologist, dated September 30, 2020. Ms. D’Unian provided a provisional diagnosis of other specified trauma and stressor-related disorder (adjustment like disorder with prolonged duration of more than six months without a prolonged duration of stressor) and specific phobia, situational. She recommended a psychological assessment.
36The applicant further relies upon the psychological report of Dr. Langis, dated March 12, 2021, where the applicant was diagnosed with other specified trauma-and-stressor-related disorder (adjustment-like disorder with prolonged duration of more than six months) and somatic symptom disorder, with predominant pain, persistent (moderate).
37The respondent submits that there is little to no mention of any post-accident psychological complaints in the CNRs of the family doctors. With respect to the pre-screening report of Ms. D’Unian, the respondent submits that there is no indication that she reviewed any medical records. It submits that during the pre-screen, the applicant complained of the exact same psychological symptoms he reported from the prior November 30, 2018 accident. It argues that there is little indication of any meaningful exacerbation of his psychological condition from the subject accident. In addition, the diagnoses of Ms. D’Unian were on a provisional basis, made following a preliminary interview, the specifics of which are not identified.
38The respondent submits that with respect to the report of Dr. Langis, dated March 12, 2021, that this assessment was conducted in relation to the November 30, 2018 accident, not the subject accident. It submits that Dr. Langis made no diagnosis in respect to the subject accident.
39I find that the applicant has provided insufficient evidence to support that he suffers a psychological impairment as a result of the subject accident.
40I give little weight to the pre-screening report of Ms. D’Unian because she notes in her report that, “Mr. Nazzal reported that there were no concurrent non-accident-related stressors or pre-existing mental health history that may be contributing to his reported emotional disturbance. Mr. Nazzal stated that his mental health prior to the accident was excellent, and he has not experienced any previous mental or emotional health problems”. I find that the applicant did not report his previous involvement in the November 30, 2018 accident or his pre-existing mental health problems to Ms. D’Unian. I find that this is inconsistent with the report of Dr. Langis which diagnosed him with psychological injuries solely as a result of the November 30, 2018 accident. I find that the pre-screening report cannot be relied on when there is a clear omission of pertinent information on which the report was based on. I find that there is no mention at all of the applicant’s previous accident in the report.
41As stated above, I further find that the report of Dr. Langis was prepared in respect of the November 30, 2018 accident and did not provide any opinion with respect to any psychological injuries suffered by the applicant in the subject accident.
42For the reasons outlined above, I find on a balance of probabilities that the applicant does not suffer from a psychological impairment as a result of the subject accident and therefore is not removed from the MIG on this basis.
The applicant is not entitled to the treatment plans in dispute
43As I have found that the applicant remains within the MIG, it is unnecessary for me to consider whether the disputed treatments plans are reasonable and necessary.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
45The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.
ORDER
46For 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. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to interest;
iv. The respondent is not required to pay an award; and
v. The application is dismissed.
Released: October 3, 2025
Melanie Malach
Adjudicator