Mohamed v. The Dominion of Canada General Insurance Company (Travelers), 2025 CanLII 10784

Citation: Mohamed v. The Dominion of Canada General Insurance Company (Travelers), 2025 ONLAT 23-001696/AABS

Licence Appeal Tribunal File Number: 23-001696/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:

Jawaher Ibrahim Mohamed

Applicant

and

The Dominion of Canada General Insurance Company (Travelers)

Respondent

DECISION

ADJUDICATOR: Mary Henein Thorn

APPEARANCES:

For the Applicant: Nidhi Vinayak, Counsel

For the Respondent: Shari Hatfield, Counsel

HEARD: In Writing By way of written submissions

OVERVIEW

1Jawaher Ibrahim Mohamed, the applicant, was involved in an automobile accident on November 6, 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, The Dominion of Canada General Insurance Company (Travelers) 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 limit? At the case conference, the parties agreed the MIG limits have been exhausted.

ii. Is the applicant is entitled to a non-earner benefit in the amount of $185.00 per week denied by the respondent on April 28, 2022?

iii. Is the applicant entitled to $1,779.20 for chiropractic services, proposed by Dr. Oscar Manias of College Chiropractic in a treatment plan/OCF-18 (“plan”) dated May 31, 2022?

iv. Is the applicant entitled to $340.80 for chiropractic services, proposed by Dr. Oscar Manias of College Chiropractic in a plan dated May 31, 2022?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

3The applicant withdrew the issue of denial of income replacement benefit in a letter to the Tribunal dated November 23, 2023.

4A motion order dated December 12, 2023 granted the applicant’s request to add NEB as an issue in dispute, as set out above. The applicant’s motion to have the hearing converted to a videoconference hearing was denied.

RESULT

5The applicant has not demonstrated that her accident-related impairments warrant the removal from the MIG. She is not entitled to a non-earner benefit. As the applicant is in the MIG and the MIG limits have been exhausted, she is not entitled to the treatment plans in dispute. No interest is payable. The applicant is not entitled to a section 10 award.

PROCEDURAL ISSUES

6The respondent filed a motion with the Tribunal on May 31, 2024 seeking an order:

i. To accept and admit the written hearing submissions of the respondent that were served and filed on May 31, 2024; and

ii. To accept and admit the written hearing reply submissions of the applicant that were served and filed by the applicant on May 31, 2024.

7The respondent’s submissions were due May 17, 2024, according to the Case Conference Report and Order dated October 5, 2023.

8The respondent submits it emailed its submissions to the Tribunal on May 17, 2024, however on May 30, 2024, it received a message from the Tribunal notifying it that the respondent’s material wasn’t received.

9On May 31st the respondent resubmitted its material and re-served the applicant.

10The applicant served its reply material on May 31, 2024.

11The respondent submits that serious prejudice would be caused if the Tribunal does not accept the respondent’s submissions.

12The applicant requests the Tribunal should not accept the respondent’s late filed material. She submits that she had to rush to file her reply submissions in order to comply with the Case Conference Report and Oder. She submits she did not have adequate time to thoroughly review the respondent’s submissions and prepare a well-considered reply which she submits has caused significant prejudice to the applicant.

13I am accepting both the applicant’s and the respondent’s submissions. I find that the email receipt submitted by the respondent clearly shows an email was sent to the Tribunal and the applicant with an attachment including the respondent’s written submissions on May 17, 2024. While the applicant and the Tribunal did not receive the email, I am satisfied the respondent did comply with the Case Conference Report and Order timeline.

14While the applicant submits she suffered significant prejudice because she had to rush to craft a reply, she did file a reply and did not bring a motion requesting additional time to do so at the time. I find there would be a significant prejudice to the respondent if I were to exclude its submissions on this basis.

15I accept the submissions of the applicant and the respondent.

ANALYSIS

Minor Injury Guideline (MIG)

16I find the applicant sustained injuries which fall within the MIG.

17Section 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.”

18An 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.

19The applicant submits she has sustained psychological injuries and has ongoing pain which warrants her removal from the MIG.

20As a result of the accident, the applicant submits she was admitted to the hospital where they ran a series of tests. She reports her injuries after the accident as follows: tachycardia, neck, leg, back, shoulder and head pain, dizziness, and chest pain. She also submits she suffers from ongoing driver/passenger anxiety, low mood, appetite problems, irritable sleep, fatigue, nightmares, difficulty concentrating, irritability, anger, and memory issues. She questions if she lost consciousness at the time of accident. She also submits that she suffers psychological issues. It is her position that her psychological injuries warrant her removal from the MIG. The applicant denies having any pre-existing conditions.

21The applicant relies on the opinions of Dr. Mahabat Sulaiman, the applicant’s family doctor, and Dr. Farzana Vira, Doctor of Internal Medicine at the Mississauga Hospital. She also relies on her sworn affidavit dated November 24, 2023.

22The respondent submits that the applicant’s injuries attributed to this accident fall within the MIG. It submits that three months post-accident, her issues had resolved, and she was medically cleared.

23The applicant in her affidavit indicates she suffers from psychological issues. She submits that she has driver and passenger anxiety, she feels light-headed and nauseated, and she avoids travelling as much as possible. She complains low mood, withdrawal, irritability, and impatience.

24I find that the evidence shows that following the accident, the applicant visited Dr. Sulaiman on November 8, 2021, with complaints of headaches, stress, pain in her neck, left shoulder, right leg, and upper back. He determined her range of motion was normal and to alleviate her issues he recommended physio/massage therapy and instructed her to take over the counter Tylenol on an as needed basis. On December 2, 2021, she saw Dr. Sulaiman again, who noted in records that the applicant was feeling better, she no longer experienced headaches, and she was not experiencing any syncope attacks. He also reported that the applicant had seen Dr. Vira and the results for her cardiac, CT chest, CT head and ultrasound of the carotid tests were all normal.

25I find that while the applicant submits that she has ongoing chronic pain which affects her ability to manage her daily activities, the clinical notes and records do not reflect complaints of chronic pain, chronic pain treatment or medication. I find her doctor prescribed over the counter Tylenol to be taken on an as needed basis and her complaints had subsided within months after the accident. This supports a finding that her injuries were minor in nature.

26An entry in Dr. Sulaiman’s records on December 9, 2021, indicates the applicant has been cleared by the neurologist and cardiologist, she has no symptoms and again indicates the applicant was not having syncope before or after the accident. His notes do not indicate past reports of drowsiness and show that the patient remembers the incident. Dr. Sulaiman does not reference any ongoing complaints, nor does he make any recommendations for treatment for psychological or physical issues.

27I find that the reporting of Dr. Vira corroborates the findings of Dr. Sulaiman. Dr. Vira’s records, dated December 2, 2021, reference the accident, and indicate that although she had complaints of dizziness, some tachycardia, and chest pain and was observed in hospital, as of December 2, 2021, she was well, and her injuries had resolved. The notes indicate she is entirely asymptomatic, the ECHO and Holter test results are reassuring, and she medically cleared 27 days after the accident.

28The applicant had a phone appointment with Dr. Sulaiman February 23, 2022. She complained of low back pain and irritability. He again prescribed physio and massage therapy along with sleep hygiene, yoga, reading the Quran and medication for stress. I find that the clinical notes show that the applicant did not follow up regarding the medication to alleviate any stress symptoms following that appointment.

29Nine months later, the applicant had an appointment with Dr. Sulaiman on November 15, 2022. His records indicate that the applicant had no muscle and joint pain, no headaches, no sleep problems and that she had no numbness or weakness. He recommended sleep hygiene, stress counselling, family support and daily exercise.

30While the applicant has described ongoing psychological issues in her sworn affidavit, I find there is a lack of consistent reporting to her doctor, and a lack of medical evidence of treatment for those concerns. On February 23, 2022, she told Dr. Sulaiman that she has a fear from the accident and has irritable sleep. However, she also declined to see a psychologist. And on November 15, 2022, in Dr. Sulaiman’s clinical notes and records, he specifically says the patient has no low mood. Further, in a note dated November 15, 2022, the applicant did report to Dr. Sulaiman that she was under stress, but she attributed it to the fact that she did not pass her citizenship exam after two attempts and that her mother who lives with her has renal failure/heart problems. He recommended sleep hygiene, yoga, reading the Quran and medication for stress. The applicant did not follow up after this appointment with respect to these complaints.

31Given the totality of the evidence, I find on a balance of probabilities that the applicant has not established that she has a psychological condition as a result of the accident which warrants her removal from the MIG.

The applicant is not entitled to non-earner benefits

32Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

33The applicant takes the position that she should be entitled to a non-earner benefit. She submits that as a result of her injuries and chronic pain, she is now unable to perform her household tasks and take care of her family. She cannot play with her children or take them out to the park for recreation without feeling pain. She submits she has to push through her pain to do household chores and maintenance. She has had to outsource help for things like lawn care, snow shoveling, cooking meals, doing laundry, ironing clothes and cleaning around the house.

34The respondent submits that the applicant has not provided any medical documentation in support of her position that she is entitled to NEBs.

35The respondent submits that the applicant maintains her daily activities. It submits that on December 19, 2023, the date of the cross-examination for the applicant’s affidavit, the applicant had to leave early to pick up her children from school. It also points to a reference in Dr. Sulaiman’s clinical notes and records dated June 24, 2023, where the applicant reports to the doctor that she is under “stress because all house is on her” sic.

36In her sworn affidavit, the applicant described many of her day-to-day activities under oath. She indicated that she cooks for her children, vacuums, mops the floors, and does laundry, she walks to school to pick up her youngest child. She also indicated that there has been no change in terms of teaching her children new things in comparison to before and after the accident. She still attends teacher meetings, and now that her children are older, she doesn’t need to supervise them at the playground.

37Based on the applicant’s account of the applicant’s day-to-day activities in her sworn affidavit I find she has a fairly active life and is able to manage a substantial amount of her day-to-day activities. I find the applicant's affidavit is not supported by corroborating evidence. I find her affidavit evidence indicates that the applicant is able to continue doing her pre-accident activities, and I find on a balance of probabilities that she does not meet the test for non-earner benefits.

38Having found that the applicant remains in the MIG, the applicant is not entitled to the treatment plans in dispute as the applicant is subject to treatment within the $3,500 funding limit of the MIG and the treatment plans propose treatment beyond the limit.

Interest

39As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51.

Award

40The applicant is not entitled to an award.

41The 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.

42The applicant has the onus to prove on a balance of probabilities that the respondent unreasonably withheld or delayed payments. The applicant did not make submissions about an award. Therefore, I find she has not met her onus.

ORDER

43For the reasons outlined above, I find the applicant sustained a predominantly minor injury as a result of the accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment.

44The application is not entitled to non-earner benefits.

45The applicant is not entitled to the treatment plans.

46The respondent is not liable to pay an award.

47The applicant is not entitled to interest.

48The application is dismissed.

Released: February 13, 2025

__________________________

Mary Henein Thorn

Adjudicator