Licence Appeal Tribunal File Number: 24-000644/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:
Intisar Idris
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
David Raposo, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Intisar Idris, the applicant, was involved in an automobile accident on February 19, 2022, 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.
ISSUES
2The issues in dispute are:
i. Are the applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit for a minor injury?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from March 19, 2022 to February 19, 2024?
iii. Is the applicant entitled to medical benefits recommended by Activa Kitchener in the amount of $195.15 ($1,250.00 less $1,100.00 approved) for a chiropractic treatment plan, dated June 30, 2022;
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to costs?
3The applicant sought costs on this application in her submissions. Under Rule 19.2 of the Licence Appeal Tribunal Rules, 2023, since this request was made in writing before the decision is released, the issue was added above.
RESULT
4The applicant’s injuries are predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the MIG and the $3,500.00 funding limit for a minor injury. As the applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary. The applicant is not entitled to a NEB or to interest. The respondent is not liable to pay an award or costs. The application is dismissed.
ANALYSIS
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 MIG limit?
5I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.
6Section 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.”
7An 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 medical 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 is on the applicant.
8The applicant did not address the MIG test above or identify on what ground they are seeking removal from the MIG. The applicant refers me to a Disability Certificate (“OCF-3”), by Dr. Michael Bradford, Chiropractor, dated April 21, 2022, which lists the applicant’s injuries as:
i. Sprain and strain of thoracic spine
ii. Sprain and strain of ribs and sternum
iii. Sprain and strain of lumbar spine
iv. Sprain and strain of sacroiliac joint
v. Concussion
vi. Whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs
9The applicant also referred me to the clinical notes and records (“CNRs”) of Activa Kitchener Clinic between April 8, 2022, and November 8, 2022, noting the applicant’s complaints of pain in the lower back, neck, and shoulder. I was not referred to compelling medical evidence of chronic pain with a functional impairment that may warrant removal from the MIG.
10The respondent argues the applicant suffered minor injuries and that the reference to a concussion should be given little weight because a concussion diagnosis is outside the scope of chiropractors and physiotherapists that made the notation in the CNRs and the OCF-3. I am persuaded by this argument and give the concussion notation no weight predominantly for two reasons. First, because only three types of practitioners are regulated in Ontario to make a diagnosis of concussion: a physician, nurse practitioner, or neuropsychologist. Vigliotti v Echelon Insurance Company, 2024 CanLII 2639 (ON LAT), at para 15. Second, I note that the applicant did not make submissions arguing that the notation of concussion relates to the test for removal from the MIG.
11The respondent further submits that there are no treatment records beyond November 8, 2022, and no further treatment has been sought by the applicant anywhere since then. The respondent also refers me to the plan in dispute stating that the applicant’s injuries are predominantly minor in the opinion of the applicant’s treating chiropractor. I find this persuasive and note that the OCF-3 expects the applicant’s disability to last 9-12 weeks.
12The onus at this hearing is on the applicant. The applicant has not addressed in submissions the legal test for removal from the MIG or referred me to evidence addressing removal. While the applicant’s list of injuries includes notation of a concussion, that notation is made by practitioners that are not qualified to diagnose a concussion, so I give it no weight. While there are complaints of pain, the applicant has not led compelling medical evidence establishing chronic pain with a functional impairment.
13For the reasons above, I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.
Is the applicant entitled to a NEB?
14I find that, on a balance of probabilities, the applicant is not entitled to a NEB.
15Section 12(1) 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.
16In the OCF-3, Dr. Bradford opines that the applicant suffers a complete inability to carry on a normal life and notes, “Increased difficulty with [ADLs] due to pain, headaches, dizziness.” Also, that the applicant suffers a substantial inability to engage in the caregiving, housekeeping, and home maintenance activities she engaged in at the time of the accident and that she is unable to continue her education. Dr. Bradford opined the anticipated duration of this disability to be between 9-12 weeks and that no further examination, investigations or consultations are contemplated or required.
17The applicant makes a general argument for entitlement, referring me to the Disability Certificate and CNRs reviewed above. The respondent argues and I find that I do not have corroborating evidence that the applicant suffered a complete inability to carry on a normal life for any period after the accident that could assist me. I find that, I was not referred to any evidence corroborating that the applicant was taking part in an educational program pre-accident or any meaningful details of such a program. I also was not referred to corroborating evidence that she could not continue the program for any period post-accident. I give little weight to Dr. Bradford’s opinion because I do not have compelling evidence to corroborate his opinions, and I do not have particulars as to how he came to his conclusions. I was not referred to evidence that may establish whether Dr. Bradford’s conclusions are based on an assessment of the applicant’s functional abilities or if they are based solely on the applicant’s self-reporting.
18The respondent also argues the applicant is time-barred from seeking a NEB. The applicant’s date of accident is February 19, 2022. The OCF-3 is dated April 21, 2022, but was provided to the respondent for the first time on August 9, 2024. The respondent also points to deficiencies in the OCF-3 relating to missing signatures, but it is not necessary to assess its completeness in this case. The respondent relies on s. 36(2), 36(3) and 12(3)(c) of the Schedule.
19S. 36(2) and (3) state that an applicant must submit a completed OCF-3 when applying for a NEB and that the applicant is not entitled to a NEB until a completed OCF-3 is submitted. In this case, the applicant submitted an OCF-3 approximately 128 weeks after the accident and therefore could not be eligible for a NEB prior to the submission date. Section 12(3)(c) states that the respondent is not required to pay a NEB beyond 104 weeks after the accident. Since the duration of a NEB is limited to the first 104 weeks post-accident, the respondent is not required to pay a NEB after receiving the OCF-3 at approximately 128 weeks post-accident. The applicant did not address these shortcomings.
20For the reasons above, I find that, on a balance of probabilities, the applicant is not entitled to a NEB.
Is the applicant entitled to $195.15 ($1,250.00 less $1,100.00 approved) for a chiropractic treatment plan?
21The applicant has been found to be subject to the MIG limit and therefore it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
Interest
22There are no overdue benefits to which the applicant is entitled. For this reason, the applicant is not entitled to interest because interest applies on the payment of overdue benefits pursuant to s. 51 of the Schedule.
Award
23The 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. Since there are no benefits on this application to which the applicant is entitled that were unreasonably withheld or delayed, no award is payable.
Costs
24The applicant seeks an order for costs. Rule 19 deals with requests for costs. The applicant’s submissions do not address the requirements of Rule 19, including the amount sought and the particulars of the request. For these reasons, the respondent is not liable to pay costs.
ORDER
25For the above reasons, I make the following orders:
i. The applicant’s injuries are predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the MIG and the $3,500.00 funding limit for a minor injury.
ii. The applicant is not entitled to a NEB of $185.00 per week from March 19, 2022 to February 19, 2024.
iii. As the applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
iv. The respondent is not liable to pay an award or costs.
v. The applicant is not entitled to interest.
Released: October 29, 2025
Amar Mohammed
Adjudicator