Alshawaf v. Co-operators General Insurance Company, 2025 CanLII 116965

Citation: Alshawaf v. Co-operators General Insurance Company, 2025 ONLAT 24-002256/AABS

Licence Appeal Tribunal File Number: 24-002256/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:

Nisreen Alshawaf

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Bianca Crocetti, Paralegal

For the Respondent: Laura Emmett, Counsel

HEARD: By way of written submissions

OVERVIEW

1Nisreen G. Alshawaf (“the Applicant”) was involved in an automobile accident on August 7, 2022, and sought benefits from Co-operators General Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Are the Applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 limit for a minor injury?

2. Is the Applicant entitled to non-earner benefits (“NEBs”) in the amount of $185.00 per week, for the period from May 15, 2023, to August 7, 2024?

3. Is the Applicant entitled to a medical benefit in the amount of $3,285.00 for physiotherapy services proposed by Scarborough Rehab and Physio in a treatment plan/OCF-18 (“plan”), dated April 24, 2023?

4. Is the Applicant entitled to a medical benefit in the amount of $467.80 for other assistive devices, proposed by Q Medical in a plan dated August 14, 2023?

5. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment, proposed by Scarborough Physio & Rehab in a plan dated May 1, 2023?

6. Is the Applicant entitled to the assessments proposed by Q Medical, as follows:

i. $2,260.00 for an attendant care assessment, in a plan dated August 14, 2023;

ii. $2,775.28 for a chronic pain assessment, in a plan dated March 16, 2023; and

iii. $2,775.28 for a neurological assessment, in a plan submitted March 16, 2023?

7. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The Applicant’s injuries are predominantly a minor injury and she is subject to the MIG and the $3,500.00 funding limit for a minor injury.

4The Applicant is not entitled to the plans in dispute because they propose goods and services that fall outside the MIG and beyond the $3,500.00 funding limit for a minor injury.

5The Applicant is not entitled to NEBs.

6No interest or award is payable.

BACKGROUND

7The Applicant was the front seat passenger of a vehicle that was struck on the front passenger-side near the bumper. She sought no medical attention on the date of the accident, but met with her family physician, Dr. A. Al-Hellawi, five days later, on August 12, 2022, and complained of neck, back, shoulder joint, and leg pain, as well as headaches, decreased sleeping, nightmares, and irritability. Dr. Al-Hellawi diagnosed the Applicant with soft-tissue injuries and made no treatment recommendations.

8The Applicant seeks entitlement to treatment outside of the MIG and the $3,500.00 funding limit for a minor injury. For the following reasons, I find that she has not met her onus to demonstrate that her injuries are more than sequalae of a minor injury.

ANALYSIS

Minor Injury Guideline (“MIG”)

9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

No evidence demonstrated a pre-existing condition impacts recovery

11I find that the Applicant has not demonstrated that she suffers from a pre-existing condition which would preclude her maximal recovery if subject to the MIG and the $3,500.00 funding limit for a minor injury.

12The CNRs from Dr. Al-Hellawi do not indicate that the Applicant suffers from a pre-existing condition that would impact her recovery if she is subject to the MIG. The CNRs note that the Applicant suffered from pre-existing knee, wrist, feet, and back pain in the year prior to the accident. Imaging in July 2022 showed that the Applicant demonstrated signs of degenerative changes in her wrists, but no significant abnormality in her knees. On August 4, 2022, the Applicant complained of headaches and insomnia to Dr. Al-Hellawi. However, none of these issues are mentioned or referred to by Dr. Al-Hellawi during the post-accident assessment of the Applicant. It is likely that Dr. Al-Hellawi’s notes would indicate if the Applicant had a pre-existing condition that would preclude her recovery. Otherwise, the Applicant has not directed me to any pre-existing issue or condition which could possibly impact her recovery if subject to the MIG.

13Accordingly, I find on a balance of probabilities that the Applicant has not demonstrated that she suffers from a pre-existing condition which would preclude her maximal recovery if subject to the MIG.

No persuasive evidence of an accident-related psychological injury

14I find that the Applicant has not demonstrated that she suffers from a psychological injury as a result of the accident.

15I prefer the opinion of Dr. R.B. Hines, psychiatrist, in the report dated April 25, 2023. Dr. Hines highlighted how many of the Applicant’s psychological complaints were inconsistent with observations throughout the assessment. For example, the Applicant reported memory and concentration issues, but Dr. Hines found no evidence of difficulty with word finding or memory, other than when recalling details of the subject accident. In another example, Dr. Hines noted that the Applicant reported low energy but exhibited no signs of lethargy or fatigue as the interview progressed. Similarly, the Applicant reported being unsocial to Dr. Hines, but also reported interacting with her immediate family and being in contact with her extended family overseas.

16To me, Dr. Hines’ report and conclusions are consistent with the CNRs of Dr. Al-Hellawi, which do not indicate accident-related psychological impairments. During the first post-accident visit, the Applicant reported irritability, but never made any psychological or mood complaints thereafter to cause Dr. Al-Hellawi to prescribe psychotropic mediation or refer the Applicant to a specialist. Dr. Al-Hellawi’s CNRs also document an incident in December 2023, when the Applicant was admitted to the hospital on account of mental and behavioural issues that are unrelated to the accident. The hospital records state that the Applicant was admitted to the hospital following an argument with her husband, but there is no mention of the accident within the records or other records contemporaneous to the incident. The records from that hospital visit note that it was a situational crisis related to her familial situation. There is no mention of or reference to the subject accident in the records form the event.

17I give little weight to the psychological report, by Dr. K. Peplinskie, psychologist, dated August 26, 2024. Dr. Peplinskie relied entirely on the Applicant’s account of her accident and post-accident health, despite those accounts being different than the contemporaneous records. For example, the Applicant reported hitting her head and left leg on the dashboard, but Dr. Al-Hellawi’s CNRs do not include any reference to a head or knee injury. Similarly, the Applicant denied any pre-accident medical conditions and reported that she was in good health prior to the accident. In contrast, Dr. Al-Hellawi’s CNRs demonstrate that the Applicant was investigating ongoing joint and knee pain, bilateral wrist pain, back pain, headaches and insomnia all prior to the accident. Additionally, the Applicant reported the onset of insomnia symptoms following the accident, yet she complained of the same symptoms to Dr. Al-Hellawi on August 4, 2022, less than a week prior to the accident. Overall, I find that Dr. Peplinskie’s report has limited weight because it lacks the critical analysis required to reconcile the Applicant’s self-reports with the historical medical records that contrast those reports.

18I give little weight to the comment by Dr. A. Mustafa, in the neurological assessment report, dated May 25, 2023. Dr. Mustafa opined that the Applicant had signs of depression and anxiety and that her prognosis for recovery is guarded due to psychological issues. Identifying and addressing psychological impairments is generally outside of the scope of a neurologist. In addition, Dr. Mustafa gives no consideration for the Applicant’s adjacent life stressors such as the cycling fall following the accident which led to her attending the hospital and receiving stitches in her head, or the apartment fire that forced her family to move to a temporary location that does not properly accommodate them.

19When considering the Applicant’s psychological impairments, I also give little weight to the chronic pain assessment report by Dr. M. Goldstein, family physician, dated June 7, 2023. In the report, Dr. Goldstein notes that the Applicant reported ongoing feelings of depressed mood, anxiety, inability to visit family and friends, and fear of travelling in a vehicle. Dr. Goldstein relies almost entirely on the Applicant’s self-reports which exclude any report of the cycling accident, and her pre-existing investigations into her wrist, knee, and back pain. None of these factors appear to have been considered by Dr. Goldstein and, instead, all the Applicant’s impairments are attributed solely to the accident.

20Overall, I find no persuasive evidence indicating that the Applicant suffers from accident-related psychological or mental and behavioural issues as a result of the accident.

No persuasive evidence of an accident-related neurological impairment

21I find that the Applicant has not demonstrated that she suffers from an accident-related neurological injury, or a concussion, as a result of the accident.

22I give the most weight to the CNRs of Dr. Al-Hellawi, which do not indicate that the Applicant suffered a concussion, or from neurological impairments, following the accident. The contemporaneous records of Dr. Al-Hellawi do not include any reference that the Applicant hit her head in the accident, or that she suffered a concussion or concussion-like symptoms following it. If the Applicant indeed sustained a concussion, I find it more likely than not that it would be as a result of the cycling accident which occurred shortly after the accident in which the Applicant hit her head and went to the hospital to receive stiches.

23I give no weight to the report of Dr. A. Mustafa, neurologist, dated May 24, 2023. The Applicant refers to this report in which she was diagnosed with a concussion and/or post-concussion syndrome and suggests that she should not be subject to the MIG and the funding limit as a result of the diagnosis. I give no weight to this diagnosis in light of Dr. Al-Hellawi’s CNRs. Dr. Mustafa’s report fails to give any consideration for the lack of concussion-related complaints following the accident, and for the cycling fall in which the Applicant hit her head and required stitches. The Applicant never attended at the hospital following the accident, but the cycling accident was significant enough to cause the Applicant to go to the hospital following it and get head x-rays. To me, failing to address the cycling accident and lack of concussion symptoms in Dr. Al-Hellawi’s CNRs is fatal to the overall persuasiveness of Dr. Mustafa’s report.

24Accordingly, I find that the Applicant has not demonstrated that she sustained a concussion or a neurological impairment as a result of the accident.

Chronic Pain

25I find that the Applicant has not demonstrated that she suffers from a chronic pain condition which warrants treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.

26While it is not part of the Schedule, the Tribunal has generally accepted the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”) when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability. Alternatively, the Tribunal has accepted that chronic pain is not a minor injury when the pain causes an ongoing functional impairment.

27The Applicant submits that she was diagnosed with chronic pain by Dr. Al-Hellawi and that her pain warranted prescriptions for knee and back supports on February 1, 2023, and referrals for physiotherapy and massage therapy on March 26, 2023. The Applicant also submits a chronic pain assessment report, dated June 7, 2023, by Dr. Goldstein, which concludes that she meets the criteria for a chronic pain condition.

28The Respondent submits that ongoing pain complaints are insufficient to find that a person suffers from a chronic pain condition that warrants treatment beyond the MIG. It highlights that the pain must impact the Applicant’s functionality for consideration of a chronic pain condition and that is not the case here.

29I find that Dr. Al-Hellawi’s CNRs do not indicate on a balance of probabilities that the Applicant suffers from a chronic pain condition which warrants treatment outside of the MIG and the $3,500.00 funding limit for a minor injury. The Applicant’s post-accident pain complaints outlined in Dr. Al-Hellawi’s CNRs are similar in nature to her pre-accident complaints. As previously noted, the Applicant had ongoing pain in her knees, wrists, feet, and back. These complaints continued following the accident, but do not rise to a level that the pain impairs her. While Dr. Al-Hellawi has characterized the Applicant’s pain as “chronic pain”, it appears to be based on the duration of her complaints and not related to a psychological or functional impairment or a diagnosis in accordance with the AMA Guides.

30To me, it is clear from the evidence that the Applicant does not meet the criteria outlined in the AMA Guides. There is no evidence before me to suggest that the Applicant is abusing drugs or using drugs beyond the recommended use. The Applicant has complained of irritability, depression and anxiety, but her family physician has not prescribed her any medication for psychological issues and has not referred her to any specialists for further investigation. The Applicant reports independence with her personal care and does not exhibit dependence on any health care providers or family, and there is no indication in any of the Applicant’s medical records that she is experiencing physical deconditioning due to disuse or a failure to restore her pre-accident function.

31While the Applicant reports a withdrawal of her social milieu, the evidence indicates that she commenced or returned to work in some capacity following the accident. The investigation report, dated December 30, 2022, included video and pictures of the Applicant attending at a bakery and performing tasks akin to employment on two of the five days of surveillance in December 2022. The Applicant had an opportunity to refute this evidence but chose to leave it unaddressed. The information in the surveillance reports demonstrates that the Applicant is not functionally impaired from pain, as it shows she can engage in prolonged standing and complete physical tasks using her arms. The surveillance evidence also shows that the Applicant is not forthcoming with her reporting to assessors as she never reported to any healthcare provider that she returned to work or began employment following the accident.

32Accordingly, I find that the Applicant had not demonstrated that she suffers from a chronic pain condition which warrants treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.

The treatment and assessment plans are not reasonable and necessary

33I find that the denials in relation to the plans are compliant with the Schedule. I also conclude that the plans in dispute are not reasonable and necessary as a result of the accident.

34The Applicant submits that denials are boilerplate and fail to provide medical reasons for the decisions. She infers that they are payable as a result of the Respondent’s failure to comply with the response provisions outlined in section 38 of the Schedule. The Respondent refutes the Applicant’s claim and submits that she has not identified the non-compliant denials, nor identified the deficiencies in them.

35I find the denials submitted by the Applicant to be compliant with the Schedule. The Applicant submitted denial letters dated March 30, May 15, May 26, September 6, October 10, 2023, and October 11, 2024. All these letters are compliant with the Schedule. All the letters clearly and unequivocally deny funding for the plans and provide medical and other reasons with reference to the Applicant’s medical records or IE reports. I cannot conclude that the denials submitted by the Applicant fail to comply with section 38 of the Schedule.

36The plans in dispute seek funding for treatment outside of the MIG and beyond the $3,500.00 funding limit for a minor injury. Having found that the Applicant sustained a minor injury, it follows that she is not entitled to the plans in dispute.

Non-Earner Benefits (“NEBs”)

37I find that the Applicant has not demonstrated that she suffers a complete inability to carry on a normal life as a result of the accident.

38Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to her activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

39The Applicant submits that she has demonstrated that she suffers a complete inability to carry on her normal life as a result of the accident because she reported severe and limiting pain to healthcare providers, reported an inability to perform housekeeping and home maintenance, grocery shopping, difficulty standing, and a reduction in her socialization. The Respondent submits that the Applicant’s submissions do not make any attempt to show that she is disabled from substantially all her pre-accident activities as a result of the accident.

40I find that the Applicant has not demonstrated that her accident-related injuries preclude her from completing substantially all her pre-accident activities. The Applicant has not directed me to any evidence to support her claim. More importantly, the Applicant’s medical records do not indicate that she is functionally impaired from completing her pre-accident tasks. Throughout the entirety of the Applicant’s medical records and reports it indicates that she has functional range of motion throughout her body. This is supported by the surveillance report, dated December 30, 2022, which shows the Applicant living a normal life – she walks to and from school with her children, she takes transit to her classes, and has commenced or resumed employment at a bakery following the accident.

41Accordingly, I find that the Applicant has not demonstrated that she suffers a complete inability to carry on a normal life.

Interest

42Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

Award

43I find that the Applicant is not entitled to an award.

44The Applicant sought an award under section 10 of Regulation 664 but provided no particulars of her claim. Under section 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.

45An award must be connected to unwarranted withholding or delay of payment on behalf of the Respondent. Having tendered no submissions or evidence on the Respondent’s behaviour or whether any benefits were withheld or delayed, it follows that the Applicant had not met her onus to demonstrate entitlement to an award.

CONCLUSION AND ORDER

46The Applicant sustained a minor injury as a result of the accident.

47The Applicant is not entitled to the treatment plans in dispute because they propose goods and services that fall outside of the MIG and beyond the $3,500.00 funding limit for a minor injury.

48The Applicant is not entitled to NEBs.

49No interest or award is payable.

50The Application is dismissed.