Licence Appeal Tribunal File Number: 24-004803/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:
Imad Al Karri
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Bernard Trottier
APPEARANCES:
For the Applicant: Mobina Khan, Counsel
For the Respondent: Julianne Brimfield, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Imad Al Karri, the applicant, was involved in an automobile accident on October 15, 2020, 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 Co-operators General Insurance Company, the respondent, 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?
ii. Is the applicant entitled to $3,591.50 for physiotherapy services, proposed by Physio Art Rehabilitation in a treatment plan/OCF-18 (“plan”) dated January 25, 2023?
iii. Is the applicant entitled to $3,591.50 for physiotherapy services, proposed by Physio Art Rehabilitation in a plan dated June 27, 2022?
iv. Is the respondent liable to pay an award under s. 10 of 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 has not demonstrated that his injuries are non-minor, as defined by the Schedule, and that they could not be treated within the Minor Injury Guideline (“MIG”) limit.
4Since the applicant’s injuries are considered minor, the proposed treatment plans outside of the MIG are not payable.
5An award under s. 10 of Reg. 664 is not payable.
6Since no benefits are payable, no interest is payable.
ANALYSIS
The Minor Injury Guideline limit
7The two treatment plans in dispute sought treatment outside of the MIG limit. At the case conference on September 6, 2024, the parties agreed there was $1,067.83 remaining for treatment within the MIG limit, as of that date.
8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.”
9An 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.
10The parties dispute whether the applicant has met the conditions for removal from the MIG, as a result of the accident, and whether the treatment plans in this matter are reasonable and necessary.
The applicant’s injuries do not place him outside of the Minor Injury Guideline
11I find that the applicant has not demonstrated that his injuries are non-minor, as defined under s. 3(1) of the Schedule, and that he has not demonstrated that he suffers from a chronic pain condition with functional impairment.
12The applicant submits that his injuries are severe, complex and persistent, and that the intent of the Schedule is to provide for accident benefits for the conditions he suffered.
13The applicant submits, further, that the denial letters were deficient under s. 38(8) of the Schedule, in that they did not adequately provide the medical and other reasons why the proposed treatment plans were considered not to be reasonable and necessary. The applicant seeks relief, under s. 38(11) of the Schedule, that prohibits the respondent from taking the position that the applicant has an impairment to which the MIG applies if the denials were deficient under s. 38(8).
14To support his argument that his injuries were non-minor, the applicant directed me to the clinical notes and records (“CNRs”) of Performance Physiotherapy, dated December 15, 2020, about two months post-accident. The applicant submits that the treating physiotherapist notes complaints of ongoing back and neck pain, stiffness, tension, guarded posture, decreased range of motion and pain on palpation.
15The applicant directed me further to the CNRs of Dr. Wasan Abbas, family physician, from January 25, 2022, where the applicant complained of left knee pain.
16Lastly, the applicant directed me to a radiograph report dated January 4, 2023, which indicated that the applicant suffered a fracture to his right fourth finger.
17The respondent submits that the applicant has not met his burden of providing medical evidence that his injuries are non-minor as defined under s. 3(1) of the Schedule, or of proving, on a balance of probabilities, that the proposed treatment plans are reasonable and necessary.
18The respondent submits that Performance Physiotherapy proposed treatment under the MIG on October 29, 2020, identifying sprain/strain injuries to applicant’s neck, spine, shoulder and elbow and that this treatment plan was approved on November 4, 2020. The respondent submits that the applicant was discharged from Performance Physiotherapy on February 23, 2021, approximately four months post-accident, and that the discharge report notes the applicant had full and pain-free lumbar, cervical and shoulder range of motion at the time of discharge. The respondent argues that the CNRs of Performance Physiotherapy indicate a full recovery of the applicant’s accident-related injuries within the MIG protocol.
19The respondent submits that the CNRs of Dr. Abbas do not identify any accident-related injuries, and that his note of January 25, 2022 references knee pain that had been ongoing for about six months. The respondent submits that there was no knee injury identified in the CNRs or in the discharge report of Performance Physiotherapy. The respondent argues, accordingly, that the applicant’s knee complaints are unrelated to the accident.
20Lastly, the respondent submits that the applicant’s finger fracture, identified in the January 4, 2023 radiograph report, is unrelated to the accident. The respondent directed me to a consultation report from St. Joseph’s Healthcare Hamilton that confirmed that the finger injury was a work-related injury that occurred in December 2022 when the applicant dropped a heavy box.
21The respondent submits that the applicant makes vague allegations that he suffers from severe and persistent pain. The respondent argues that, while the applicant did not make specific arguments that he suffers from chronic pain with functional impairment, any claims for removal from the MIG on the basis of chronic pain should be dismissed. The respondent submits that the applicant returned to work as a chef by December 2020 and was still working as a chef in February 2023, indicating that he did not suffer from functional impairment.
22The respondent submits that the applicant’s allegation of deficient denial letters, under s. 38 of the Schedule, are without merit because the applicant did not provide the letters as evidence in his submissions, and he did not identify any wording he believes is insufficient. Notwithstanding the lack of evidence of deficient denial letters, the respondent argues, based on Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng, Cai”), that deficient notice does not result in a finding that the MIG does not apply.
23I find that the applicant has not provided evidence that his injuries are non-minor as defined under s. 3(1) of the Schedule. In particular, I find that the CNRs of Performance Physiotherapy and of Dr. Abbas fail to mention any accident-related injuries beyond sprains and strains.
24I find the note of Dr. Abbas regarding a knee injury, and the radiograph report regarding the broken finger, are not related to the accident, because they identify injuries that were never identified in the immediate post-accident reports and CNRs. For this reason, I disregard the applicant’s claim that these injuries warrant removal from the MIG.
25I find that the applicant has not demonstrated that he suffers from chronic pain with functional impairment, because the discharge letter of Performance Physiotherapy indicated that the applicant had recovered from his injuries about four months post-accident, and because he had restored his work functions. I find that there is no basis for removing the applicant from the MIG because of chronic pain with functional impairment.
26I find that the applicant has not proffered any specific evidence of deficient notices under s. 38 of the Schedule, and I accept the respondent’s argument, based on Zheng, Cai, that any deficiencies, if demonstrated, would not result in a finding that the MIG does not apply.
27For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that his injuries are not minor and that they could not be treated within the MIG limit.
The applicant is not entitled to the funding for the proposed treatment plans
28To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
29The applicant submitted two OCF-18s for physiotherapy: one dated June 27, 2022 and one dated January 25, 2023. On each of the OCF-18s, the applicant indicated that his impairments are not minor and sought treatment outside of the MIG.
30Since I have determined that the applicant’s injuries are “minor” as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary. I note that the MIG limits have not been exhausted. At the case conference, the parties agreed that there was $1,067.83 remaining for treatment within the MIG limit. In light of my decision, the applicant may apply for further treatment within the MIG limit, subject to the treatment plans being found to be reasonable and necessary.
Award
31The 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 I have found that no benefits are payable, I do not find that the respondent unreasonably withheld or delayed payment. As a result, an award under s. 10 of Reg. 664. is not warranted.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is payable.
ORDER
33The applicant has not demonstrated that his injuries cannot be treated within the limits set by the MIG.
34The proposed treatment plans are not payable since they propose treatment outside of the MIG.
35The applicant is not entitled to an award.
36No interest applies on overdue benefits in dispute.
Released: November 21, 2025
Bernard Trottier
Adjudicator