Licence Appeal Tribunal File Number: 24-000335/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:
Basim Safar
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Georgiana Masgras, Counsel
Purva Vaidya, Counsel
Mobina Khan, Counsel
For the Respondent:
Bruce Keay, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Basim Safar, the applicant, was involved in an automobile accident on February 1, 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, 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 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 the assessments proposed in the treatment plans/OCF-18s (“plans”) by Meditecs Independent Medical Examinations, as follows:
a. $21,715.20 for catastrophic assessments, submitted June 11, 2023?
b. $2,757.20 for a functional abilities evaluation, submitted June 10, 2023?
c. $3,977.60 for a psychological assessment, submitted June 10, 2023?
d. $4,373.10 for a chronic pain assessment, submitted June 10, 2023?
iii. Is the applicant entitled to $4,794.72 for chiropractic services, proposed by Spine Tec Healthcare Solutions in a plan submitted June 10, 2023?
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’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. Since the applicant is subject to the MIG limit, it is not necessary to assess whether the proposed plans are reasonable and necessary, and the applicant is not entitled to payment under s. 38(11) of the Schedule. The respondent is not liable to pay an award. The applicant is not entitled to interest. The application is dismissed.
ANALYSIS
The applicant’s injuries are predominantly minor
4I find that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.
5Section 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.”
6An 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.
7The applicant made general submissions regarding removal from the MIG. The applicant’s position is that he should be removed from the MIG because he has documented ongoing symptoms, requires extensive physical therapy, and his injury causes a substantial and enduring impact on his life. I have read the applicant’s submissions liberally to ensure a decision on the merits of the evidence before me. The applicant argues that:
…injuries such as Post-Concussion Syndrome, Other Intervertebral Disc Disorders, and complex sprains and strains of the cervical, thoracic, and shoulder regions fall outside the MIG’s scope. Section 4 of the SABS explicitly excludes injuries from the MIG if they involve significant impairment or require extensive medical treatment.
8I note that under additional comments included in a number of OCF-18s, Dr. Joseph Paton, Chiropractor, records that the applicant made the following concussion and neurocognitive complaints:
i. low energy levels, including less interest in previously enjoyed activities,
ii. dizziness, ringing in ears, nausea, persistent headache/pressure in the head, light/noise sensitivity.
9I was not referred to evidence of the applicant being diagnosed with post concussion syndrome as a result of the accident. Only three types of practitioners are regulated in Ontario to make a diagnosis of concussion: a physician, nurse practitioner, or neuropsychologist. I do not have evidence before me suggesting that Dr. Paton falls into any of these categories. For these reasons, I find that, the applicant has not been diagnosed with post-concussion syndrome as a result of the subject accident. Without a concussion diagnosis, I am not persuaded by the applicant’s references to post-concussion syndrome, symptoms, or complaints as they may relate to removal from the MIG.
10Dr. Joseph Paton also commented that the applicant’s right upper extremity should be investigated with an electromyography or EMG and a neurological assessment. According to the family doctor’s clinical notes and records (“CNRs”) dated August 6, 2019, the applicant’s EMG results were normal. Further, according to an insurer examination Physiatry Assessment Report dated September 26, 2019 by Dr. Shariff Dessouki MD, FRCPC (Physiatry), CSCN, the applicant had no positive orthopaedic testing or hard neurological findings.
11I was referred to the applicant’s mild degenerative disc disease based on two MRIs. A November 15, 2021 MRI of the cervical spine and a subsequent December 24, 2022 MRI of the lumbar spine. I am not referred to evidence that the mild degenerative disc disease is a result of the subject accident.
12I find that the test for removal from the MIG does not distinguish between sprains and strains of the spine and shoulder that are complex in contrast to those that are not complex, as the applicant suggests. In comparing the applicant’s previous x-rays with imaging of the cervical and thoracic spine and his right shoulder completed on July 2, 2021, the results were normal as opined by Dr. Mark Cicero, MD, BESc, FRCPC.
13The applicant was referred to the Pain Care Clinics and a consultation took place on October 31, 2022. The report by Dr. Mohamed Awad notes his main complaint being neck and right shoulder pain. The shoulder exam did not reveal any positive finding. The neck and cervical spine exam showed a reduced range of motion but there were no diagnoses pointing to an injury outside the MIG.
14As to the applicant’s reference to s. 4 of the Schedule, this section relates to an Income Replacement Benefit and not to the MIG. Further, I find that the applicant did not refer me to any authority for the position that the Schedule explicitly excludes “significant impairment” or impairments requiring “extensive medical treatment” from the MIG. I am not persuaded by this argument because I find that these terms are not explicitly found in the Schedule. The applicant did not refer me to binding authority in support of this interpretation.
15The applicant also argues that the respondent’s denial notices are not in compliance with the Schedule because they do not provide a medical reason. The applicant argues they do not include a meaningful discussion about the applicant’s injuries or symptoms and as a consequence s. 38(11) prohibits the respondent from taking the position that the applicant is subject to the MIG. On this basis, the applicant argues that he is entitled to the plans in dispute and also should be removed from the MIG under s. 38(11) of the Schedule.
16The respondent refers me to Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 to argue that s. 38(11) does not impose a permanent prohibition on it with respect to whether the applicant is subject to the MIG limit. Accordingly, I find that the consequences provided in s. 38(11) do not assist the applicant in arguing the issue of removal from the MIG. Rather, the consequences of s. 38(11) apply to the specific plan or plans in question and this will be subsequently reviewed based on the applicant’s submissions and evidence relating to the specific plans in dispute.
17As to the impact on the applicant’s life, the applicant argues that the impact is evident. As to evidence of the impact on the applicant’s life I am offered evidence relating to employment, but the evidence seems inconsistent, and I find it unreliable. Further, the question before me is whether the applicant’s injuries fall within the definition of a minor injury as defined by the Schedule, rather than whether or not the applicant’s life has been impacted.
18For the reasons above, on a balance of probabilities, I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
The applicant is not entitled to the plans in dispute under s. 38(11)
19As I have found that the applicant remains subject to the MIG, it is unwarranted that I consider whether the proposed plans are reasonable and necessary. I find that the plans in dispute are not payable under s. 38(11) of the Schedule.
20Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
21The applicant argues that the respondent is subject to the shall pay provision of s. 38(11) of the Schedule because of defective denials of the plans in dispute. The applicant’s general argument is that the denial notices for all disputed plans do not include sufficient medical reasons.
22The respondent’s reasons relating to all the plans in dispute are contained in a single denial notice dated June 14, 2023, within 10 days of receipt of the plans. The denial notice provides reasons that are summarized as follows:
i. The applicant’s medical evidence does not establish injuries outside the definition of a minor injury, so the MIG limit applies.
ii. According to the physiatry insurer examination reports by Dr. Shariff Dessouki, the applicant sustained injuries covered by the MIG and would benefit from a self-directed in-home exercise program.
iii. The requested assessments are not supported by medical evidence and there are insufficient particulars to establish catastrophic assessments may be reasonable and necessary, and causation is in question.
iv. A number of documents have been requested and not received, including the accident benefits file related to an August 4, 2018 date of loss, clinical notes and records from the applicant’s family doctor and from Spinetech, and a decoded OHIP summary.
23The respondent’s reasons should engage the specific details about the applicant’s condition forming the basis for the respondent’s decision and be adequate enough to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial. In this instance, I find that the respondent satisfied this requirement. The respondent engaged with the specific details about the applicant’s condition, including the application of the MIG, the specific opinions of an assessor, that it was raising the question of causation, and the specific medical documentation it had requested and not received at the time. I find that the reasons provided satisfy the respondent’s obligation under s. 38(8) of the Schedule.
24For the reasons above, on a balance of probabilities, the plans in dispute are not payable under s. 38(11) of the Schedule.
Interest
25There are no benefits to which interest applies under s. 51 of the Schedule.
Award
26The 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 the applicant is not entitled to any unreasonably withheld or delayed payments of benefits, the respondent is not liable to pay an award.
ORDER
27For the reasons above, I make the following orders:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and is subject to treatment within the $3,500.00 MIG limit.
ii. Since the applicant is subject to the MIG limit, it is not necessary to assess whether the proposed plans are reasonable and necessary, and the plans are not payable under s. 38(11) of the Schedule.
iii. The respondent is not liable to pay an award.
iv. The applicant is not entitled to interest.
Released: December 11, 2025
__________________________
Amar Mohammed
Adjudicator