Diana Alaw v. The Dominion of Canada General Insurance Company, 2025 CanLII 129069

Citation: Alaw v. The Dominion of Canada General Insurance Company, 2025 ONLAT 24-001140/AABS

Licence Appeal Tribunal File Number: 24-001140/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:

Diana Alaw

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Georgiana Masgras, Counsel

For the Respondent: Alfred Cheng, Counsel

HEARD: By way of written submissions

OVERVIEW

1Diana Alaw, the applicant, was involved in an automobile accident on November 26, 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, 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 section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from July 25, 2023 to November 25, 2023?

iii. Is the applicant entitled to $5,080.00 for physiotherapy services, proposed by Oxford Spine Centre in a treatment plan/OCF-18 (“plan”) dated August 8, 2023?

iv. Is the applicant entitled to $2,198.00 for physiotherapy services, proposed by Oxford Spine Centre in a plan dated March 16, 2022?

v. Is the applicant entitled to $5,690.00 for chiropractic services, proposed by Oxford Spine Centre in a plan dated January 9, 2024?

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

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

3The respondent notes the applicant’s dates for issue ii) entitlement to NEB are July 25, 2023 to November 25, 2023. The respondent submits that, in accordance with section 12(3) of the Schedule, the applicant’s eligibility period is December 24, 2021 to November 25, 2023 and the benefit was paid to July 24, 2023.

RESULT

4The applicant is subject to the MIG.

5The applicant is not entitled to a non-earner benefit for the period of July 7, 2023 to July 7, 2025.

6The applicant is not entitled to the treatment plans in dispute.

7The applicant is not entitled to interest.

8The respondent is not liable to pay an award.

ANALYSIS

Application of the Minor Injury Guideline

9Section 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.”

10The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.

11The applicant submits that her injuries and ongoing pain are more severe and persistent symptoms than minor sprains and strains. The applicant argues she suffered a concussion, psychological injuries, and has chronic pain with a functional impairment as a result of her accident-related injuries.

12The respondent submits the applicant’s injuries are predominantly minor and the applicant has not met her onus to be removed from the MIG.

Does the applicant have chronic pain with a functional impairment?

13I find that the applicant has not established on a balance of probabilities that she suffers from a chronic pain condition with a functional impairment that would warrant removal from the MIG.

14The applicant relies on the CNRs of Dr. Samim Al-Qadhi, family physician, and the occupational therapy initial home assessment report prepared by Mr. Mohammad AlMudallal, occupational therapist. The family doctor’s CNRs note the applicant was suffering headaches that were a few seconds in duration up to a minute for a period of approximately 2 months after the accident. The CNRs do not note any functional impairments from her accident-related injuries.

15I find Mr. Almudallal’s occupational therapy initial home assessment report provides limited insight into the applicant’s pain or resulting functional limitation because no formal testing or diagnosis was provided in the report regarding her accident-related impairments. Mr. AlMudallal states the applicant has headaches, cervical and thoracic spine pain as well as left knee pain and radiating pain on both shoulders. He does not diagnose chronic pain.

16Dr. Khan’s section 44 report notes the applicant suffered cervical spine sprain/strain, bilateral trapezius/posterior shoulder girdle sprain/strain, and thoracolumbar spine sprain/strain. He does not find that the applicant has chronic pain. Dr. Khan’s findings are consistent with sprain/strain type of injuries that are treatable within the MIG.

17Given that there is no evidence of significance that the applicant has chronic pain with a functional impairment, I find the applicant has not met her onus.

18I find the applicant has not established on a balance of probabilities that she suffers from a chronic pain condition with functional impairment warranting removal from the MIG.

Does the applicant have a concussion?

19I find the applicant has not demonstrated on a balance of probabilities that she has a concussion as a result of the accident that warrants removal from the MIG.

20The applicant submits she has a concussion, pain in her cervical and thoracic spine, headaches and pain radiating to her shoulders. The applicant relies on the OCF-18s, the occupational therapy initial home assessment report prepared by Mr. AlMudallal, occupational therapist, dated December 3, 2021, the clinical notes and records (CNRs) of Dr. Samim Al-Qadhi, family physician, and the Emergency Room notes.

21The respondent submits the applicant did not produce the family doctor CNRs in accordance with the Case Conference Report and Order (CCRO). The respondent requests an adverse inference should be drawn from this. However, the respondent did not clarify what kind of adverse inference they were seeking.

22The applicant’s reply submission is silent on this matter.

23However, I find excluding the family doctor CNRs would unfairly disadvantage the applicant as the CNRs offer critical insight into the applicant’s medical condition and treatment history, which are central to the disputed issues.

24The CNRs of the family doctor state the applicant was approved for a return to school three days after the accident on November 29, 2021. The family doctor notes “concussion: improving” on December 6, 2021 and her symptoms include headache lasting one minute with a severity of 3 out of 10, phonophobia, amnesia, difficulty concentrating and remembering, and sleeping less than usual. Her family doctor asked her to return December 15 for an unrelated health matter. On December 15, 2021 and January 2, 2022, the CNRs note the applicant was improving, complained of headaches, but no longer reported phonophobia, anxiety or difficulty concentrating. The family doctor provided the applicant with a second note again indicating she was approved for a return to her classes. The applicant did not refer me to any other CNRs after this date.

25The respondent submits the applicant was misdiagnosed for a concussion and relies on the section 44 insurer’s examination neurology report prepared by Dr. Rehan Dost, neurologist, dated November 16, 2023, the section 44 physiatry report prepared by Dr. Abdul-Wahab Khan, physiatrist, dated November 16, 2023, and the section 44 psychology report prepared by Dr. Jay McGrory, psychologist, dated November 18, 2024.

26Dr. Dost’s report states the family doctor misdiagnosed the concussion. The misdiagnosis is “based entirely upon [the applicant’s] subjective reports of nonspecific post concussive symptoms specifically headache.” Dr. Dost’s section 44 report notes the applicant’s headaches are consistent with head and neck injury and she did not sustain a mild traumatic brain injury or concussion as a result of the accident. I find the applicant’s self-reported symptoms are more likely to be sequelae of the accident-related injuries.

27I place more weight on Dr. Dost’s report because it is more probable the applicant’s symptoms are consistent with neck and shoulder pain, and the ER notes do not state that the applicant hit her head or that the applicant lost consciousness. In my view, the ER notes were not definitive in their diagnosis and the family doctor’s assessment was based on the applicant’s self reporting. Also, the family doctor approved the applicant’s return to school twice, and the first time it was within days of the accident.

28Accordingly, I find that the applicant has not met her onus to establish on a balance of probabilities that she sustained a concussion that warrants removal from the MIG.

Does the applicant have a psychological impairment?

29I find the applicant has not met her burden to prove that she suffers from a psychological impairment that would warrant removal from the MIG.

30The applicant submits she has accident-related PTSD and summarized her psychological impairments include “flashbacks, nightmares, hypervigilance, irritability, and insomnia” and agoraphobia. The applicant relies on the family doctor CNRs, and the occupational therapy initial home assessment report dated December 3, 2021, prepared by Mr. Mohammad AlMudallal, occupational therapist.

31The family doctor’s CNR state the applicant was approved for a return to school three days after the accident. Also, the family doctor CNRs note from November 29, 2021 to January 4, 2022 her symptoms of headache, sleep disturbance, and her difficulties with concentration slowly abated over this period of time. There was only a one time note of anxiety and no other psychological impairments noted during any of the four accident-related visits to the family doctor.

32I place less weight on Mr. Almudallal’s occupational therapy initial home assessment report because a psychological diagnosis is outside of his practice scope.

33The respondent submits the applicant has not met her onus and not been diagnosed with a psychological impairment that would remove her from the MIG. The respondent relies on the section 44 psychology report prepared by Dr. Jay McGrory, psychologist, dated November 18, 2024.

34Dr. McGrory’s section 44 psychology report that notes “she is not reporting significant psychological difficulties on the psychometric measures” and she “is not experiencing an accident-related DSM-5-TR psychological disorder”. I place more weight on Dr. McGrory’s report because it is based on objective testing including the clinical interview, Beck Depression Inventory, the Beck Anxiety Inventory, and the Pain Patient Profile and it is consistent with the self-reporting noted in the family doctor’s CNRs.

35I find on a balance of probabilities that the applicant has not met her burden to establish that she has a psychological impairment as a result of the accident because the family doctor’s CNRs and Dr. McGrory’s report do not support the applicant’s claim of a psychological impairment.

36I find that the applicant has not established on a balance of probabilities that she suffers from a chronic pain condition with a functional impairment, a concussion, or a psychological impairment that would warrant removal from the MIG.

Is the applicant entitled to a non-earner benefit?

37I find the applicant has not met her burden to prove entitlement to the non-earner benefit for the period of July 25, 2023 to November 25, 2023. The applicant incorrectly submitted the date of July 7, 2023 to July 25, 2025.

38Section 12(1) of the Schedule provides that an insurer shall pay a non-earner benefit 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) of the Schedule 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 non-earner benefit entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focusses on a comparison of the applicant’s pre- and post-accident activities.

39The applicant submits she has no range of motion in her left shoulder and leg, relies on assistance for transfers and stairs, and suffers anxiety and depression as well as an inability to independently perform daily activities. The applicant relies on the updated Disability Certificate/OCF-3 dated July 6, 2024 and the family doctor CNRs. I find that the applicant’s submissions are not supported by the evidence submitted and the applicant did not provide details on her pre-accident activities in her submissions. The applicant provides no evidence or submissions detailing their pre-accident activities, as Heath requires. The CNRs of the family doctor note the applicant suffered headaches, sleep disturbance, and was provided a note to return to school three days after the accident.

40The respondent submits that the initial OCF-3 was dated November 30, 2021 and the applicant was paid the NEB for the period of December 24, 2021 to July 24, 2023. In letters dated June 26, 2023 and July 25, 2023, the respondent requested an updated OCF-3 in accordance with section 33 of the Schedule. The letter also cites s. 33(6) and s. 33(8) regarding the consequences of non-compliance with the requests made under s. 33.

41The applicant submitted an updated OCF-3 dated July 6, 2024, one year after the deadline to provide this information, and eight months after the 104-week entitlement period ended. The applicant did not address the reasons for the delay in reply.

42I find the applicant’s submission does not include details, or a comparison of the applicant’s pre- and post-accident activities as required by Heath, and the family doctor’s CNRs do not corroborate that her injuries resulted in a complete inability to carry on life. The applicant also has not provided a reasonable explanation for the delay in complying with the s. 33 request and she has not addressed the principles for entitlement to a non-earner benefit as outlined in Heath. Therefore, the applicant has not met her burden to prove entitlement to the non-earner benefit for the period of July 25, 2023 to November 23, 2023.

43Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.

Award

45The applicant sought an award under section 10 of Regulation 664. 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

46I find an award is not appropriate. The applicant did not direct me to evidence of the respondent’s behaviour that was “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” As a result, no award is payable.

ORDER

47The applicant is subject to the MIG.

48As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

49The applicant is not entitled to a non-earner benefit for the period in dispute.

50As there are no overdue benefits, the applicant is not entitled to interest.

51The applicant is not entitled to an award under section 10 of Regulation 664 because no payments were unreasonably withheld or delayed.

52The application is dismissed.