Licence Appeal Tribunal File Number: 24-012786/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:
Vida Karimy
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
PANEL:
Gordon Stencell
Caley Howard
APPEARANCES:
For the Applicant:
Agal Lankeswaran, Paralegal
For the Respondent:
Andrew Cottreau, Counsel
Court Reporter:
Laura Tang
Heard by Videoconference:
June 17, 2025
OVERVIEW
1Vida Karimy, the applicant, was involved in an automobile accident on November 11, 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, Pembridge Insurance Company Inc., 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from December 10, 2021, to ongoing?
iii. Is the applicant entitled to $3,454.95 for Physiotherapy services, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 (“plan”) dated March 31, 2022?
iv. Is the applicant entitled to $2,956.20 for Physiotherapy services, proposed by Whitby Wellness Centre in a plan dated October 4, 2022?
v. Is the applicant entitled to $2,680.58 for Physiotherapy services, proposed by Whitby Wellness Centre in a plan dated June 1, 2023?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3We find as follows:
i. The applicant sustained minor injuries as defined under the Schedule in the accident. She remains within the MIG and is subject to its $3,500.00 limit on treatment. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
ii. The applicant is not entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from December 10, 2021, to ongoing.
iii. As the applicant remains in the MIG and is not entitled to IRB, no interest is payable.
PROCEDURAL ISSUES
Motion barring claim for income replacement benefits
4On June 9, 2025, the respondent brought forward a motion seeking an order barring the applicant’s claim for income replacement benefits (“IRB”) for failure to submit an OCF-10 prior to commencing the LAT application.
5The respondent submitted that its argument was listed in its Case Conference Summary as a preliminary issue. However, the Case Conference Report and Order (“CCRO”) contained no preliminary issue.
6We find this argument will be addressed under the substantive issues because it is a procedural defence to the applicant’s claim for entitlement to an IRB. Upon receiving the motion, the Tribunal informed the parties the motion would be heard at the scheduled hearing.
Motion to submit an IRB report as evidence
7The applicant filed a motion asking the Tribunal’s permission to submit the IRB report by Ivan Semenov, CPA-CMA, BBA, S&T Accounting, dated June 12, 2025, as evidence.
8The applicant submitted the IRB report is necessary as it is the only evidence to determine the quantum for IRB. The applicant also submitted it had difficulty obtaining supporting documents.
9The respondent argued that because the IRB report was produced on June 12, 2025, and distributed to the respondent on June 13, 2025, it was non-compliant with the CCRO document exchange deadlines. The respondent further argued the accompanying 251-page document included documents not previously exchanged as set out in the CCRO.
10We find the IRB report will be allowed as evidence. The applicant does not dispute she was not compliant with Rule 9.3, to exchange documents to be relied on no later than 21 days prior to the hearing. In accordance with Rule 9.3, we allowed the applicant to rely on the IRB report because we found the prejudice to the applicant if the IRB report were not permitted as evidence is greater than the prejudice to the respondent if the evidence were permitted.
ANALYSIS
The 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.
11The applicant has not demonstrated that she suffers from physical and/or psychological injuries that warrant her removal from the MIG for the following reasons.
12Section 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.”
13An 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.
The applicant has not proven that she suffers from a psychological condition
14We find the applicant does not suffer from a psychological impairment as a result of the accident.
15The applicant submits she should be removed from the MIG because she suffers from an accident-related psychological impairment. In support, the applicant relies on her own testimony.
16The respondent argues the applicant should not be removed from the MIG because there are no supporting medical records. The respondent relies on the applicant’s testimony, employment records, all slips from tax years 2020, 2021, and 2024, a May 2019 psychiatric report, 2019 neurology reports, and the clinical notes and records (“CNRs”) of her family doctor Sadiqa Khan.
17The applicant testified that she previously had no health issues but, as a result of the accident, she now suffers from anxiety, fear of driving, fear of being a passenger in a motor vehicle, flashbacks, and sleep problems. The applicant also testified she now must take medicine, see a psychologist, go to the gym and do exercises to cope with accident-related psychological impairment.
18We find that the medical records contradict the applicant’s testimony. Specifically, the pre-accident psychiatric report shows that the applicant was treated for anxiety and anxiety attacks in 2019. According to the two 2019 neurology reports, the applicant suffered from anxiety, headaches, and migraines, and reduced power to an extremity. The recommended treatment at the time was medication, a fitness program, and brisk walking. These reports are not connected to the accident and there is no indication that the applicant was experiencing symptoms as a result of the subject accident.
19We further find that the CNRs of Dr. Khan do not reflect complaints, concerns, or diagnoses of psychological injuries arising from the subject accident, and contradict her claim she had no pre-accident psychological issues. Specifically, the CNRs show that on October 23, 2021, the family doctor prescribed lorazepam. This was just a few weeks pre-accident. The applicant testified this was to treat sleep and headache issues. We give significant weight to the CNRs of Dr. Khan because Dr. Khan was the applicant’s treating physician and had a long-term relationship with the applicant starting before the accident.
20We have been directed to no additional medical documentation in which the applicant reported suffering from psychological symptoms due to the accident that would corroborate her claim.
21Because the applicant’s testimony was sometimes contradicted by the documentary evidence, and due to a lack of supporting medical evidence to corroborate other parts of her testimony, we give the testimony less weight. Therefore, we find the applicant has not proven on the balance of probabilities that she has a psychological impairment.
The applicant has not proven that she has chronic pain with functional impairment
22The applicant submitted that she suffers from chronic pain and should be removed from the MIG as a result. The testified she was in good health prior to the accident and had no problems or issues but, as a result of the accident, she has headaches four to five times weekly, light sensitivity, plus neck, shoulder, and leg pains. The applicant relies on a request for temporary leave of absence that includes an attached letter from her physiotherapist dated May 25, 2023, and her testimony about workplace accommodation. The applicant testified she does not have a formal chronic pain diagnosis because her doctor does not listen to her, refuses to recommend that she take leave from work to accommodate her chronic pain, and does not make proper clinical notes.
23The applicant argues that her physiotherapist’s workplace accommodation recommendation to avoid heavy lifting is evidence of her chronic pain. The applicant also relies on the OCF-3 disability certificate completed by Brank Milen, chiropractor, on November 11, 2021, she suffered a substantial inability to provide caregiving duties. Furthermore, the applicant testified it is unreasonable for the respondent to expect a client could be in an automobile accident and not be entitled to a claim beyond the MIG.
24The respondent argues that the applicant has not proven that she should be removed from the MIG. The respondent relies on the CNRs of Dr. Khan, the two 2019 neurology reports, the 2019 psychiatric report, a temporary leave of absence work record, a request for leave of absence without pay work record, and tax returns from the years 2020, 2021, and 2024.
25We find that the CNRs of Dr. Khan do not confirm the applicant’s claim that she suffers from chronic pain. Specifically, Dr. Khan’s note of May 12, 2022, indicates that the applicant was not attending the physiotherapy that Dr. Khan recommended because she was busy at home with chores and with visitors. We further find that the CNRs conflict with the applicant’s claim that Dr. Khan was not supportive of her need to take time off work due to her injuries because on July 7, 2022, Dr. Khan recommended that the applicant take a leave of absence from work when she twisted her ankle. We give significant weight to the CNRs from the family physician because of Dr. Khan’s on-going treating relationship with the applicant.
26The respondent directed us to evidence, tax assessment statements, pre and post accident, that the applicant worked and earned more than pre-accident. Furthermore, the applicant directed us to a leave of absence form from the applicant’s employer in 2023. The applicant agreed under cross-examination the leave of absence was to be a caregiver to her ailing father overseas.
27In addition, we find that the 2019 neurology reports correspond with the respondent’s submission that the applicant’s headaches were a pre-existing condition. According to the neurology report of March 22, 2019, the applicant reported having daily headaches at that time. We have been directed to no medical evidence that the headaches worsened after the accident, or as a result of the accident. Rather, the applicant testified weekly instances of headaches treated pre-accident improved post-accident. We have been directed to no corroborating evidence that supports her claim that headaches functionally impaired her ability to work or perform household tasks.
28Because the applicant’s testimony is contradicted by the documentary evidence, and due to a lack of supporting medical evidence to corroborate the OCF-3 and other parts of her testimony, we find the applicant has not proven on the balance of probabilities that she has chronic pain with functional impairment. As a result, we find that the applicant has not proven that she has suffered injuries that are not predominantly minor. We find the applicant remains subject to the MIG limits.
OCF-18s in dispute
29As the applicant is in the MIG, it is not necessary to consider whether the treatment plans in dispute are reasonable and necessary.
Is the applicant entitled to an IRB?
30We find that the applicant is not entitled to an IRB.
31The respondent received a Disability Certificate (OCF-3) on January 4, 2022, which indicated that the applicant met the tests for non-earner benefits, income replacement benefits, and caregiver benefits. On January 5, 2022, the respondent delivered an Explanation of Benefits requesting, among other things, completion of an OCF-10 Election form pursuant with s. 33 of the Schedule. The respondent continued to follow-up until an OCF-10 Election form was completed on May 23, 2025, after the LAT application filing date of October 16, 2024.
32To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
33Section 35(1) of the Schedule states that: If an application indicates that the applicant may qualify for two or more of the income replacement benefit, the non-earner benefit and the caregiver benefit under Part II, the insurer shall, within 10 business days after receiving the application, give a notice to the applicant advising the applicant that he or she must elect, 30 days after receiving the notice, the benefit he or she wishes to receive.
34The respondent argued the applicant did not properly apply for the benefit by completing the OCF-10 Election form before the LAT application filing date, therefore the respondent did not have the opportunity to properly adjust the claim and pay or deny the benefit.
35The applicant admits that she did not submit an OCF-10 indicating her IRB election until May 23, 2025, after the LAT application filing date of October 16, 2024. The applicant also submits the completion of an OCF-1 and OCF-3 were attempts by the applicant to access specified benefits.
36The respondent directed us to a similar fact scenario, Lubin v Allstate Insurance Company of Canada, 2023 CanLII 116488 (ON LAT) (“Lubin”), in which the Tribunal held that since the OCF-3 indicated that the insured person met the disability tests for both specified benefits, sufficient ambiguity was created, warranting the requested OCF-10. The respondent submitted the applicant created such ambiguity by electing more than one specified benefit. While we are not bound to follow Tribunal decisions, we agree with the reasoning in Lubin, and we find that in this case sufficient ambiguity was created in the OCF-3 and that the request for the OCF-10 was warranted.
37The respondent relied on The Divisional Court in Lefebvre v. Aviva Insurance Company of Canada, 2018 ONSC 5676 (“Lefebvre”) that upheld the Tribunal’s conclusion that where an OCF-10 election is required, it must be made before the LAT application is commenced. The defect cannot be cured by an election delivered afterwards. We are bound by the Court’s decision in Lefebvre.
38We find there was no dispute when the LAT application was commenced because an election had not been made (let alone responded to), and that defect was not cured by the election made after the commencement of the LAT application. Therefore, we find on the balance of probabilities the applicant has not demonstrated that she is entitled to an IRB.
Is the applicant entitled to interest?
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no overdue benefits, therefore the applicant is not entitled to interest.
ORDER
40We find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment and assessments plans in dispute;
iii. The applicant is not entitled to an IRB; and
iv. The applicant is not entitled to interest.
Released: December 5, 2025
Gordon Stencell
Adjudicator
Caley Howard
Adjudicator