Alaswad v. Co-operators General Insurance Company, 2025 CanLII 132395

Citation: Alaswad v. Co-operators General Insurance Company, 2025 CanLII 132395

Licence Appeal Tribunal File Number: 24-000977/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:

Mohamad Alaswad

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Mobina Khan, Counsel

For the Respondent: Bruce Keay, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mohamad Alaswad, the applicant, was involved in an automobile accident on May 13, 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, 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 $4,190.00 for physiotherapy services, proposed by Mohannad Bakri/Physio Art in a treatment plan/OCF-18 (“plan”) submitted January 10, 2024, and denied January 23, 2024?

iii. Is the respondent entitled to a repayment of $6,512.00 relating to its payment of income replacement benefits for the period of June 14, 2021 to January 15, 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

3I find that:

i. The applicant remains subject to the MIG;

ii. The treatment plan for physiotherapy submitted January 10, 2024 is not payable pursuant to s. 38;

iii. The respondent is not entitled to a repayment of the IRB in the amount of $6,512.00;

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and

v. As there are no overdue benefits and no repayments, no interest is payable.

ANALYSIS

The applicant remains subject to the MIG

4I find that the applicant remains subject to the MIG.

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 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.

7Section 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.

8The applicant’s submissions respecting the MIG focused on his allegations that the respondent’s denial letters did not comply with s. 38(8) of the Schedule and the applicant submits that he should be removed from the MIG pursuant to s. 38(11). The applicant further submits that his accident-related injuries, which include lower back pain and a psychological condition, resulted in ongoing symptoms that have caused a substantial impact on his life, and do not fall within the MIG.

9The respondent submits that s. 38(11) provides an escape from the MIG for the treatment plan that is the subject of the non-compliant denial letter only. It does not provide a general exit from the MIG designation. The respondent relies on the Ontario Divisional Court case of Zheng, Cia v. Aviva Insurance, 2018 ONSC 5707 (“Zheng”). The respondent further submits that the applicant’s injuries, which were described on the treatment plan as chronic post-traumatic headache, Whiplash Associated Disorder II and sprain and strain of the lumbar spine, fall within the MIG. The respondent relies on the November 11, 2021 report of Dr. Shariff Dessouki, physiatrist.

10I agree with the respondent’s submissions with respect to the effect of s. 38(11). As specified by the Court in Zheng, a letter denying a treatment plan that does not comply with s. 38(8) of the Schedule affects the applicant’s MIG designation with respect to that treatment plan until a compliant notice is given. It does not remove the applicant from the MIG on a permanent basis or with respect to other claims. Therefore, I will consider the applicant’s s. 38 arguments when I analyze his entitlement to the treatment plan.

The applicant does not suffer from chronic pain

11I find that the applicant has not proven that he suffers from chronic pain with a functional impairment as a result of the accident that warrants removal from the MIG.

12The applicant submits that he suffers from chronic lower back pain as a result of the accident. In support, the applicant relies on the hospital records from his visit on May 14, 2021, the day after the accident, the clinical notes and records (CNRs) of Dr. Wasan Abbas, his family physician, and the CNRs of Physio Art Rehabilitation.

13The respondent relies on the case of Dooman v. TD Insurance, 2025 ONSC 184 (Ont. Div. Ct.), in which the Court approved of the Tribunal’s use of the American Medical Association Guides, 6th edition (“AMA Guides”) criteria for establishing chronic pain. The AMA Guides require that for a person to be found to have chronic pain, they must meet at least three of the following criteria:

1. Use of prescription drugs beyond recommended duration and/or abuse of drugs;
2. Excessive dependence on health care providers, spouse, or family;
3. Secondary physical deconditioning due to disuse and/or fear-avoidance of Activity;
4. Withdrawal from social milieu, including work, recreation, or other social Contracts;
5. Failure to restore pre-injury function after a period of disability;
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours.

14I find that the medical records do not support the applicant’s claim that he suffers from chronic pain as a result of the accident because they do not demonstrate that he meets any of the 6 criteria set out above. While the CNRs of Dr. Abbas indicate that the applicant underwent a lumbar spine x-ray in September 2023 and was referred to physiotherapy for his lower back pain at that time, there is no reference in those notes to the applicant reporting that the back pain he experienced in 2023 was related to the accident or to the back pain he experienced in May of 2021.

15In addition, while there is a note in Dr. Abbas’ CNRs dated November 10, 2022, in which Dr. Abbas refers the applicant to a psychiatrist for his depression, I agree with the respondent’s submission that the applicant reported at that time that his depression was due to a fight and subsequent court visits. I find Dr. Abbas’ November 10, 2022 record is a transcription or summary of a handwritten note in his November 9, 2022 record. I find that the original hand-written note appears to contain the words “fight incident” while the typed version contains “fight accident”. I find that in the context of the record, “fight incident” makes sense whereas “fight accident” is nonsensical. As a result, I find that Dr. Abbas’ records from November 2022 do not refer to the accident in relation to the applicant’s depression.

16I further find that the CNRs from the applicant’s physiotherapist do not support the applicant’s claim that he suffers from chronic pain as a result of the accident because they do not establish that he meets any of the six AMA Guides criteria. The records show that the applicant, after receiving physiotherapy between the date of the accident and September 2021, attended for one additional physiotherapy session on January 10, 2024. While the injuries were the same as those reported immediately after the accident (lower back pain, neck pain and headaches), the January 10, 2024 record does not refer to the accident in relation to the applicant’s pain, nor does it indicate when the pain reported in January 2024 began. Because over two years had passed between his initial post-accident treatment and this visit to the physiotherapist, I find that this single treatment session is insufficient to demonstrate chronic pain.

17In addition, I find that the applicant has not pointed or directed me to evidence respecting any functional impairment caused by his chronic pain or to evidence that the applicant meets the AMA Guide criteria for establishing chronic pain.

18Therefore, I find that the applicant has not proven, on a balance of probabilities, that he suffers from chronic pain with functional impairment due to the accident that warrants removal from the MIG.

The applicant does not have a psychological condition that warrants removal from the MIG

19I find that the applicant does not have a psychological condition due to the accident that warrants removal from the MIG.

20While the applicant submits that his accident-related injuries include a psychological condition, I find that he did not refer me to any evidence to prove that he suffers from a psychological condition related to the accident.

21The respondent submits that the only records in the CNRs of Dr. Abbas that refer to a psychological condition specifically link the applicant’s depression to a fight and subsequent related court visits.

22I accept that the CNRs relating to the applicant’s depression do not refer to the accident and that the psychiatric referral did not occur until over one year after the accident. Therefore, I find that the applicant has not proven, on a balance of probabilities, that he suffers from a psychological condition as a result of the accident.

23Therefore, I find that the applicant has not proven that his accident-related injuries fall outside of the MIG. He remains subject to the MIG.

The appellant is not entitled to the treatment plan for physiotherapy

24I find that the applicant has not demonstrated that he is entitled to the treatment plan. The treatment plan in question was completed by Mohannad Bakri, physiotherapist, and sought funding of $4,190.00 for physiotherapy. The plan was submitted on January 10, 2024.

25As I have found that the applicant remains within the MIG, I need not consider whether the treatment plan is reasonable or necessary.

26If an insurer fails to comply with s. 38(8), the consequences are:

(i) The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and

(ii) The insurer must pay for any proposed treatments or assessments set out in the plan that are incurred in the period starting on the 11th day after the insurer receives the plan and ending on the date when the insurer provides the insured with a response that complies with s. 38(8).

27Although I am not bound by Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), provides useful guidance on the meaning of “medical reasons.” It found that such reasons should:

(i) include specific details about the insured’s condition that formed the basis for the insurer’s decision; and

(ii) should allow an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision.

28The applicant submits that the respondent’s denial letter dated January 23, 2024 does not comply with s. 38(8) of the Schedule because it does not set out the medical reasons for his denial, that the non-compliance has not been cured and that he is entitled to the treatment plan by virtue of s. 38(11).

29The respondent submits that its letter of January 23, 2024 is compliant with s. 38(8). In the denial letter, the respondent denies the treatment plan on the basis that the applicant’s injuries fall within the MIG and the MIG limits had been reached. In its letter, the respondent relies on the s.44 Insurer’s Examination report of Dr. Dessouki, dated November 11, 2021, and quotes Dr. Dessouki’s opinion that “Mr. Alaswad had received adequate therapy to allow for the resolution of his symptoms, further formal physical therapy is not considered reasonable or necessary.”

30The letter further states:

It has been 2 years and 8 months since the accident and it has been 2 years and 3 months since we received the last treatment plan. There has been no activity on your claim to indicate or suggest that you continue to require treatment as a result of this accident.

The medical documentation we have on file from your family doctor, Dr. W. Abbas, goes until May 20, 2021 and the hospital records from St. Joseph's goes until May 14, 2021. There is no medical documentation on file to support the need for additional treatment.

Therefore, we maintain our position that your injuries fall within the definition of a minor injury and no further treatment is considered reasonable and necessary given how much time has passed.

31I find that letter of January 23, 2024 is compliant with s. 38(8) of the Schedule because it provides a medical reason for the denial (the belief that the applicant’s injuries fall within the MIG) and justifies that position by referring to Dr. Dessouki’s report, the lack of any hospital or family doctor records being provided to the respondent beyond approximately 1 week after the accident, and the absence of any treatment plans being submitted for over 2 years. I find that the letter explains both how the medical documents that are available justify its decision as well as what medical documentation it does not have in its possession at the time the treatment plan was submitted.

32I further find that the clarity and level of detail in the letter is sufficient to enable an unsophisticated applicant to make an informed decision to accept or dispute the respondent’s denial. Therefore, I find that the applicant has not demonstrated that the denial letter dated January 23, 2024 was non-compliant with s. 38(8) of the Schedule and the provisions of s. 38(11) do not apply.

The respondent is not entitled to a repayment of the IRB

33I find that the respondent is not entitled to a repayment of the IRB.

34Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit that is “paid to the person” as a result of an “error on the part of the insurer”, the insured person or any other person, or as a result of a wilful misrepresentation or fraud.

35Section 52(2) and (3) provide the timelines for repayment requests. The insurer must give the person notice of the amount that is required to be repaid. If notice is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

36The burden is on the respondent to prove, on a balance of probabilities, that it is entitled to a repayment under s. 52.

37The respondent submits that it paid the applicant an IRB in the amount of $400 per week for approximately five months after the applicant returned to full-time work, resulting in an overpayment of $6,512.00. The respondent relies on its letter of September 23, 2021, confirming the applicant’s eligibility for IRB, an email dated December 15, 2021 requesting the applicant’s pay stubs, an email dated February 2, 2022 from the applicant’s representative that purports to attach the requested pay stubs, and the respondent’s letter of April 13, 2022, in which the respondent advises the applicant of the overpayment and requests repayment.

38The applicant submits that he received the IRB payments in good faith after the respondent assessed his eligibility and that a retroactive claw-back would be unfair.

39I acknowledge that the respondent’s letter of April 13, 2022 is within the 12 months required in s. 52(2), however the letter contains only the respondent’s conclusion that it has overpaid the applicant an IRB. I find that I have not been pointed or directed to evidence that the applicant was overpaid an IRB, as stated in the respondent’s letter of April 13, 2022. While the letter of April 13, 2022 refers to the pay stubs provided by the applicant as well as a worksheet the respondent used to calculate the overpayment set out in the letter, neither attachment is before the Tribunal. As a result, I am unable to determine whether the IRB was paid due to an error, willful misrepresentation or fraud. The respondent has not met its onus.

40Therefore, I find that the respondent is not entitled to a repayment of the IRB. As the respondent is not entitled to a repayment, it follows that interest is not payable.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.

Award

42The 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.

43As there were no benefits withheld or delayed, the respondent is not liable to pay an award.

ORDER

44I find that:

i. The applicant remains subject to the MIG;

ii. The treatment plan for physiotherapy submitted January 10, 2024 is not payable pursuant to s. 38;

iii. The respondent is not entitled to a repayment of the IRB in the amount of $6,512.00;

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and

v. As there are no overdue benefits and no repayments, no interest is payable.