Licence Appeal Tribunal File Number: 24-001406/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:
Rayan Alsafadi
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sarah Guergis
APPEARANCES:
For the Applicant:
Mobina Khan, Counsel
For the Respondent:
Stefan Sistilli-Sguazzin, Counsel
HEARD:
In Writing
OVERVIEW
1Rayan Alsafadi, the applicant, was involved in an automobile accident on January 28, 2023, 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, TD 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? Note: The parties agree the MIG limits have not been exhausted and there is $1,200.00 remaining.
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from November 17, 2023, and ongoing?
iii. Is the applicant entitled to $4,373.10 for an orthopaedic assessment, proposed by Meditecs, in a treatment plan/OCF-18 (“OCF-18”) dated February 13, 2023?
iv. Is the applicant entitled to $2,867.95 for an attendant care assessment, proposed by Meditecs, in an OCF-18 dated February 13, 2023?
v. Is the applicant entitled to $4,373.10 for a psychological assessment, proposed by Meditecs, in an OCF-18 dated February 13, 2023?
vi. Is the applicant entitled to $8,117.72 for acupuncture treatments, proposed by Spinalcare, in an OCF-18 dated February 13, 2023?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the Applicant is not removed from the MIG.
4I find that the Applicant is not entitled to NEB.
5I find that the Applicant is not entitled to the plans in dispute as they have not been removed from the MIG.
6I find that the Applicant is not entitled to interest.
7I find that the Applicant is not entitled to an award.
PROCEDURAL ISSUES
Breach of Case Conference Report and Order
8The Respondent submits that the Applicant included evidence in their written submissions which was not previously served on the Respondent and that they have cited evidence that was not included in their written submissions.
9Additionally, the Respondent submits that it did not receive the documents which were requested and ordered to be produced in the case conference report and order. It submits that the Applicant has prejudiced its ability to know the case to meet and amounts this to a hearing by ambush. Further, it submits that this has prevented the Respondent from having any assessors review the updated medical evidence.
10The Respondent submits that the Applicant should be barred from relying on the aforementioned evidence for failure to comply with the Rules and prejudicing the Respondent.
11The Applicant does not address this in their written submissions, nor were reply submissions received by the Tribunal.
12I considered the Respondent’s submissions when adjudicating the issues in dispute. I did review the Applicant’s evidence in my overall review of the case; however, the Applicant was not removed from the MIG, no plans were found to be owing, nor was NEB found to be owing. Therefore, I find there is no prejudice to the respondent.
ISSUES
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?
13I find that the Applicant is not removed from the MIG.
14Section 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.”
15An 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.
16The Applicant submits that they should be removed from the MIG limits because their injuries are outside of the MIG and the treatment plans in dispute are all reasonable and necessary. They submit 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. However, the Applicant does not point me to the medical evidence which would establish that these injuries occurred.
17They further submit that the Respondent’s failure to comply with s.38(8) removes them from the MIG. However, s.38(8) is not grounds for MIG removal.
18The Applicant submits that the medical evidence clearly indicates that their injuries are more severe and persistent. This includes documented ongoing symptoms, the necessity of extensive physical therapy. The Applicant submits that the MIG is not applicable in cases where the injury causes a substantial and enduring impact on a person’s life, which is evident in applicant case. Therefore, the insurer’s reliance on the MIG as a basis for denial overlooks the comprehensive nature of injuries and the appropriate treatments prescribed for applicant condition. They further submit that the insurer’s position fails to acknowledge that the MIG was never intended to encompass the severity and complexity of applicant specific injuries and ongoing challenges.
19I acknowledge the Applicant’s submissions, however, the Applicant does not point me to the specific medical evidence they are relying on for these submissions.
20The Applicant included a disability certificate (OCF-3) in their evidence. This report mentions foot and knee pain, aggravation of concussion symptoms from previous MVA, headaches, dizziness, nausea, neck and back pain.
21The Respondent further submits that the Applicant’s injuries are predominantly minor, and they have provided no records to demonstrate they should be removed from the MIG.
22The Respondent relies on Ruffolo v. Travelers Canada, 2023 ONLAT 20-014871/AABS, and submits that submits that the OCF-3 does not in itself establish whether an applicant has sustained a non-minor injury and that it is not a comprehensive assessment of injuries.
23The Respondent further relies on the report of Dr. Amena Syed, psychologist, from July 13, 2024, and Dr. Jennifer Gordon, physiatrist, from June 1, 2023. It submits that both assessors determined that there were no injuries which would remove the Applicant from the MIG.
24I considered the parties submissions and found that the Applicant has not pointed me to their relied upon evidence which would establish the grounds to remove the Applicant from the MIG. I do not find that the Applicant has met their burden to demonstrate that the Applicant’s injuries are outside of the MIG.
25Therefore, the Applicant is not removed from the MIG.
26As the Applicant is not removed from the MIG, the reasonableness and necessity of the plans are not assessed. However, s. 38(8) is assessed below.
27I find that the Respondent has not been in breach of s. 38(8) and therefore, s. 38 (11) is not triggered.
28S.38(8) states that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
29The Applicant submits that the denial letters in this case do not include any meaningful discussion about the Applicant’s injuries or symptoms, or their bearing on the proposed treatment and assessment. That omission is specifically what the amendment to the Schedule in 2014, which added the requirement of a ‘medical reason,’ was designed to discourage. The Respondent was obliged to re-engage with the medical evidence that it had on file and justify its denial in relation thereto. It declined to do so, relying instead on a technical legal argument.
30The Respondent submits that the Applicant did not include the denials in their submissions or evidence. Further, that on April 3, 2024, the Respondent sent correspondence scheduling s. 44 Insurer Examination (IE) assessments with the Applicant.
31I agree with the Respondent that I was not pointed to evidence that the denials were improper under s.38(8). The Applicant’s index in their evidence document brief, points me to one denial letter on page 209. It is attached to an OCF-18 from July 15, 2022, and the denial letter is dated July 28, 2022. The timelines are in accordance with s.38(8). Therefore, s.38(11) is not triggered.
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from November 17, 2023, and ongoing?
32Section 12(1) of the Schedule provides that an insurer shall pay an NEB 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) 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 NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
33The Applicant submits that as a result of the accident, they have experienced cognitive difficulties, including impaired concentration and memory. Further, that they have significant physical impairments, including no range of motion in thier left shoulder and leg, reliance on assistance for transfers and stairs, and an inability to independently perform daily activities. Additionally, they report ongoing anxiety and depression, further affecting his overall functioning. Despite regular therapy and medical follow-ups, no improvements have been observed, and the remains dependent on others for basic mobility and care.
34On the evidence before me, I am unable to engage in the analysis required by Heath to determine if the applicant suffers from a complete inability to carry on a normal life. The applicant has not pointed me to details of their pre-accident activities or demonstrated how their participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to the applicant, how they were prevented from engaging in the activities they normally engaged in pre-accident or evidence of the frequency and time commitments of her pre-accident activities. In the absence of this information, it is not possible to compare the applicant’s pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.
35The Respondent submits that there is no direct evidence from the Applicant, and there is no evidence of any type as to which of his pre-accident activities were the most important to him or significant. The Applicant has not adduced any medical evidence to substantiate that they have a complete inability to carry on a normal life and has failed to show that they are entitled to NEBs.
36The Respondent relies on an IE conducted by Dr. Gordon (physiatry) on June 1, 2023, and Dr. Syed (psychologist), on July 31, 2024 and an in-home occupational therapy assessment by Mr. Atul A. Kaul (occupational therapist), on May 11, 2023.The Respondent notes that both doctors concluded that the Applicant did not satisfy the test demonstrating entitlement to NEBs.
37Further, in the in-home occupational therapy assessment, the applicant reported that his status in regard to his abilities remain as they were prior to the motor vehicle accident of January 28, 2023.
38As the Applicant has not provided evidence or submissions that allow me to conduct the necessary analysis to establish if they are entitled to NEB, I find that they have not met their onus.
39Therefore, I find on a balance of probabilities that the Applicant is not entitled to NEB.
Interest
40As no treatment is payable, pursuant to s. 51 of the Schedule, no interest applies.
Award
41I find no award is owing.
42The applicant sought an award under s. 10 of Reg. 664. They submitted that the Respondent's actions in delaying or withholding payments were unjustified, causing unnecessary financial hardship to the Applicant. Further, that the insurer is expected to handle claims in good faith and provide timely compensation when benefits are due. By failing to do so, the Respondent has not only breached its statutory duty but has also acted contrary to the consumer protection principles underlying Ontario’s accident benefits scheme. The Applicant submits they are therefore entitled to a special award to penalize the Respondent's conduct and ensure compliance with fair claims-handling practices.
43The Applicant did not point me to evidence to establish the Respondent’s unreasonable withholding or delaying of benefits in their written submissions.
44The Respondent submits that the Applicant is not entitled to a special award. Further, that the Applicant failed to produce particulars of the log notes, medical documentation and other production requests, as ordered in the case conference report and order. Further, that it promptly scheduled multiple examinations to medically assess the file.
45The Respondent relies on J. G. v Travelers Canada, 2018 CanLII 76431 (ON LAT), which held that, "unreasonable withholding or delaying of benefits is “behavior by an insurer which was excessive, imprudent, stubborn, unyielding or immoderate, in withholding or delaying payments.” An award is not punishment because of differing view of the file.
46I do not find the Applicant has pointed me to evidence which would establish the Respondent’s unreasonable withholding or delaying of payments, nor of their excessive, imprudent, stubborn, unyielding or immoderate behaviour.
47Therefore, no award is owing,
ORDER
48I find that the Applicant is not removed from the MIG.
49I find that the Applicant is not entitled to NEB.
50I find that the Applicant is not entitled to the plans in dispute as they have not been removed from the MIG.
51I find that the Applicant is not entitled to interest.
52I find that the Applicant is not entitled to an award.
Released: December 16, 2025
Sarah Guergis
Adjudicator