Licence Appeal Tribunal File Number: 24-002015/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:
Jaire Marc-Ali
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Dagmar Boettcher
APPEARANCES:
For the Applicant:
Jeremy Magence, Counsel
For the Respondent:
Jeremy Hanigan, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Jaire Marc-Ali, the applicant, was involved in an automobile accident on December 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, Economical 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 $2,977.60 for chiropractic services, proposed by Pro Life Wellness Centre Inc. in a treatment plan/OCF-18 (“plan”), submitted April 26, 2022, and denied June 7, 2022?
iii. Is the Applicant entitled to $2,200.00 for a psychological assessment, proposed by Pro Life Wellness Centre Inc. in a plan, submitted August 10, 2022, and denied August 15, 2022?
iv. Is the Applicant entitled to $2,200.00 for a concussion assessment, proposed by Pro Life Wellness Centre Inc. in a plan, submitted August 30, 2022, and denied September 13, 2022?
v. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is removed from the MIG as she has met her burden and demonstrated, on a balance of probabilities, that her injuries fall outside the definition of a “minor injury” as defined in s. 3 of the Schedule.
4The applicant is not entitled to the treatment plans for chiropractic services, a psychological assessment, or a concussion assessment.
5As none of the benefits in dispute are owing, the applicant is not entitled to interest.
ADVERSE INFERENCE
6The respondent requests that I draw an adverse inference against the applicant for failing to produce several documents requested at her examination under oath (“EUO”). These documents were requested in correspondence dated March 24, 2024 from Forget Smith (respondent counsel) to Bergal Magence (applicant counsel) and include:
i. Videos taken at the scene of the accident
ii. Records, including attendance records, from Fit4Less located at Warden & Finch
iii. Complete short-term disability file from Manulife
iv. Income tax returns from three years pre-accident to present
v. Complete collateral benefits file from Manulife Financial from three years pre-accident to present, including benefits booklet and payment summary
vi. CNRs of Dr. Tong from three years pre-accident to present
7I note that the case conference report and order (“CCRO”) dated June 27, 2024 required the applicant to produce updated CNRs from Dr. Tong from April 24, 2024 to the case conference date of June 27, 2024. Because the CCRO contained a document exchange agreed to by the parties and required the applicant provide “Updated” CNRs from Dr. Tong for a three month period only, I am led to reasonably believe that CNRs had been provided previously. In fact, the respondent submissions include CNRs of Dr. Tong for several dates up to March 10, 2022.
8The respondent did not indicate what specifically it expected to find in the documents not produced. The respondent argued generally that the Tribunal should draw a negative inference that they do not exist or they do not support her case. The respondent also did not provide evidence to indicate they were prejudiced by the non-production of these records.
9The applicant provided no submissions on this issue.
10As the respondent did not say how they are relevant to the remaining issues in dispute, I make no finding in that regard and do not find it appropriate to make an adverse inference from their non-production.
ANALYSIS
Does the Minor Injury Guideline apply:
11I find that the applicant has proven on a balance of probabilities that she suffered from a concussion as a result of the accident, and that she should be removed from the MIG.
12Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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 from any accident-related minor injury 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. Jurisprudence has established that concussions are not part of the definition of a minor injury. In all cases, the burden of proof lies with the applicant.
14The applicant submits that she should be removed from the MIG because she sustained a concussion as a result of the accident, has a pre-existing condition, namely a previous concussion, and that she suffers from chronic pain. The applicant relies on the clinical notes and records (“CNRs”) of the family doctors, Dr. Martin Tong and Dr. Teresa Colelli, a Manulife Short Term Disability Physician’s Statement by Dr. Tong, a Seneca College Functional Limitation Assessment Form by Dr. Stacey Nolan, Chiropractor, CNRs of Pro-Life Wellness Centre, and a Disability Certificate completed by Kanica Berry, physiotherapist.
15The respondent submits that the applicant’s injuries fall within the MIG and include simple sprains/strains, that she was not formally diagnosed with a concussion, that she does not suffer from chronic pain. The respondent relies upon an Examination Under Oath, a Physiatry Examination report by Dr. Shariff Dessouki, a Psychology Examination report completed by Dr. Rodney Day, and a Independent Neurology Evaluation report completed by Dr. Galit Kleiner.
Did the applicant sustain a concussion as a result of the accident?
16I find that the applicant has demonstrated that she sustained a concussion because of the accident and, therefore, should be removed from the MIG.
17The applicant telephoned her family doctor on December 16, 2021, five days post-accident, and spoke with Dr. Teresa Colelli, as her family doctor was unavailable. She advised she had hit her head on the driver’s side window during the accident and complained of headaches on and off, a sensitivity to light, soreness on the left side of her face and neck where she hit the window, back, shoulder, and right ankle pain. Dr. Colelli’s notes state she suspected a mild concussion, prescribed anti-inflammatories, and requested the applicant follow-up with an in-person appointment.
18The applicant followed up with an appointment with Dr. Tong on December 17, 2021, in which Dr. Tong notes that he suspects a mild concussion with accompanying symptoms of headaches. Dr. Tong recommended rest and Tylenol for the applicant’s headaches. The applicant points me to the CNRs of Dr. Tong for the dates January 8, 2022, February 4, 2022, February 11, 2022, and February 13, 2022, in which Dr. Tong continued to assess the applicant with a suspected mild concussion. I am also directed to the CNRs of Pro-Life Wellness in which the applicant complains of headaches throughout January and February, 2022.
19I am directed by the applicant to a Manulife Short Term Disability Physician’s Statement dated January 8, 2022, in which Dr. Tong identifies concussion-related cognitive/mental impairments. I am also directed to a Seneca College Functional Limitation Assessment Form dated January 28, 2022, and completed by Dr. Stacey Nolan, Chiropractor in which Dr. Nolan diagnosed the applicant with whiplash associated disorder and post-concussion syndrome and recommended Seneca provide accommodations to the applicant from January 28, 2022 to April 21, 2022. I am pointed also to a Medical Certificate form for Employment Insurance (“EI”) benefits completed by Dr. Tong on February 13, 2022, wherein he stated that, in his opinion, the applicant was incapable of working until March 11, 2022, and within the comments section, Dr. Tong noted concussion, headaches, and myofascial back pain.
20I am also directed to the CNRs of Pro-Life Wellness Centre dated December 16, 2021, and January 21, 2022, in which the applicant’s physiotherapist Kanica Berry noted the applicant’s headaches, and provided a letter dated December 16, 2021 to the applicant recommending she not return to work for 4 weeks.
21Dr. Tong’s records indicate that on March 10, 2022 the applicant was cleared to go back to work without any restrictions.
22The respondent submits that there is insufficient evidence to suggest the applicant suffers from anything other than minor injuries or any physical or psychological disorders, or that she suffers from chronic pain, or a pre-existing condition. It also argues that the applicant was never formally diagnosed with a concussion, was never referred to a neurologist, and that the family doctor’s records indicate that he provided a letter clearing the applicant for work as of March 10, 2022, 89 days after the accident.
23The respondent also submits that the applicant did not attend her family doctor until December 17, 2021, on the sixth day after the accident and that the CNRs of Dr. Tong consistently noted a mild concussion was suspected, not diagnosed.
24The respondent also relies on a transcript of an Examination Under Oath performed with the applicant on March 23, 2022 during which the respondent submitted that the applicant had no difficulty with concentration and reported her headaches had significantly lessened. Additionally, the respondent submits the applicant’s testimony was confused and contradictory and undermines her self-reported symptoms.
25The respondent also points me to medical records that indicate the applicant travelled overseas to Ghana in May 2022, began a long-distance relationship in May 2022 during which she began to visit the United Kingdom, and in December 2023, travelled once again to Ghana. The respondent submits that the applicant had fully recovered functionally within a brief period of time.
26The respondent also relies upon a Physiatry Examination report completed by Dr. Shariff Dessouki dated July 22, 2022, a Psychology Examination report completed by Dr. Rodney Day dated August 6, 2024, and an Independent Neurology Evaluation report completed by Dr. Galit Kleiner dated August 6, 2024. The respondent maintains that Dr. Dessouki concluded the applicant’s injuries were minor within the meaning of s. 3 of the Schedule and that Dr. Day concluded that the psychometric tests revealed no concerns. The respondent also relies upon the neurological report dated August 6, 2024, in which Dr. Kleiner concluded there was no evidence of mental impairment diagnosable within the DSM-V, and that the applicant’s headaches were unrelated to the accident. Dr. Kleiner stated there was no indication of a neurological impairment.
27I am not persuaded by the respondent’s submissions. In Ontario, a physician, a nurse practitioner, or a neuropsychologist can diagnosis a concussion. Dr. Tong is a physician and as such, is qualified to assess the possibility of a concussion. Although I am not bound by a recent decision within Singh v Aviva General Insurance, 2025 CanLii 3674, in which the Tribunal found that it is not necessary to be referred to a neurologist to confirm concussion symptoms, I do find the arguments within the decision persuasive. I find also that because more than one medical professional has noted concussion-related injuries or possible concussion, I favour the evidence put forward by the applicant and find that it satisfies the applicant’s onus on a balance of probabilities.
28The respondent’s submissions suggest the injuries were less severe because the applicant’s concussion symptoms appeared to be improving by February 4, 2022 and she was cleared to return to work on March 10, 2022. I find that this does not mean that the applicant did not suffer from a concussion as a result of the subject accident. With regard to the respondent’s submissions regarding the applicant’s travel post-accident, I find that the applicant did travel on several occasions, after she was cleared to return to work by Dr. Tong.
29I agree with the respondent’s argument that the applicant’s claims of a pre-existing concussion are not supported by the evidence I was directed toward. The respondent submits there were no clinical notes provided to substantiate a prior concussion, and the notations of a pre-existing concussion are self-reported references. References to headaches prior to the motor vehicle accident are referred to by Dr. Tong as “tension headaches”.
30I find that the applicant did sustain a possibility of a mild concussion with concussion related symptoms at the time of the accident on December 11, 2021. As concussions are not considered a minor injury, removal from the MIG is warranted.
31Having found that the evidence indicates that the applicant sustained concussion related injuries as a result of the accident, it is unnecessary to address the other exclusion criteria (e.g. chronic and a pre-existing condition) that she is claiming.
The applicant is not entitled to the treatment plan for chiropractic services
32I find that the applicant has not demonstrated on a balance of probabilities that the plan for chiropractic services is reasonable and necessary.
33To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating, on a balance of probabilities, that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
34The plan dated April 26, 2022 for chiropractic services was proposed by Kanica Berry, Physiotherapist. The plan proposes an assessment, 10 sessions of therapy by Dr. Stacey Nolan, Chiropractor, 10 sessions of physiotherapy, 8 sessions of massage therapy and one session of documentation support activity. The goals of the plan are pain reduction, increase strength, range of motion and endurance, improve joint mobility, reduce muscle tightness, and to return to normal living and pre-accident work activities.
35The applicant relies upon the ManuLife STD form completed by Dr. Tong in which Dr. Tong notes that the applicant had a prior concussion in 2019 and that the pre-existing condition was aggravated by the subject motor vehicle accident. The applicant also pointed me to the CNRs of Pro-Life Wellness which showed that the applicant’s injuries and impairments improved while receiving treatment and stagnated when treatment was stopped.
36The respondent submits there is no objective evidence to support that the applicant suffered from a concussion in 2019 and no CNRs were provided for the prior concussion.
37I find that the applicant has not made submissions with respect to why the plan is reasonable and necessary, or that the goals within the treatment plan relate to concussion-related injuries. Other than by generally referring to the recommendation made in the proposed plan, I conclude that the applicant has not met her onus in proving that the treatment plan is reasonable and necessary.
The applicant is not entitled to the treatment plan for a psychological assessment
38I find that the applicant has not demonstrated on a balance of probabilities that the plan for psychological services is reasonable and necessary.
39The plan dated August 10, 2022 for psychological services was proposed by Dr. Konstantinos Papazoglou, Psychologist. The plan proposes an assessment and one session of documentation support activity. The goals of the plan are pain reduction and management of trauma symptoms, anxiety, depression and driving anxiety, with a return to normal living, pre-accident work activities, and pre-accident psychological functioning.
40The applicant relies upon Dr. Papazoglou’s notation of adjustment disorder and isolated phobias as providing compelling evidence that the plan is reasonable and necessary. The applicant makes no other submissions and does not point me to any corroborating evidence in this regard.
41The respondent relies upon the Psychological Evaluation report of Dr. Day dated August 6, 2024 and submitted that the report concludes that the applicant does not require psychological treatment and that the treatment plan for a psychological assessment is not reasonable or necessary.
42I find that the applicant has not made persuasive submissions with respect to why the plan for a psychological assessment is reasonable and necessary, especially in light of the fact that the plan is dated eight months after the accident. The plan also does not specify how the proposed goals would be met to a reasonable degree, or that the overall costs of achieving the goals are reasonable.
The applicant is not entitled to the treatment plan for a concussion assessment
43I find that the applicant has not demonstrated on a balance of probabilities that the plan for a concussion assessment is reasonable and necessary.
44The plan dated August 30, 2022 for a concussion assessment was proposed by Dr. James Fung, Chiropractor. The plan proposes one assessment and one session of documentation support activity. The goals of the plan are to assess and confirm the traumatic head injury and evaluate the extent of the concussion injury. The plan states that the goals will be evaluated through a number of tests, a standard assessment of concussion, and several neurological screening tests.
45The applicant relies on one CNR dated September 15, 2022 in which Dr. Tong saw the applicant for ongoing headaches.
46The respondent submits that Dr. Fung is not qualified to make a concussion assessment and also submits that there is no objective evidence to support the claim of a previous concussion in 2019.
47The plan is dated eight months after the accident and five months after the family doctor cleared that applicant back to work. The applicant fails to establish that the goals are reasonable and necessary and how they would be met to a reasonable degree. I find therefore that the applicant has not made persuasive submissions with respect to why the plan for a concussion assessment is reasonable and necessary.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
49As no benefits are payable, no interest is payable.
ORDER
50For the reasons above, I find that:
i. The applicant’s injuries warrant removal from the MIG.
ii. The applicant is not entitled to the treatment plans for chiropractic services, a psychological assessment, or a concussion assessment.
iii. As none of the benefits in dispute are owing, the applicant is not entitled to interest.
Released: December 22, 2025
Dagmar Boettcher
Adjudicator