Mohamoud v. Jevco Insurance Company, 2025 CanLII 135607

Licence Appeal Tribunal

Citation: Mohamoud v. Jevco Insurance Company, 2025 ONLAT 24-003040/AABS

Licence Appeal Tribunal File Number: 24-003040/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:

Salad Mohamoud

Applicant

and

Jevco Insurance Company

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Asal Karimi, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Salad Mohamoud, the applicant, was involved in an automobile accident on December 27, 2022, 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 Jevco Insurance Company, the respondent, 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 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 $3,185.19 for physiotherapy services, proposed by Wynford Health Clinic in a treatment plan/OCF-18 (“plan”) dated April 28, 2023?

iii. Is the applicant entitled to $2,641.62 for aquatic therapy, proposed by 2430307 Ontario Ltd. in a plan dated July 14, 2023?

iv. Is the applicant entitled to $2,300.00 for and neurological assessment., proposed by 2430307 Ontario Ltd. in a plan dated May 3, 2023?

v. Is the applicant entitled to $1,293.80 for a functional abilities evaluation (FAE), proposed by 2430307 Ontario Ltd. in a plan dated March 29, 2023?

vi. Is the applicant entitled to $1,050.57 for an exercise program, proposed by 2430307 Ontario Ltd. in a plan dated May 3, 2023?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant’s injuries are minor as defined by s.3 of the Schedule and therefore the applicant is subject to treatment within the MIG.

ii. The treatment plans are not payable, except for the plan for $2,300.00 for neurological assessment. because the respondent did not comply with section 38(8) of the Schedule. The plan is payable once incurred.

iii. Interest applies to the plan for $2,300.00 for an orthopedic assessment.

ANALYSIS

MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are 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.”

5An 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. In this case, the applicant relies on a chronic pain impairment and a psychological condition to be removed from the MIG.

The applicant’s physical injuries are minor and remain in the MIG.

1I find, upon review of the evidence and submissions, that the applicant has not met his burden to establish non-minor physical impairments.

2The applicant relies on the disputed OCF-18’s for physiotherapy services, aquatic therapy, an exercise program, for a functional abilities’ evaluation and an orthopedic assessment. The applicant bears the burden of proof to establish, on a balance of probabilities, that his injuries are not minor and therefore fall outside the MIG. I find that the applicant has not directed me to any corroborating evidence that would persuade me that he is warranted removal from the MIG. An OCF-18 alone is not sufficient medical evidence to establish that an applicant sustained non-minor physical impairments to warrant removal from the MIG. Rather, medical evidence should be led in support of the impairments. The applicant raises in his submissions concerns regarding the respondent’s alleged failure to comply with notice requirements under s. 38(8) of the Schedule. While procedural compliance is important and will be addressed in the section below, these submissions do not provide substantive medical evidence to support the claim that the injuries fall outside the MIG.

The applicant does not suffer from a psychological condition.

3To establish psychological impairments, the applicant relies on the disputed OCF-18 plan prepared by Dr. J. Gosselin, Psychologist, dated May 3, 2023, and an Insurer Examination (IE) conducted by Dr. R. Woods, Psychologist, dated March 8, 2023. The applicant states that he has sustained a psychological impairment and also, he is experiencing pain, discomfort and limitations with respect to the following: neck pain, cervical lumbar thoracic pelvic pain, personality change and behavioral disturbances including anxiety, depression and personality disorder, sleep disturbances, changes in strength, muscle tone and muscle bulk, disturbances of posture and coordination.

4The respondent submits that no treating practitioner, not even the OCF-18 practitioner, Dr. J. Gosselin, Psychologist, diagnoses the applicant with a DSM-V impairment. The respondent states that it should also be noted that the applicant’s submissions of psychological impairment are in direct contradiction to the statements the applicant made to its s. 44 IE assessor, Dr. Woods, Psychologist in March 2023. Dr. Woods noted in his report that the applicant denied experiencing any significant symptoms of depression or anxiety, any panic symptoms, or episodes.

5The respondent indicates that Dr. Woods noted the applicant could consult a psychologist or other mental health professional at any time after the accident. However, the applicant reported that he did not require any specific psychological treatment as a result of the accident.

6Further, Dr. Woods provisionally diagnosed the applicant with adjustment disorder and somatic symptom disorder. However, Dr. Woods concluded the diagnosis is provisional and not definitive, and that the applicant remains in the acute recovery phase (less than six months post-accident), during which further spontaneous recovery is expected. Dr. Woods found that the psychological symptoms described did not meet the threshold for a DSM-V diagnosis that would justify removal from the MIG.

7The applicant bears the burden of proving that his psychological injuries fall outside of the MIG. I find the applicant has not provided sufficient evidence to support this. His arguments focus on the respondent’s alleged failure to meet notice requirements under s. 38(8) and rely on Dr. Woods’ report. However, Dr. Woods concluded the applicant remains in the acute recovery stage, further recovery is expected, and the applicant does not meet the criteria for a psychological diagnosis.

8I agree with Dr. Woods as he states the applicant is technically in the acute stage of recovery, six months since the date of loss, with respect to his subject accident impairment, further spontaneous recovery can be expected as part of the normal ‘healing’ process.

9I find the applicant has not met his onus on a balance of probabilities that he should be removed from the MIG for his psychological injuries.

10I have determined the applicant’s injuries fall within the MIG, and therefore, need not consider whether the treatment plans are reasonable and necessary; I must still determine if the applicant is entitled to the disputed OCF-18’s as he argues the respondent’s denials were non-compliant with s. 38(8) of the Schedule.

11In terms of the sufficiency of the denials, the applicant argues that the denial notices issued by the respondent do not comply with the requirements of section 38(8) of the Schedule.

12Section 38(8) requires an insurer to inform an insured person, within ten 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 an impairment to which the MIG applies.

13The respondent asserts that the denials are compliant with the Schedule. The respondent argues that it is sufficient for the denials to say that the applicant’s injuries fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent points out the applicant submitted, the disputed OCF-18s without corroborating evidence to support his claim. As a result of the limited amount of medical documentation provided by the applicant, the respondent submits that its medical reasons were sufficient.

14The standard for sufficient notice is contained in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), In her decision, Executive Chair Lamoureux states, at paragraph 19:

[…] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. An insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

OCF-18 for goods/services in the amount of $2,300.00.

15The applicant submitted an OCF-18 treatment plan requesting $2,300.00 for an neurological assessment. The respondent denied the treatment plan on July 31, 2023, citing its similarity to a previously denied plan. The earlier denial was based on a s. 44 IE conducted by Dr. Safir on May 18, 2023. The insurer enclosed Dr. Safir’s report, which concluded that there was no clinical indication for further formal facility-based physical rehabilitation beyond that afforded by the MIG.

16The respondent relies on Dr. Safir’s IE to justify the denial of the neurological assessment. However, the report specifically addresses physical rehabilitation, both active and passive. It does not appear to assess or comment on the need for neurological evaluation, which is a distinct medical specialty involving cognitive, sensory, and neurological functioning.

17The proposed treatment plan is for a neurological assessment, not physical rehabilitation. Therefore, the respondent’s reliance on an IE focused solely on physical therapy is not sufficient to justify the denial of a neurological assessment. Each treatment plan must be evaluated on its own merits, particularly when it involves a different modality or medical discipline.

18I find under s. 38 of the Schedule, the insurer is required to provide clear and specific reasons for denying a treatment plan. A general reference to a prior IE that does not address the proposed treatment is not adequate to meet this requirement. The respondent’s notice fails to explain why a neurological assessment is not reasonable or necessary in light of the applicant’s injuries.

19I find that the respondent’s denial of the OCF-18 dated July 31, 2023, for a neurological assessment in the amount of $2,300.00 was not supported by appropriate medical evidence and did not comply with the notice requirements under s. 38 of the Schedule. Accordingly, I find, the applicant is entitled to the proposed goods and services outlined in the disputed treatment plan, once incurred, in accordance with s. 38(11) of the Schedule.

The OCF-18 for $ 2,641.62 for goods and services

20The applicant submitted an OCF-18 treatment plan on July 20, 2023, requesting $2,641.62 for goods and services. The respondent initially denied the plan on July 21, 2023, citing insufficient medical documentation to support that the applicant’s injuries fall outside the MIG. On July 28, 2023, the respondent issued a follow-up letter advising that the denial was based on the findings of a prior s. 44 Insurer Examination conducted by Dr. Safir. The respondent also indicated that a further s. 44 IE was required to assess whether the treatment plan was reasonable and necessary and whether the applicant’s injuries warranted removal from the MIG. A Notice of Examination was enclosed.

21Subsequently, on October 13, 2023, the applicant was advised that based on a paper review IE report by Dr. Safir dated September 12, 2023, the applicant’s injuries were deemed to fall within the MIG, and the treatment plan was not considered reasonable or necessary.

22The respondent relies on the insurer examination conducted by Dr. Safir, which was based on a paper review and concluded that the applicant’s injuries fall within the Minor Injury Guideline. The report did not identify any objective clinical findings or impairments that would warrant removal from the MIG. The applicant has not provided any additional medical documentation or persuasive evidence to rebut this classification or to establish that the proposed treatment plan is reasonable and necessary in light of the injuries sustained. In the absence of such evidence, I accept the respondent’s position.

23The respondent complied with procedural requirements under s. 38 by providing notice of the IE., enclosing the IE report with its denial and offering a clear rationale for the denial based on medical opinion. There is no indication that the respondent failed to meet its obligations under s. 38 or s. 44 of the Schedule in relation to this treatment plan.

24I find based on the evidence presented, that the applicant has not provided sufficient medical documentation to establish that his injuries fall outside the MIG. The respondent’s denial of the OCF-18 dated July 20, 2023, in the amount of $2,641.62 is supported by the findings of the s. 44 IE and complies with the procedural requirements under the Schedule. Accordingly, the treatment plan is not payable.

OCF-18 for $3,185.19 for goods and services

25The applicant submitted an OCF-18 treatment plan on May 3, 2023, requesting $3,185.19 for goods and services. The respondent denied the plan on May 12, 2023. On June 2, 2023, the respondent issued a follow up letter advising that the denial was based on the similarity of the proposed treatment to a previously denied plan. The earlier denial was supported by a s. 44 IE conducted by Dr. Safir on May 18, 2023. Dr. Safir’s report concluded that there is no clinical indication for the provision of any further formal facility-based physical rehabilitation, either active or passive in nature, beyond that afforded by the MIG. The respondent enclosed Dr. Safir’s report with its correspondence.

26The respondent’s denial is based on the findings of Dr. Safir’s IE, which concluded that the applicant’s injuries do not warrant treatment beyond the scope of the MIG. The IE specifically addressed the appropriateness of further facility-based physical rehabilitation and found no clinical indication for such treatment.

27I find the applicant did not submit additional or updated medical documentation to rebut the MIG classification or to demonstrate that the proposed treatment plan was reasonable and necessary in light of the injuries sustained.

28The respondent complied with procedural requirements under s. 38 and s. 44 of the Schedule by providing timely notice of denial, enclosing the relevant IE report, and offering a clear rationale for the denial based on medical opinion.

29The respondent’s denial of the OCF-18 dated May 3, 2023, in the amount of $3,185.19 is supported by the findings of the s. 44 IE and complies with the procedural requirements under the Schedule. Accordingly, the treatment plan is not payable.

OCF-18 for functional abilities evaluation

30The applicant submitted an OCF-18 on April 11, 2023, requesting $1,293.80 for goods and services. On April 23, 2023, the respondent issued a letter advising that it did not possess medical evidence suggesting that the applicant sustained injuries outside the scope of the MIG. The respondent further advised that a s. 44 IE was required to assess whether the treatment plan was reasonable and necessary. A Notice of Examination was enclosed.

31On June 2, 2023, the applicant was advised that, based on the enclosed s. 44 IE (Paper Review) Report by Dr. Safir dated May 18, 2023, the applicant’s injuries were deemed to fall within the MIG, and the proposed treatment plan was not considered reasonable or necessary.

32The respondent’s denial is based on the findings of Dr. Safir’s IE, which concluded that the applicant’s injuries do not warrant treatment beyond the MIG. The report did not identify any clinical findings that would support a diagnosis or impairment outside the MIG threshold. The applicant did not submit additional medical documentation to rebut the MIG classification or to demonstrate that the proposed treatment plan was reasonable and necessary in light of the injuries sustained. The respondent complied with procedural requirements under s. 38 and s. 44 of the Schedule by providing timely notice of denial, enclosing the relevant IE report, and offering a clear rationale for the denial based on medical opinion. There is no indication that the respondent failed to meet its obligations under the Schedule in relation to this treatment plan.

33I find based on the evidence presented, that the applicant has not provided sufficient medical documentation to establish that his injuries fall outside the MIG. The respondent’s denial of the OCF-18 dated April 11, 2023, in the amount of $1,293.80 is supported by the findings of the s. 44 IE and complies with the procedural requirements under the Schedule. Accordingly, the treatment plan is not payable.

OCF-18 for an exercise program

34The applicant submitted an OCF-18 treatment plan on May 24, 2023, requesting $1,050.57 for goods and services for an exercise program. The respondent denied the plan on May 31, 2023. On June 2, 2023, the respondent issued a letter advising that the denial was based on the similarity of the proposed treatment to a previously denied plan. The earlier denial was supported by a s. 44 Insurer’s Examination conducted by Dr. Safir on May 18, 2023. Dr. Safir’s report concluded that there is no clinical indication for the provision of any further formal facility-based physical rehabilitation, either active or passive in nature, beyond that afforded by the MIG. The respondent enclosed Dr. Safir’s report with its correspondence and relied on it under s. 44 of the Schedule to support its denial.

35The respondent’s denial is based on the findings of Dr. Safir’s IE, which concluded that the applicant’s injuries do not warrant treatment beyond the scope of the MIG. The IE specifically addressed the appropriateness of further facility-based physical rehabilitation and found no clinical indication for such treatment. The respondent complied with procedural requirements under s. 38 and s. 44 of the Schedule by providing timely notice of denial, enclosing the relevant IE report, and offering a clear rationale for the denial based on medical opinion. There is no indication that the respondent failed to meet its obligations under the Schedule in relation to this treatment plan.

36I find based on the evidence presented, that the applicant has not provided sufficient medical documentation to establish that his injuries fall outside the MIG. The respondent’s denial of the OCF-18 dated May 24, 2023, in the amount of $1,050.57 is supported by the findings of the s. 44 IE and complies with the procedural requirements under the Schedule. Accordingly, the treatment plan is not payable.

37All of the disputed treatment plans are not payable, except for the plan for $2,300.00 for an orthopedic assessment, which is payable pursuant to s. 38(11) when incurred.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to the plan for $2,300.00 for an orthopedic assessment only.

ORDER

39On the totality of the evidence, I find that:

i. The applicant’s injuries are minor as defined by s.3 of the Schedule and therefore the applicant is subject to treatment within the MIG.

ii. The treatment plans are not payable, except for the plan for $2,300.00 for an orthopedic assessment, because the respondent did not comply with section 38(8) of the Schedule. The plan is payable once incurred.

iii. Interest applies to the plan for $2,300.00 for a neurological assessment. only.