Citation: Mahmoud v. Co-operators General Insurance Company, 2025 ONLAT 23-008908/AABS

Licence Appeal Tribunal File Number: 23-008908/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:

Ahmad Mahmoud

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Nidhi Vinayak, Counsel

For the Respondent: Emily Schatzker, Counsel

HEARD: In Writing

OVERVIEW

1Ahmad Mahmoud, the applicant, was involved in an automobile accident on March 29, 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 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:

1. 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?
2. Is the applicant entitled to a non-earner benefit of $185.00 per week from June 1, 2023 to date and ongoing?
3. Is the applicant entitled to $4,628.00 ($5,500.00 less $872.00 approved) for chiropractic services, proposed by Oxford Spine Centre in a treatment plan/OCF-18 (“plan”) dated December 1, 2023?
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s impairments from the accident fall within the definition of “minor” as defined by the Schedule. As a result, the applicant remains subject to the Minor Injury Guideline.

4The applicant is not entitled to a non-earner benefit, the treatment plan, interest, or an award.

PROCEDURAL ISSUE

Lack of Compliance with the Case Conference Report and Order – Applicant

5I find that the applicant did not comply with the Case Conference Report and Order (“CCRO”).

6The applicant’s evidence brief contained bookmarks that did not align with either the index provided, or the Tabs referenced in submissions. Further, the submissions were not paragraph or page numbered. As a result, I was unable to locate some of the evidence cited by the applicant.

ANALYSIS

Does the Minor Injury Guideline apply?

7I find that the Minor Injury Guideline (“MIG”) applies. The applicant is subject to the $3,500.00 treatment limit.

8Section 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.”

9An insured person 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 injury or condition that pre-dates the accident. There must also be compelling medical evidence stating that the condition precludes maximal medical recovery (“MMR”) 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 impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

10The applicant submits that he suffered catastrophic injuries from the accident and should not be limited to the treatment available under the MIG. He claims both physical and psychological impairments and relies on the clinical notes and records (“CNRs”) of his family doctor (“GP”), a 2019 psychotherapy assessment report by Dr. Hamed and a 2023 biopsychosocial assessment report by social worker Maryam Naji. The respondent submits that the applicant has been appropriately treated under the MIG and relies on the conclusions of its two s. 44 assessors, physiatrist Dr. Naaman and psychiatrist Dr. Hines, as well as the records of orthopaedic surgeon Dr. Elahall.

Physical Impairment

11The applicant submits that his impairments are severe and affect both his ability to carry out daily activities and his quality of life. He adds that he requires ongoing physiotherapy as a result.

12An OCF-23 from Physiotherapist J. Santhakumar dated May 9, 2022, approximately six weeks post-accident, identified sprain and strain injuries of the cervical spine, thorax, ribs, and wrist. The applicant was discharged a few months later on August 31, 2022, at his own request – because he was feeling better and decided to discontinue treatment.

13The applicant points to the CNRs of GP Dr. Chaker as evidence that he attended ongoing treatment at Total Wellness Clinic. He also states that an examination was done that found pain and dysfunction in his right knee. The applicant directs me in written submissions to Tab 7 of his evidence brief, where I was able to confirm Dr. Chaker’s notation that the applicant has pain and dysfunction in his right knee dating to before the accident. However, I was unable to find any mention of Total Wellness Clinic in Tab 7, or anywhere in the brief at all, due to the issue described above in paragraph six.

14The respondent did however supply some records of Dr. Chaker which document that the applicant had significant knee pain as well as back pain in August 2022. With regard to the back pain, a spinal x-ray on September 3, 2022 was normal, and kidney stones were later identified in 2023 (explaining the back pain). With regard to the knee pain, an ultrasound of the knee on August 29, 2022 identified tendinosis, while an MRI on April 4, 2023 revealed severe patella. The respondent approved treatment at Oxford Spine Centre in May 2023.

15The respondent submits that the applicant did not initially report any knee pain in relation to the accident. This aligns with information recorded later in a s. 44 assessment report by Dr. Naaman, who confirmed the applicant’s knee pain was pre-existing and unrelated to the accident.

16Apart from the knee pain, Dr. Naaman conducted an examination that demonstrated how the applicant had full range of motion and was independent in all activities despite some knee pain when driving. The applicant attended the examination with a cane but had a normal gait and good muscle strength. The examination was normal from a physical perspective, and the assessor diagnosed sprain and strain injuries that fall within the MIG. After a comprehensive neurological and musculoskeletal exam with medical file review, the outcome was a finding that there is no ongoing accident-related impairment.

17As a result, I find that the applicant has not met his burden to demonstrate a physical impairment that falls outside the definition of minor as a result of the accident. The CNRs of his GP confirm that he has knee pain. However, this is a pre-existing injury. I am persuaded by the results of Dr. Naaman’s physical examination as it was thorough, conducted in person, and included a medical file review. Dr. Naaman concluded that the applicant’s range of motion, neurological and musculoskeletal systems were all normal, and only sprains and strains occurred as a result of the accident. These injuries are all found in the definition of minor under the Schedule.

18Accordingly, a physical impairment under section 18(1) does not apply as a basis for removing the applicant from the MIG.

Pre-existing Medical Condition or Injury

19The applicant’s pre-accident medical history of knee pain originated in a soccer injury in 2013, as reported by the applicant to s. 44 assessor Dr. Naaman. There were two right knee surgeries in 2018, and post-surgery Dr. Elashall recommended injections, braces, physiotherapy, and exercises. The applicant’s pre-accident knee pain was documented by Dr. Hamed in 2019 for an Ontario Disability Support Program (“ODSP”) application, and by Dr. Chaker for the applicant’s Ontario Works file.

20At the time of the accident, the applicant did not initially report any knee pain due to the accident, or seek treatment for it, and when he did so on May 9, 2022, the OCF-23 indicated there was no prior injury that would affect the response to treatment and no barriers to recovery. By August of 2022, the applicant discharged himself from any further clinic-based treatment with an OCF-24. This aligns with Dr. Naaman’s finding, that the applicant’s knee pain was unrelated to the accident, and that any accident-related aggravation of the injury should have healed within two to three months of the accident.

21So, while it is clear the applicant has right knee pain, it originates prior to the accident and is a chronic but separate ailment. Notably, s. 44 assessor Dr. Namaan found that there was nothing to prevent the applicant from reaching MMR from the sprains and strains sustained in the accident.

22Accordingly, a pre-existing injury or condition under section 18(2) does not apply as a basis for removing the applicant from the MIG.

Chronic pain

23While the applicant does not argue specifically that he should be removed from the MIG on the basis of chronic pain, he does argue that his impairments are severe and persistent, with ongoing pain post-accident. While it is evident in the medical records that the applicant has knee pain, the pain dates from before the accident, and as outlined above, Dr. Namaan concluded that the applicant would have recovered from any accident-related aggravation of the existing knee injury within a few months.

24Thus, any ongoing or chronic knee pain is unrelated to the accident and there is no other evidence that the applicant was diagnosed with Chronic Pain Syndrome or has accident-related chronic pain.

25Accordingly, chronic pain does not apply as a basis for removing the applicant from the MIG.

Psychological Impairment

26The applicant submits that a pre-accident psychotherapy report by Dr. Hamed, dated January 5, 2019, contained diagnoses of Post-Traumatic Stress Disorder (“PTSD”), severe anxiety and depression, and phobias, all related to migration trauma. The applicant argues however that his condition was aggravated by the accident, and he attends ongoing psychotherapy.

27In support, he points to a post-accident biopsychosocial assessment report from social worker Naji conducted on August 29, 2023. The purpose of the assessment is for a social worker to identify the presenting problem of the client, while accounting for environmental, medical, and psychological factors that may affect care, treatment and rehabilitation.

28During the assessment, the applicant reported that he was fully independent before the accident, a status that he claims changed post-accident. Testing results were moderate for anxiety and severe for depression. Ms. Naji found that the applicant had difficulty managing everyday activities due to stress, anxiety, and depression among other symptoms.

29For its part, the respondent submits that the applicant has never reported any psychological issues due to the accident. It argues that the report is unreliable because Ms. Haji attributes the applicant’s mental health issues solely to the accident, without accounting for other relevant factors. It points to a CNR from Dr. Chaker one month before the accident, where he recorded that the applicant could not attend school or work due to the pain in his knees – a fact that demonstrates that he was not independent before the accident, as he had reported to Ms. Naji. Further, the report does not account for the applicant’s medical history of mental health issues.

30The respondent’s expert assessor, Dr. Hines, conducted a psychiatric assessment and document review. The resulting report dated May 13, 2024, notes that the applicant was uncooperative, a poor historian, and did not reference in much detail his past medical history of migration trauma. Dr. Hines concluded that the applicant’s reported symptoms did not meet the threshold for a diagnosis or impairment, and any current symptoms relate to his previous diagnosis of PTSD in 2013.

31Dr. Hines described the applicant as relaxed and noted that the applicant had found previous counselling sessions boring. He also recorded that the applicant stated he was independent for self-care, although needed some assistance with chores, and had a low mood due to his physical injuries, limitations, and financial issues. Dr. Hines concluded that the applicant does not require any treatment as a result of the accident and further, that there is no evidence the applicant’s mental health issues were aggravated by the accident.

32While the applicant states that the report of Ms. Naji supports a finding of psychological impairment, the conclusion of the assessor is not persuasive because it does not account for the applicant’s pre-accident life events and documented migration trauma. The s. 44 report of Dr. Hines is more compelling as he addresses the applicant’s symptoms with a view to all relevant factors, both pre- and post-accident, while confirming the accident did not worsen the applicant’s mental health condition.

33The applicant has not demonstrated on a balance of probabilities that he has a psychological impairment as a result of the accident. Thus, psychological impairment does not apply as a basis for removing the applicant from the MIG.

Conclusion

34Upon review of the evidence before me, the applicant has not met their burden to demonstrate that removal from the MIG is justified on any of the following bases: physical or psychological impairment, chronic pain, or a pre-existing condition.

35The applicant remains subject to the MIG and the $3,500.00 treatment limit.

Is the applicant entitled to a Non-Earner Benefit (“NEB”)?

36I find that the applicant is not entitled to a NEB of $185.00 per week for the time period from June 1, 2023 to date.

37Section 12(1) provides that an insurer shall pay a 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.”

38The 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. It is the burden of the applicant to demonstrate that his life circumstances have changed significantly enough to continuously prevent him from substantially engaging in the activities that he did before the accident.

39The applicant submits that his many injuries and impairments caused by the accident have a significant impact on his daily physical functions such as walking, bending, and lifting, and that it is difficult to walk more than one block. He underlines how the impairments to his right knee cause pain, swelling, tenderness, decreased range of motion and instability. He relies on a disability certificate (“OCF-3”) from chiropractor Dr. Alaloul at Oxford Spine Centre.

40The respondent’s position is that the OCF-3 does not support a finding of entitlement as the identified symptoms, such as a concussion, are not found elsewhere in the medical records, are part of an intake conducted over a year after the accident, and further, after the applicant had discharged himself from treatment.

41The applicant’s application (“OCF-1”) for accident benefits dated May 14, 2022, indicated that he was unemployed. He applied to ODSP once before the accident in 2019, and again after the accident in 2023. Neither application was successful. Also, before the accident, the applicant reported to OW that he suffered barriers to participation due to anxiety, and for physical activities like lifting, pulling, pushing, walking, etc.

42While the applicant does not offer a specific comparison of his pre- and post-accident activities, the evidence demonstrates that he was experiencing both physical and psychological limitations before the accident that were caused by a previous injury and psychological trauma.

43Over a year post-accident on May 25, 2023, the applicant submitted the OCF-3 from Dr. Alaloul. The OCF-3 identified his injuries as low back pain, pain in and around the spine and head, other headache syndromes, malaise and fatigue, and injury of the muscle-tendon at the wrist/hand. Further, Dr. Alaloul identified lifestyle problems, including sleep disorder, anxiety disorder, and post-concessional (sic) syndrome. Dr. Alaloul recorded that the applicant’s symptoms first appeared on February 29, 2022 – a date that I note is pre-accident. Dr. Alaloul also indicated on the OCF-3 that the applicant had a complete inability to carry on a normal life.

44The respondent highlights the findings of its s. 44 assessors for both the applicant’s physical and psychological condition. Both Dr. Naaman and Dr. Hines concluded that the applicant was ineligible for a NEB. Dr. Naaman confirmed that the applicant’s knee pain was unrelated to the accident and was due to a soccer injury dating to 2003. Dr. Hines found that any current psychological symptoms experienced by the applicant, while unfortunate, do not relate to the car accident but date to his challenges with PTSD and anxiety related to former life events dating back to 2013. Both assessors concluded that the applicant did not suffer a complete inability to carry on a normal life as a result of the accident.

45I find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from a complete inability to carry on a normal life as a result of the accident. Neither the OCF-3 he relies on, nor the findings of two separate s. 44 assessors support a finding of entitlement. Both assessors concluded that the applicant did not suffer a complete inability to carry on a normal life.

46Therefore, he is not entitled to the NEB in dispute.

The Treatment Plan – Entitlement and s. 38 claim

Entitlement

47I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan as I have found that the applicant’s injuries are properly treated within the MIG.

s. 38

48The applicant submits that the respondent’s denial letter was non-compliant with s. 38 of the Schedule because it did not provide a medical reason for the denial and instead made a technical legal argument to support the denial.

49The respondent submits that the denial letter specifically cites the diagnoses of Dr. Naaman, s. 44 assessor, and his recommendation for a home exercise program, rather than a facility-based plan. The respondent suggests that perhaps the applicant is mistakenly referring to the denial letter for the NEB in dispute.

50After reviewing the denial letter for the treatment plan in dispute, I find that there are medical reasons provided. The denial letter in question outlines:

i. the expenses that will be approved (i.e., $872.00 for documentation, chiropractic, physio, and acupuncture treatment);

ii. the expenses that will not be approved (i.e., $4,628.00 for documentation, chiropractic, physio, and acupuncture treatment);

iii. the medical and other reasons for the denied expenses (i.e., details of the examination results from the Physiatry Insurer’s Examination by Dr. Naaman dated July 19, 2023); and

iv. that the applicant remains subject to the MIG.

51Therefore, the evidence does not support a finding that the denial letter for the treatment plan is non-compliant with s. 38 of the Schedule.

Interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

53As no benefits are overdue, no interest applies.

Award

54The 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.

55The applicant submits that the issues in dispute represent both reasonable and modest claims. Further, he argues that the respondent failed to adjust the file fairly and delayed the applicant’s ability to manage his condition.

56The respondent denies the applicant’s assertion and submits that a difference of opinion is not grounds for an award, and that it relied on its s. 44 assessments to appropriately adjust the file.

57I agree with the respondent. I see no evidence before me to indicate that the respondent’s adjustment of the file was unreasonable. Rather, it relied on the opinions of its expert assessors.

58The applicant has not demonstrated entitlement to an award.

ORDER

59I order that:

i. The applicant remains subject to the Minor Injury Guideline.

ii. The applicant is not entitled to a non-earner benefit.

iii. The applicant is not entitled to the treatment plan.

iv. The applicant is not entitled to interest.

v. The applicant is not entitled to an award.

vi. The application is dismissed.