Licence Appeal Tribunal File Number: 23-007953/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:
Nosrah Ibrahim
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Nidhi Vinayak, Counsel
For the Respondent:
Mikal Daniel, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Nosrah Ibrahim, the applicant, was involved in an automobile accident on December 6, 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, Intact 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 limit (“MIG”)?
ii. Is the applicant entitled to $4,985.76 for chiropractic services, proposed by Spinetec Health Care Solutions in a treatment plan/OCF-18 (“plan”) dated March 16, 2022?
iii. Is the applicant entitled to $2,486.00 for an attendant care assessment, proposed by Meditecs Independent Medical Examination in a plan dated February 28, 2022?
iv. Is the applicant entitled to $2,881.50 for a mental care assessment, proposed by Meditecs Independent Medical Examination in a plan dated February 28, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?.
RESULT
3The applicant has not proven on a balance of probabilities that her injuries warrant removal from the MIG.
4The applicant is not entitled to the treatment plans in dispute.
5As there are no benefit payments that have been unreasonably withheld or delayed, no award is owing.
6As there are no overdue benefit payments, no interest is owing.
7The application is dismissed.
ANALYSIS
Minor Injury Guideline (MIG)
8Section 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.”
9An 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.
10The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG.
Chronic Pain with a functional impairment
11The applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment as a result of the accident.
12The applicant argues that she is suffering from serious permanent/chronic pain as a result of the subject accident. The applicant relies on the clinical notes and records (CNRs) of Guelph General Hospital, and the applicant’s family doctor Dr. Alkhalil. Additionally, the applicant relies on an OCF-18 completed by Ms. Wadood, physiotherapist on March 23, 2022.
13I find that the CNRs of Guelph General Hospital do not support the applicant as suffering from chronic pain with a functional impairment. The CNRs note that imaging undertaken produced unremarkable results. This testing included MR/Spine complete 3D, Foot radiograph, pelvis/hip/femur/knee radiograph, and chest imaging. A cervical spine CT noted a subluxation C1 relative to C2, but no associated fractures. The remainder of the cervical and lumbar spine was unremarkable.
14I find that the CNRs of Dr. Alkhalil do not support chronic pain with a functional impairment. The CNRs referenced by the applicant make no reference to the subject accident. The CNRs also do not note any issues with reporting by the applicant that would infer chronic pain.
15I place limited weight on the OCF-18s prepared by Ms. Wadood. While she notes functional limitations and barriers to recovery, this appears to be based solely on self reporting by the applicant. An OCF-18 is not sufficient evidence on its own to support a claim, rather, it needs to be accompanied by compelling medical evidence to support these claims. No objective medical evidence has been submitted to substantiate chronic pain with a functional impairment beyond self reporting by the applicant in the OCF-18s. The CNRs of the applicant’s doctor make no reference to the subject accident, or ongoing pain reports.
16The applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment.
Psychological impairment
17The applicant has not proven on a balance of probabilities that she suffers from a psychological impairment as a result of the subject accident.
18The applicant submits that she suffers from psychological injuries as a result of the subject accident. The applicant relies on the OCF-18 completed by Ms. Wadood, physiotherapist.
19I place limited weight on the psychological symptoms listed in the OCF-18 by Ms. Wadood dated March 23, 2022. As a physiotherapist, diagnosing psychological conditions are beyond her area of expertise. The applicant has not supplied any additional evidence that would support that she suffers from a psychological condition as a result of the subject accident.
20I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological impairment as a result of the subject accident.
21As such, the applicant has not established that her accident-related impairments warrant removal from the MIG.
22As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
23The applicant further argues that all of the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with s. 38(8).
24Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. If an insurer fails to provide the requisite denial, under s. 38(11)2 it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial is given.
Improper denials of the OCF-18s.
25I find that the applicant has not proven on a balance of probabilities that the respondent improperly denied the submitted OCF-18s.
26The applicant submits that the respondent violated s.38 of the Schedule in denying her OCF-18s. The applicant argues that the respondent must provide a “medical reason” when denying a treatment.
27In review of the respondent’s denials, I find that they properly denied the OCF-18s, including supplying sufficient reasons.
28In a letter to the applicant on March 30, 2022, the respondent states that in order to determine payment of benefits beyond the $3,500.00 MIG limit, there must be compelling evidence provided by a health practitioner. They requested ambulance and hospital records including test results and the discharge summary, general practitioner or family doctor records one-year pre accident to present and pre-accident clinical records one year prior to the accident to present.
29All further denials relied on the provided medical information to conclude that insufficient compelling medical evidence had been provided by a health practitioner to be considered removing the applicant from the MIG.
30Additionally, the respondent conducted two s.44 examinations to gather additional medical information to base their denial decisions on. The request for s.44 examinations were included in the denial letters, while subsequent denial letters included the conclusions of the s.44 examinations as reasoning for the denial.
31I find that the applicant has not proven that the respondent was non-compliant with s. 38(8) of the Schedule.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
Award
33The 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. As there are no benefit payments that have been unreasonably withheld or delayed, no award is owing.
ORDER
34I find that:
i. The applicant remains in MIG.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. As no benefit payments have been unreasonably withheld or delayed, no award is owing.
iv. As no benefit payments are overdue, no interest is owing.
v. The application is dismissed.
Released: May 1, 2025
Robert Rock
Adjudicator