Licence Appeal Tribunal File Number: 23-009299/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:
Majida Ghandour
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Carlos A Ortiz, Paralegal
For the Respondent: Sunjay Mistry, Paralegal
HEARD: By way of Written Submissions
OVERVIEW
1Majida Ghandour, the applicant, was involved in an automobile accident on November 23, 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 Mutual 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:
Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
Is the applicant entitled to $2,693.75 for physiotherapy treatment, proposed by MapleCare Physiotherapy Clinic in a treatment plan dated May 11, 2022?
RESULT
3For the reasons below, I find that:
The applicant has not established that her accident-related impairments warrant removal from the MIG.
The applicant is not entitled to the treatment plan in dispute.
ANALYSIS
Applicability of the Minor Injury Guideline (“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 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.
5The applicant may be removed from the MIG if she can establish that her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented preexisting condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.
6The applicant claims that she sustained a concussion and left sciatica as a result of the accident, and that these impairments are not included in the Schedule’s definitions of “minor injury” or “clinically associated sequelae”.
7The respondent asserts that the applicant did not demonstrate, on a balance of probabilities, that she sustained a non-minor injury as a result of the accident.
The applicant has not demonstrated that her accident-related impairments justify removal from the MIG
8I find that the applicant has not presented compelling or objective medical evidence sufficient to demonstrate that her injuries fall outside the MIG.
9The applicant has reported suffering from a concussion and left sciatica, neither of which falls under the categories of “minor injury” or “clinically associated sequelae” outlined in the Schedule. She indicated that both her family physician, Dr. Robert Taylor, and physiotherapist, Mr. Youseff Obeid, diagnosed her with a concussion, cervical/thoracic strain, WAD II, and lumbar strain. These diagnoses are documented in a Disability Certificate (OFC-3) signed by Dr. Taylor on February 1, 2022, as well as another Disability Certificate signed by Mr. Obeid on December 1, 2021.
10The respondent argues that the applicant has not demonstrated that a concussion was sustained in the index accident.
11It is worth noting that the applicant did not distinguish between concussion and sciatica in her submissions, nor did she provide more details about sciatica. In contrast, the respondent also limited its arguments to concussion.
12I agree with the respondent's assertion that the evidence provided by the applicant does not objectively support the diagnosis of a concussion. This is primarily because the applicant has not supplied clinical notes and records from her family doctor, Dr. Taylor, indicating that she sustained a concussion. Furthermore, there has been no referral from Dr. Taylor to another medical professional for additional evaluation, such as a neurologist. The records from MapleCare Physiotherapy Clinic also do not indicate the presence of a concussion, but instead consistently mention soft tissue massages, along with other massages and exercises.
13Furthermore, Mr. Obeid’s assessment of a concussion is not authoritative because he is a physiotherapist. A concussion, which is considered a mild traumatic brain injury, requires a clinical diagnosis. Consequently, Mr. Obeid, as a physiotherapist, is not qualified to diagnose a concussion.
14Additionally, the first objective investigation into a concussion occurred more than a year after the accident, following an unrelated head trauma in 2023. A report dated July 12, 2023, from Merivale Medical Imaging states that the applicant has ongoing neck pain after a log of wood fell from a shelf onto her head. I find that this indicates that the concussion mentioned by the applicant as related to the accident, is likely linked to a different, unrelated event.
15The responsibility lies with the applicant to demonstrate to the Tribunal that her injuries extend beyond the MIG. However, merely self-reporting or noting subjective symptoms is not enough to challenge the presumption of MIG applicability. As a result, the applicant has not met her burden of proof, and I find that her accident-related injuries stay within the MIG limits.
The applicant is not entitled to the disputed treatment plan.
16In its submissions, the respondent confirmed that the maximum amount of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. Since I have determined that the applicant has not established that her accident-related impairments require treatment beyond the MIG limits, it is unnecessary for me to evaluate the reasonableness and necessity of the disputed treatment plan.
17The applicant also argues that the treatment plan is payable pursuant to s. 38(11) of the Schedule since the respondent did not comply with the notice requirements in s. 38(8) of the Schedule.
The applicant did not demonstrate that the respondent was non-compliant with Section 38(8) of the Schedule
18I find that the respondent has complied with section 38(8) of the Schedule.
19Under s. 38(8), an insurer has the obligation to, within 10 business days after receiving a treatment plan, provide the insured person with a notice identifying the medical and all other reasons why the insurer finds the treatment plan not reasonable and necessary.
20The applicant contends that the respondent's denial did not comply with s.38(8) of the Schedule because the Explanation of Benefits dated May 26, 2022, neither states that the respondent believes the MIG applies nor provides the medical reasons and all of the reasons why the respondent considers any goods or services, or the proposed costs of them, to be unreasonable and unnecessary.
21The respondent argues that it denied the plan and provided reasons within the 10-day requirement set out by the Schedule.
22The evidence presented to me indicates that the respondent sent the applicant a first letter dated May 26, 2022, indicating that a new claim representative had been assigned to the case, along with a second letter on the same day informing the applicant of the new claim number and that she should resubmit her claim using this number.
23The treatment plan dated May 11, 2022, for $2,693.75, was resubmitted on June 7, 2022, along with the new claim number. A response was received on June 22, 2022. In its denial letter dated June 22, 2022, the respondent explicitly states its position regarding the MIG, indicating that no evidence has been provided to support treatment beyond the MIG.
24Consequently, it seems that the letter dated May 26, 2022, serves a purely administrative purpose: to inform the applicant of the new number assigned to her file and the change of the claims representative. It is the letter dated June 22, 2022, that contains the respondent's refusal. The respondent's refusal was based on the following elements: the applicant's injuries are categorized within the MIG as they consist of Whiplash Associated Disorder (WAD2) with complaints of neck pain accompanied by musculoskeletal signs, shoulder joint sprains and strains, a contusion of the knee, lumbago with sciatica, and lumbar spine sprains and strains. The respondent also indicated that it would arrange an insurer’s examination.
25The respondent’s refusal letter referenced the applicant’s condition, explained that the injuries are treatable within the MIG, and provided sufficient detail for a layperson to understand why the injuries are classified as minor. Therefore, I find that the letter dated June 22, 2022, clearly complied with the requirements of section 38(8).
ORDER
26For the reasons outlined above, I find that:
The applicant remains in the MIG;
The applicant is not entitled to the treatment plan in dispute.
Released: May 9, 2025
Harouna Saley Sidibé
Adjudicator