Mohammad v. TD General Insurance Company, 2025 CanLII 62742
Licence Appeal Tribunal File Number: 23-011636/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:
Amina Mohammad
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Rania Hafez, Paralegal
For the Respondent: Jagdeep Khela, Counsel
HEARD: By way of written submissions
OVERVIEW
1Amina Mohammad, the applicant, was involved in an automobile accident on October 21, 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, TD 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:
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?
ii. Is the applicant entitled to $2,322.73 ($3,622.73 less $1,300.00 approved) for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated April 8, 2022?
iii. Is the applicant entitled to $1,995.50 for physiotherapy services, proposed by OMNI Health and Rehab Clinic, in a treatment plan dated July 13, 2022?
iv. Is the applicant entitled $1,293.80 for a chiropractic assessment, proposed by 2430307 Ontario Ltd. In a treatment plan dated December 22, 2022?
v. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from July 21, 2022, and ongoing?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG.
4The applicant is not entitled to the treatment plans in dispute.
5The applicant is not entitled to an IRB in the amount of $400.00 per week from July 21, 2022, and ongoing.
6The applicant is not entitled to interest.
7The respondent is not required to pay an award.
PROCEDURAL ISSUES
Failure to meet the document exchange deadline
8The respondent’s request to dismiss the application due to the applicant’s failure to produce requested documents within the exchange deadline is denied and the applicant’s written submissions will be considered by the Tribunal.
9The respondent submits that the applicant failed to comply with the Case Conference Report and Order (“CCRO”), dated March 25, 2024. It notes that the CCRO ordered the applicant to produce nine documents to the respondent within 45 days, with an ultimate deadline of 90 days. The respondent submits that to date the applicant has not complied with the order and the respondent has not received any of the documents that were ordered to be produced. The respondent submits that as the applicant failed to comply with the CCRO, the applicant’s application should be dismissed.
10I find that the applicant has not provided a reply to the respondent’s submissions with respect to this issue. I agree with the respondent that the applicant did not meet the document exchange deadline as listed in the CCRO because the nine documents are not in evidence. However, the respondent has not demonstrated how it has been prejudiced by the lack of production of these documents. As the applicant is not seeking to rely upon the documents that were not provided, I do not find that the respondent has suffered significant prejudice which would justify dismissing the application especially since it is the applicant’s burden to prove her case.
11Accordingly, I deny the respondent’s request to dismiss the application and accept the parties’ submissions as filed.
Late submissions
12The respondent’s request to dismiss the application due to the applicant failing to comply with the written submission deadline is denied and the applicant’s written submissions will be considered by the Tribunal.
13The CCRO dated March 25, 2024, ordered the applicant to provide her submissions by no later than 30 calendar days prior to the written hearing scheduled for November 15, 2024. The applicant’s written submissions were due on October 16, 2024. The applicant provided her submissions to the Tribunal and the respondent on November 5, 2024.
14I find that the applicant has not provided a reply to the respondent’s submissions with respect to this issue. However, I am exercising my discretion and including the applicant’s submissions in the hearing record. I find that dismissing this application without determining its merits is not appropriate as there is no evidence that any of the circumstances set out in Rule 3.4 and 3.5 of the Licence Appeal Tribunal Rules, 2023, would apply.
15I find that the respondent did not make any submissions that the applicant abandoned the proceeding. Although the applicant filed her submissions late, I find this demonstrates that she has not abandoned the proceeding. Further, the respondent has not provided any evidence of the prejudice that it would suffer if I were to accept the applicant’s submissions as filed. Despite the applicant’s late filing and service, there is no evidence that the respondent was unable to respond to the applicant’s submissions fully.
16Accordingly, I deny the respondent’s request to dismiss the application and accept the parties’ submissions as filed.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
17I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.
18Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
19An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.
20In this matter, the applicant submits that she should be removed from the MIG because she suffers from chronic pain and psychological impairments as a result of the accident.
a. The applicant is not removed from the MIG based on chronic pain
21I find that the applicant has not demonstrated that she suffers from chronic pain as a result of the accident that would warrant removal from the MIG.
22Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found that the criteria for a chronic pain condition outlined in the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool in the absence of a diagnosis of chronic pain. To demonstrate a chronic pain condition, the person must demonstrate that they likely meet three of the following six criteria:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse or family.
iii. Secondary physical deconditioning due to disuse and or fear avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.
vi. Development of psychosocial sequelae after the initial accident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours.
23The applicant claims that she has chronic pain from the accident, and she submits that she meets the criteria for a chronic pain condition, according to the AMA Guides. She submits that she meets Criterion iv because she stopped working from the date of the accident and Criterion v because she has low back pain, shoulder pain, panic and stress since the accident. The applicant relies upon the clinical note and record (“CNR”) from Guelph General Hospital, dated November 2, 2021, and two CNRs of her family physician Dr. Jamal Aboujamra, dated November 5, 2021, and December 22, 2021.
24The respondent submits that the applicant has not adduced any compelling evidence to support that her injuries are not minor. It relies upon the Insurer’s Examination (“IE”) Multidisciplinary Report of Dr. Zubina Ladak, psychologist and Dr. Jacqueline Auguste, orthopaedic surgeon, dated November 22, 2022, which concluded that the applicant’s injuries were minor.
25I find that the applicant has provided insufficient evidence to support that she suffers from ongoing pain or chronic pain or that she has a corresponding functional impairment as a result of the accident. My reasoning is based on the following findings.
26First, upon review of the CNRs relied upon by the applicant, I find that these records do not demonstrate that the applicant’s physical injuries rise to the level of chronic pain, or that she is experiencing functional impairments as a result of the accident. I find that the CNR from Guelph General Hospital dated November 2, 2021, notes that the applicant has complaints of back pain post-accident which can disturb her sleep. The CNR of her family physician, dated November 5, 2021, notes that a call took place with the applicant, and she reported back pain and headaches. The CNR dated December 22, 2021, notes complaints of back pain, shoulder pain, panic, and stress.
27I find that there is no mention of any functional issues or complaints by the applicant within these CNRs to support a diagnosis of chronic pain. Similarly, there are no records in the months after the accident, that would corroborate ongoing reports of pain or functional impairment. I find that the applicant has not directed the Tribunal to any other medical documentation which supports that she has ongoing functional impairments or a diagnosis of chronic pain.
28Second, I give weight to the IE reports of Dr. Ladak and Dr. Auguste, both of whom concluded that the applicant’s injuries were minor. Both assessors completed in-person assessments of the applicant. Dr. Ladak concluded that her psychological symptoms are subclinical, and she does not meet the criteria for a formal DSM-V diagnosis in relation to the accident. Dr. Auguste concluded that her injuries are minor, and she sustained a WAD II cervical strain/sprain and lumbar strain/strain as a result of the accident. I find that neither assessor found that the applicant suffered any functional issues or complaints that would support a diagnosis of chronic pain.
29Finally, I find that the applicant does not meet three out of six of the criteria for a chronic pain condition, as outlined in the AMA Guides.
30The applicant has not provided any prescription summaries, nor any indication that she is dependent on prescription drugs or other substances. The applicant does not regularly visit with healthcare providers. The last CNR provided from her family doctor is dated December 5, 2021. Accordingly, I find that she is not dependent on them.
31None of the medical information before me suggests that the applicant has deconditioned due to disuse. The applicant has not provided evidence that she has withdrawn from social milieu or failed to restore her pre-accident function.
32I find that while the applicant claims that she has not returned to her pre-accident employment, there is no medical evidence to support any functional limitations to return to work. At most, the applicant reported in the psychological IE assessment performed by Dr. Ladak, psychologist, on November 9, 2022, that she was feeling sad and frustrated when reflecting on her limitations but was happy when engaged with her family.
33I find that these complaints are minimal and that the CNRs provided indicate that the applicant never engaged in treatment or medication for those symptoms. Similarly, the complaints of sleep initiation and maintenance difficulties, reduced energy and cognitive difficulties are not documented in any other medical documentation or assessments.
34For the reasons set out above, I find on a balance of probabilities that the applicant does not suffer from chronic pain as a result of the accident and therefore she is not removed from the MIG on this basis.
b. Psychological Impairment
35I find that the applicant has not demonstrated that she suffers from a psychological condition as a result of the accident that would warrant removal from the MIG.
36The applicant claims that she suffered a psychological impairment as a result of the accident. She relies upon the Psychological IE assessment performed by Dr. Ladak, psychologist, on November 9, 2022, where she reports feeling sad and frustrated at times when she is alone, and she worries about her recovery and ability to overcome her injuries. She claims that she has trouble with sleep initiation and maintenance difficulties secondary to her pain.
37I find no evidence that the applicant sustained an accident-related psychological condition that would remove her from the MIG. Other than her self-reported complaints noted in the Psychological IE report of Dr. Ladak, the applicant has not directed me to any other medical evidence to support that she suffers a psychological condition. I find the report of Dr. Ladak, persuasive because there is no objective evidence of a significant accident-related psychological impairment based on the self-reports of the applicant and Dr. Ladak’s psychological assessment.
38For the reasons set out above, I find on a balance of probabilities that the applicant does not suffer from a psychological condition as a result of the accident and therefore she is not removed from the MIG on this basis.
The applicant is not entitled to the treatment plans in dispute
39As I have found that the applicant remains subject to the MIG, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary.
The applicant is not entitled to an IRB
40I find that the applicant has not demonstrated that she is entitled to an IRB at the rate of $400.00 per week from July 21, 2022, and ongoing.
41Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
42The applicant submits that she is entitled to an IRB. She submits that she worked at Cargill Ltd. in a factory packaging meat cuts. Her essential tasks included standing for prolonged periods of time, heavy lifting and carrying, upper body coordination and maintaining concentration and focus. She submits that on the day of the accident she went to Guelph General Hospital with pain in her neck and lower back and she was feeling unable to do manual work. She further submits that she asked her family doctor to prescribe medications and to approve a recovery period for her injuries. The applicant made no further submissions about her entitlement to an IRB.
43The respondent submits that the applicant has not proven that she suffers a substantial inability to perform the essential tasks of her pre-accident employment. The respondent submits that the applicant has not provided any evidence that supports that she was unable to engage in her pre-accident employment duties or that she was placed on modified duties following the accident. The applicant relies upon the IE reports of Dr. Ladak, psychologist, Dr. Auguste, orthopaedic surgeon and Mr. Bullard, occupational therapist, dated November 22, 2022, which concluded that the applicant was not entitled to an IRB.
44I find that the applicant has not met her burden of demonstrating how the impairments caused by the accident resulted in a substantial inability to perform the essential tasks of her pre-accident employment. Other than referring to the CNR from Guelph General Hospital and noting that she saw her family doctor after the accident, no further evidence or submissions were made by the applicant. I find that the while the applicant has listed the essential tasks of her pre-accident employment, the applicant has not provided any submissions as to what difficulties she experienced in completing the tasks of her employment. In addition, I find that there is a lack of medical evidence to substantiate her claim that her injuries sustained in the accident prevented her from returning to work. In the absence of medical evidence, I find that the applicant has not met her burden of proving entitlement to an IRB.
45I am persuaded by the IE reports dated November 22, 2022, which assessed the applicant in-person and provided an evaluation of the applicant’s abilities to engage in the essential tasks of her pre-accident employment. I find that these reports are the only medical evidence before the Tribunal where an assessment was made of the applicant’s physical and psychological abilities in reference to her ability to engage in her pre-accident employment.
46In addition, I find that the applicant has omitted crucial facts about her employment in her submissions. The respondent has pointed out that the Employer’s Confirmation Form, dated February 11, 2022, noted that the applicant’s employment terminated on September 30, 2021, and that her last day of work was on September 7, 2021. It also notes that the applicant was on unpaid personal leave from May 28 to August 21, 2021. Therefore, the applicant was not actually employed at Cargill Ltd. on the date of the accident. I find that the applicant has not provided any particulars as to whether she was employed somewhere else at the time of the accident or engaged in any other employment following the accident.
47I further find that despite the respondent’s request for production of the applicant’s employment files and income tax records at the CCRO, these records were not provided to the respondent. I therefore find that the applicant has not provided any evidence other than the Employer’s Confirmation Form to support her employment situation both prior to and after the accident.
48For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to an IRB from July 21, 2022, to date and ongoing.
Interest
49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
50The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that an award is not appropriate because there is no evidence that the respondent withheld or delayed the payment of benefits.
ORDER
51For the reasons outlined above, I find:
i. The applicant’s accident-related injuries are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to an IRB in the amount of $400.00 per week from July 21, 2022, and ongoing;
iv. The applicant is not entitled to interest;
v. The respondent is not required to pay an award;
vi. The application is dismissed.
Released: July 2, 2025
__________________________
Melanie Malach
Adjudicator