Licence Appeal Tribunal File Number: 23-012604/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:
Abdinoor Hassan
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Alex Nikolaev, Counsel
For the Respondent:
Julianne Brimfield, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Abdinoor Hassan, the applicant, was involved in an automobile accident on July 20, 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:
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 a non-earner benefit (“NEB”) of $185.00 per week from August 24, 2022, to the date of the case conference?
iii. Is the applicant entitled to $3,494.50 for physiotherapy services, proposed by Physio Art Rehabilitation in a treatment plan/OCF-18 (“plan”) dated November 15, 2022?
iv. Is the applicant entitled to $2,172.64 for physiotherapy services, proposed by Physio Art Rehabilitation in a treatment plan dated September 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
3For the reasons below, I find that:
The applicant’s injuries are not predominantly minor, and therefore, he is entitled to treatment beyond the monetary limit of the MIG.
The applicant is entitled to the disputed treatment plans, with interest pursuant to s.51 of the Schedule.
The applicant is not entitled to an NEB or an award.
ANALYSIS
Are the applicant’s injuries predominantly minor?
4I find that the applicant's injuries do not fall within the MIG.
5Section 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.”
6The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented preexisting condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he 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.
7The applicant argues that his injuries exceed the definition of a minor injury under section 3 of the Schedule. He supports this by referencing an MRI dated October 4, 2023, which shows a disc herniation at L5-S1 with nerve root compression. He reports experiencing chronic pain from the accident that requires ongoing treatment at a pain clinic. Additionally, he cites a psychiatric diagnosis of PTSD from Dr. Kartar Lal.
8The respondent argues that the applicant’s injuries are soft tissue in nature and still fall within the definition of a “minor injury” under the MIG. It references the OCF-23 and OCF-18 forms, which describe whiplash and sprains. The respondent maintains that the presence of MRI findings and psychological symptoms following the accident does not exclude the injuries from the scope of the MIG because the applicant has not met his burden of proof to establish that he has non-minor injuries or that his pre-existing injuries would prevent recovery within the MIG.
The applicant has sustained psychological impairments that warrant removal from the MIG
9I find that the applicant has sustained psychological impairments that warrant removal from the MIG, as he demonstrated that he was diagnosed with accident-related post-traumatic stress disorder.
10Following the accident, the applicant’s family doctor, Dr. Muhammad Ali Khan, referred him to a psychiatrist, Dr. Kartar Lal. The clinical notes and records (“CNRs”) from Dr. Lal diagnosed the applicant with posttraumatic stress disorder.
11On March 2, 2023, Dr. Lal reported that the applicant was referred for symptoms including anxiety, memory issues, back pain, stress, poor sleep, recurring dreams of accidents, flashbacks, confusion, limited sleep (2–3 hours), jumpiness, noise sensitivity, and headaches. These symptoms are associated with the motor vehicle accident that occurred in July 2022. Based on this, Dr. Lal diagnosed posttraumatic stress disorder and prescribed Zoloft 50 mg daily.
12On March 30, 2023, Dr. Lal saw the applicant for a follow-up. He reports continued significant pain affecting his mood. The CNRs indicate that ongoing medication review, psychoeducation, and support are planned, with another follow-up in 4 weeks.
13On May 9, 2023, Dr. Lal conducted a follow-up with the applicant, who reported ongoing pain, a persistently low mood, and continued distressing memories of the accident. Despite these concerns, Dr. Lal closed the applicant’s file and referred him to his family doctor for further follow-up. No explanation was provided as to why the file was closed.
14I find that the PTSD diagnosis is supported by consistent reports from Dr. Lal in his CNRs, as well as a documented change in psychiatric medication following the July 2022 accident. The respondent contends that the applicant’s PTSD is not causally linked to the accident. However, I do not agree. Dr. Lal explicitly connected the applicant’s psychological symptoms, including flashbacks, accident-related dreams, and heightened anxiety, to the accident. While the change in medication may raise the possibility of a pre-existing condition, the evidence presented by the applicant strongly suggests that these impairments either began or significantly worsened after the accident. In my view, this supports a causal link between PTSD and the accident.
15Consequently, I find, on a balance of probabilities, that the applicant has demonstrated that his injuries are not subject to the MIG.
16Although the applicant argues other grounds for removal from the MIG, given my finding that he has a psychological impairment that warrants removal from the MIG, I do not need to consider these other arguments. The applicant is removed from the MIG.
Is the applicant entitled to the disputed treatment plans for physiotherapy services?
17I find that the applicant is entitled to both treatment plans for physiotherapy services.
18To receive payment for an OCF-18 under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, explain how these goals would be met to a reasonable degree, and demonstrate that the overall costs of achieving them are reasonable.
19The plan dated November 15, 2022, signed by Mohannad Bakri, for $3,494.50, includes documentation support, assessment, 24 rehabilitation sessions, and 10 therapy sessions. Goals encompass pain relief, improved movement, increased strength, and resumption of daily activities.
20The plan dated November 24, 2023, for physiotherapy services, which totals $2,172.64, contains similar general information. It includes one documentation support activity, one assessment (examination), and 30 therapy sessions covering multiple body sites. Goals include reducing pain, increasing range of motion, improving strength, and returning to normal activities.
21For both plans, improvements are being observed in headaches, standing, walking, and repetitive movements, as well as in lower back pain, range of motion, and muscle strength.
22I find that the treatment plans are reasonable and necessary because they are supported by contemporaneous medical evidence beyond the recommending provider. In particular, the applicant’s complaints, such as ongoing pain and functional limitations, are consistently documented in the clinical records (see CNRs dated August 16, 2022, from the Pain Clinic and CNRs dated March 2 and May 9, 2023, from Dr. Lal), and there is evidence that another healthcare provider, around the time the treatment plans were proposed, also recommended physiotherapy (see CNRs dated November 16, 2023 from Dr. Daipayan). This corroboration supports the conclusion that the treatment plans were appropriate responses to the applicant’s condition at the relevant time.
23The MRI dated October 4, 2023, from Hamilton Health Sciences shows mild retrolisthesis of L5 on S1, along with a small T11 vertebral hemangioma, a minor disc bulge at L4-L5 that indents the thecal sac and nerve roots, mild facet degeneration, and ligamentum flavum hypertrophy. The doctor concludes that the applicant has an L5-S1 disc herniation compressing the left nerve root.
24On November 11, 2023, Dr. Guha Daipayan, a spinal neurosurgeon, referred the applicant to a Pain Clinic for injections, further supporting the ongoing need for multidisciplinary pain management. In the CNRs from Pain Care Clinics dated August 16, 2022, a provider independent of the recommending physiotherapist, Mr. Mohannad Bakri of Physio Art Rehabilitation, assessed the applicant and diagnosed him with limited neck range of motion, cervical joint pain and tenderness, as well as tenderness in the trapezius and rhomboid muscles, along with back and knee pain.
25The Pain Care Clinic’s provider specifically advised the applicant to avoid activities that exacerbate his pain (neck, lower back pain and sacroiliac joint dysfunction) and recommended physiotherapy and massage therapy to improve core strength and manage symptoms. This contemporaneous recommendation from a separate healthcare provider supports the reasonableness and necessity of the treatment plans under review.
26Additionally, several physiotherapy progress reports from Physio Art Rehabilitation, dated from July 21, 2022, to January 8, 2024, were submitted as evidence. They all demonstrate a continued need for physiotherapy, as well as the progress achieved through previous treatments, such as improvements in lower back pain and muscle spasms.
27I find that physiotherapy was recommended for accident-related injuries by both the applicant’s treating physiotherapist, Dr. Mohannad Bakri of Physio Art Rehabilitation, and by a provider at the Pain Care Clinics. These recommendations were made in response to the applicant’s ongoing symptoms, including musculoskeletal pain and functional limitations, such as both sides' SIJ. Additionally, the clinical evidence supports the presence of continuing impairments, and the treatment goals, such as improving mobility, reducing pain, and enhancing core strength, are consistent with the objective of functional recovery.
28Consequently, I find, on a balance of probabilities, that the applicant is entitled to the disputed treatment plans.
Is the applicant entitled to an NEB?
29I find that the applicant is not entitled to an NEB.
30Section 12(1) of the Schedule provides that an insurer shall pay an 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.” The 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.
31Section 3(7)(a) of the Schedule states that a person suffers a complete inability to carry on a normal life as a result of an accident if, due to the accident, the person sustains an impairment that continuously prevents them from engaging in almost all of the activities they normally engaged in before the accident.
32The applicant submits that he meets the test under s. 3(7)(a) of the Schedule, as the accident rendered him unable to engage in substantially all pre-accident activities. He refers to the Disability Certificate, consistent clinical evidence of reduced function, psychiatric symptoms, and his physiotherapist’s opinion.
33The respondent denies entitlement, arguing that the applicant has longstanding functional limitations predating the accident, and the OCF-3 lacks a sufficient analysis of the comparison between pre- and post-accident activity.
34To determine whether the applicant has a complete inability to carry on a normal life, I need to compare his pre- and post-accident activities.
35The disability certificate (OCF-3) dated July 21, 2022, is signed by the applicant’s treating physiotherapist, Mr. Bakri, and states that the applicant suffers a complete inability to carry on a normal life. The OCF-3 indicates “Non Applicable” on the question asking whether the applicant is substantially unable to perform the essential tasks of his employment at the time of the accident, and the same response is given to the question about whether the applicant can return to work on modified hours and/or duties. As such, while the OCF-3 indicates the applicant has a complete inability to carry on a normal life, it does not provide any information about the applicant’s pre-accident activities.
36The applicant did not make any submissions regarding his pre-accident activities as required to meet the test in Heath. According to the Disability Certificate (OCF-1) dated July 21, 2022, he was unemployed at the time of the accident, a fact also confirmed in the OCF-3. The only available information about his pre-accident status comes from a consultation with Dr. Daipayan Guha, a spinal neurosurgeon at Hamilton Health Sciences, where the applicant reported that he lived independently, was not employed, and was receiving Ontario Disability Support Program (ODSP) benefits. He also indicated that he had not worked prior to the accident.
37Regarding the applicant’s post-accident activities, he told Dr. Lal that he sometimes reflects on how his life has changed completely. He used to work, but now he is unable to do anything after the accident. He tries to help his wife at home and support his kids. His sleep is poor, his appetite has decreased, his concentration is poor, and he forgets things easily.
38I find that the applicant has not met his onus to establish a complete inability to live a normal life as a result of the accident. While he did provide some evidence, particularly his reports to Dr. Lal, these accounts are inconsistent with his reports to other treating practitioners, especially regarding his pre-accident work status. Moreover, the applicant did not provide sufficient detail or corroborating evidence about his pre-accident activities to allow for a meaningful comparison with his post-accident functioning to meet the test in Heath. As a result, I do not find the evidence compelling enough to support his claim under the complete inability test.
39Consequently, I find, on a balance of probabilities, that the applicant has not met the burden of proving he is entitled to an NEB for the period in dispute.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is entitled to the disputed treatment plans, interest is due on all overdue payments.
Award
41The applicant seeks an award under section 10 of Regulation 664. Under section 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.
42The applicant did not submit any evidence regarding the respondent’s conduct that would warrant an award. Consequently, I find that the respondent is not liable to pay an award.
ORDER
43For the above reasons, it is ordered that:
i. The applicant’s injuries are not predominantly minor, and therefore, he is entitled to treatment beyond the monetary limit of the MIG.
ii. The applicant is entitled to the disputed treatment plans, with interest pursuant to s.51 of the Schedule.
iii. The applicant is not entitled to an NEB or an award.
Released: July 29, 2025
Harouna Saley Sidibé
Adjudicator