Licence Appeal Tribunal File Number: 23-006147/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:
Walid Al Ali
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Filipe Santos, Counsel
For the Respondent:
Amanda Lennox, Counsel
HEARD:
By way of written submission
OVERVIEW
1Walid Al Ali, the applicant, was involved in an automobile accident on May 29, 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, 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 (MIG) limit.
ii. Is the applicant entitled to an income replacement benefit (IRB) in the amount of $400.00 per week from June 5, 2021, to date and ongoing?
iii. Is the applicant entitled to $2,862.48 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated December 8, 2021?
iv. Is the applicant entitled to $2,423.91 for physiotherapy services, proposed by 101 Physio in a plan dated March 23, 2022?
v. Is the applicant entitled to $2,540.52 for physiotherapy services, proposed by 101 Physio in a plan dated July 11, 2022?
vi. Is the applicant entitled to $2,210.00 for psychological services, proposed by 101 Assessments in a plan dated March 14, 2022?
vii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan dated December 8, 2021?
viii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by 101 Assessments in a plan dated July 11, 2022?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG.
4The applicant it not entitled to an IRB from June 5, 2021 to date and ongoing.
5The treatment plans are not payable.
6No award or interest is owing.
ANALYSIS
Minor Injury Guideline (MIG)
7Section 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.”
8An 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.
9The applicant has made no submissions regarding removal from the MIG. I have not been presented with any arguments supporting removal based on a pre-existing injury, chronic pain with a functional impairment, or a psychological condition.
10Therefore, I find that the applicant has not met his onus and is subject to the MIG.
Income Replacement Benefit
Pre-104 Week IRB
11To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
12The applicant is not entitled to an IRB from June 5, 2021 to date and ongoing.
13The applicant argues that the respondent’s Notice of Examination (NOE) dated May 26, 2022 was not compliant with s. 37(4) and s. 44(5) of the Schedule because it did not set out the medical and any other reasons for the Insurer’s Examination (IE). The applicant references Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) in their reasoning that the NOE was insufficient.
14Section 37(4) states:
If the insurer determines that an insured person is not entitled or is no longer entitled to receive a specified benefit on any one or more grounds set out in subsection (2), the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination.
15Section 44(5) states:
If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,
(a) the medical and any other reasons for the examination;
(b) whether the attendance of the insured person is required at the examination;
(c) the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and
(d) if the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.
16I note that Taksali is not binding on me, and in any event, I find that the NOE of May 26, 2022 is compliant as it clearly outlines medical and other reasons.
17In the NOE, the respondent outlines that the Disability Certificate submitted indicates a duration of 9-12 weeks of disability. At the time of the NOE, 25 weeks had passed. The respondent’s request was to clarify this discrepancy. Additionally, the NOE reiterated the respondent’s request (earlier requests were sent on March 28, 2022, and April 29, 2022) that the respondent lacks objective medical documentation and requests the clinical notes and records (CNRs) of the applicant’s family physician and any other specialists and health practitioners to help the respondent adequately assess the applicant’s condition. The request for additional medical information in this NOE was updated to make it compliant with s. 44(9)(2)ii, which states “the insured person and the insurer shall, not later than five business days before the day scheduled for the examination, provide to the person or persons conducting the examination such information and documents as are relevant or necessary for the review of the insured person’s medical condition.”
18Therefore, given that the notice is compliant, and the applicant has not made arguments on entitlement to IRB I find on a balance of probabilities that the applicant is not entitled to an IRB.
19The applicant does not assert that the treatment plans are reasonable and necessary, but instead argues that they are payable pursuant to s. 38(11) of the Schedule, given that the respondent’s denials were non-compliant with s. 38(8).
20Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
21It is the applicant’s position that their psychological injuries fall outside the scope of the MIG. The applicant’s argument regarding all the various treatment plans is the same: each plan lists “reaction to severe stress” and “adjustment disorder” as reasons for denial.
22I find that the explanation of benefits (EOB) provided by the respondent were compliant with s. 38(8). In all instances the EOBs outlined the treatment plans in question. They also clearly provided the medical and all other reasons for the denial indicating that the applicant was considered to fall within the MIG , and that the list of injuries in the treatment plans are defined as minor. Additionally, all the EOBs requested additional medical information from the applicant to be able to appropriately make determinations of the treatment plans. I find the notices are compliant with s. 38(8).
23I disagree with the applicant’s claim that listing “reaction to severe stress, and adjustment disorder” is sufficient to deem that applicant is out of the MIG with no medical evidence to substantiate that claim. As noted above, the applicant did not make a submission to remove themselves from MIG. Further, even if the applicant were removed from the MIG, this would not render the notices non-compliant, as the respondent provided medical reasons for the denial that comply with s. 38(8).
24I find that the treatment plans are not payable pursuant to s. 38.
Interest
25Interest 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
26The 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 no benefit payments were unreasonably withheld or delayed, no award is due.
ORDER
27I find that:
i. The applicant remains in MIG.
ii. The applicant is not entitled to IRB from June 5, 2021, to date and ongoing.
iii. The treatment plans are not payable.
iv. No award or interest is owing.
v. The application is dismissed.
Released: August 15, 2025
Robert Rock
Adjudicator