Mohamed v. BelairDirect Insurance Company, 2025 CanLII 97793

Citation: Mohamed v. BelairDirect Insurance Company, 2025 ONLAT 24-000622/AABS

Licence Appeal Tribunal File Number: 24-000622/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:

Alia Mohamed

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Kameliya Stancheva, Paralegal

For the Respondent:

Gurpreet Singh, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Alia Mohamed, the applicant, was involved in an automobile accident on February 5, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The parties attended a case conference on June 6, 2024 and the matter was set down for a written hearing. A preliminary issue hearing was also set to be heard prior to this written hearing, to determine whether the applicant was barred from proceeding with her application and whether the applicant was barred from proceeding to this hearing with certain substantive issues.

3In a preliminary issue hearing decision dated November 8, 2024, the Tribunal found that the applicant was not statutorily barred from proceeding with her application. The Tribunal also found that the applicant was barred from proceeding to this written hearing with two of the substantive issues listed in the Case Conference Report and Order (“CCRO”), being income replacement benefits and a treatment plan for a psychosocial assessment. The remaining substantive issues listed in the CCRO are before me at this written hearing.

ISSUES

4The 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 $920.00 for transport for insured, aide, proposed by Toronto Medical Centre in a treatment plan dated March 17, 2023?

iii. Is the applicant entitled to $1,356.35 for chiropractic services, proposed by Toronto Medical Centre in a treatment plan dated April 19, 2023?

iv. Is the applicant entitled to $1,995.32 for a psychological assessment, proposed by Toronto Medical Centre in a treatment plan dated March 17, 2023?

v. Is the applicant entitled to $87.19 ($200.00 less $112.81 approved) for an OCF-3 dated February 3, 2023?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I find that:

i. The applicant has not established accident-related impairments that warrant removal from the MIG;

ii. The applicant is not entitled to the treatment plans in dispute, or interest; and

iii. The respondent is not liable to pay an award.

ANALYSIS

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

7An insured person 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.

The applicant has not established accident-related injuries that warrant removal from the MIG

8To establish her claim for non-minor accident related impairments, the applicant relies on a Disability Certificate (“OCF-3”) dated January 27, 2023 prepared by her chiropractor Dr. Shadi Jahandideh. The OCF-3 listed a number of injuries from the accident, including: Whiplash associated disorder [WAD2]; strain and sprain of the cervical, thoracic and lumbar spine, shoulder joint, rotator cuff, ribs and sternum; pain in the thoracic spine, chest pain and low back pain; headaches; sleep disorders; nervousness; irritability and anger; malaise and fatigue; PTSD and other reactions to severe stress.

9The applicant also refers to a clinical note and record (“CNR”) entry from her family physician Dr. Farnoosh Abedi-Ardakani dated January 23, 2023. In this entry, the doctor notes that the applicant had been reporting back pain “since pregnancy and delivering the baby. MVA last year in Feb 5, 2022.”. Dr. Abedi-Ardakani noted “Normal ROM. Chronic back pain. Back exercise. Ref to PT. Ref to pain clinic.” The applicant submits that this medical evidence establishes that she should be removed from the MIG, I infer, on the ground of chronic pain.

10I find that the applicant has not met her evidentiary onus to prove, on a balance of probabilities, that she has sustained non-minor impairments.

11With respect to the OCF-3 prepared by Dr. Jahandideh, the listed physical impairments include soft-tissue strains and sprains, including WAD2, all of which fall within the definition of a “minor injury”. I further agree with the respondent that with respect to the psychological conditions listed in the OCF-3, as a chiropractor, diagnoses of psychological impairments would fall outside his scope of practice. The applicant further does not direct me to any other evidence supporting an accident-related psychological impairment.

12The only other evidence submitted by the applicant is the CNR entry from her family physician Dr. Abedi-Ardakani. This entry, almost a year post-accident, references the applicant’s self-report of chronic back pain since her pregnancy, delivering her baby and the accident. I do not find that this isolated report is sufficient evidence to establish chronic pain warranting removal from the MIG. The applicant does not direct me to any accident-related pain complaints either immediately after the accident, or in the year leading up to the January 23, 2023 CNR entry.

13The respondent has submitted into evidence additional medical records from Dr. Abedi-Ardakani which reveal that in the eight appointments in between the accident and the January 23, 2023 CNR entry, the applicant did not mention the motor vehicle accident or any related injuries. Further, after the January 23, 2023 visit where Dr. Abedi-Ardakani noted the applicant’s reports of chronic back pain and referred her to a pain clinic, the applicant was requested to complete a back X-ray. The applicant did not complete the X-ray despite multiple reminders, and the referral to the pain clinic was closed. The applicant does not direct me to any other evidence that she reported pain symptoms or sought treatment for accident-related pain. Moreover, the applicant has not provided any submissions or led evidence as to any functional restrictions due to accident-related pain.

14The respondent relies on two s. 44 assessments conducted by Dr. Kopyto dated May 2, 2023 and May 29, 2023. Dr. Kopyto found that the applicant sustained uncomplicated musculoligamentous strain injuries to her neck and back as a result of the accident. Dr. Kopyto also noted that the applicant’s back pain likely developed as a result of her subsequent pregnancy.

15Upon review of the evidence and for the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain or a psychological condition as a result of the accident.

16As 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.

Interest

17Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.

Award

18The 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. I find that the applicant has not established that any payment of benefits was unreasonably withheld or delayed. As such, the respondent is not liable to pay an award.

ORDER

19I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG; and

ii. The applicant is not entitled to the disputed treatment plans, an award or interest.

20The application is dismissed.