Licence Appeal Tribunal File Number: 23-013983/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:
Aisar Mohsen
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Michael Adamek, Counsel
For the Respondent:
Emily Schatzker, Counsel
HEARD:
In Writing
OVERVIEW
1Aisar Mohsen, the applicant, was involved in an automobile accident on June 19, 2020, 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:
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?
Is the applicant entitled to $3,290.00 for a Psychological Assessment, proposed by Ghassan Arabieh in a treatment plan dated December 24, 2021?
Is the applicant entitled to the assessments/treatment plans proposed by Vitality Rehabilitation Group, as follows:
i. $2,503.45 for an Attendant Care Assessment, in a treatment plan dated April 13, 2022?
ii. $2,099.75 for a Chronic Pain Assessment, in a treatment plan dated April 13, 2022?
iii. $6,725.24 for Occupational Therapy Services, in a treatment plan dated April 13, 2022?
iv. $6,120.05 for Social Worker Services, in a treatment plan dated April 13, 2022?
RESULT
3The applicant has not met the onus to establish her injuries warrant removal from the MIG.
4As the applicant is being held to the MIG, it is not necessary for me to consider if the treatment plans for chiropractic services and a chronic pain assessment are reasonable and necessary.
5The applicant is not entitled to interest or an award.
Is the applicant subject to the Minor Injury Guideline’s $3,500 limit?
6The applicant has not met her onus to establish her injuries warrant removal from the 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 claims she should be removed from the MIG on the basis of chronic pain causing functional limitation, and because a pre-existing psychological injury has prevented her recovery if she is to be held to the MIG.
The applicant is not removed from the MIG for Chronic Pain
10The applicant submits she should be removed from the MIG due to accident-induced chronic pain in her right shoulder.
11To support her claim, the applicant relies on the Clinical Notes and Records (“CNRs”) from her family physician, Dr. Dolly Nahri, as well as an MRI and CT scan of her shoulder and spine. She further relies on the CNRs and OCF-18s for occupational therapy, social work and attendant care services from Vitality Rehabilitation Group.
12The respondent disagrees, and submits the applicant’s injuries are soft-tissue injuries which are minor in nature. To support their claim, the respondent relies upon the s.44 Physiatry Assessment of Dr. Mohammed Khan, dated May 17, 2021, as well as an addendum report, dated November 30, 2021.
13The respondent further relies on a Neurological Assessment report, by Dr. Rehan Dost on October 18, 2022, another Physiatry Assessment report by Dr. Farooq Ismail dated October 18, 2022, a Psychological Assessment report conducted by Dr. Christopher Cooper on May 17, 2021, and Private Investigative reports dated June 9, 2022.
14Upon review of the family doctor CNRs, I note that the applicant made multiple visits to her physician, but does not appear to have chronic or persistent complaints of accident-related pain.
15There were CT Scans, MRI and radiographic diagnostic images taken on August 21, 2020, September 4, 2020, November 12, 2020 and November 15, 2020 of the applicant’s elbow, head, neck and spine which show some mild degradation, such as calcific tendinosis, but I was not directed to evidence which clearly indicates chronic pain as a result of the accident.
16The applicant also submitted CNRs from Dr. Amal Amer, showing she has been receiving Vitamin B12 injections on a bi-weekly basis to control shoulder pain. It was unclear from the applicant’s submission whether this shoulder pain was degenerative long-term pain or accident induced. The CNR’s also do not indicate a functional impairment.
17I also reviewed the Occupational Therapy Progress report, authored by Casey Cadeau of Vitality Assessments Group dated December 10, 2020. The primary recommendation in that report was that the applicant would benefit from a heat pad and 12 OT sessions. There were also recommendations for chronic pain and psychological assessments, massage therapy and ongoing attendant care services.
18The respondent submits that the OT Progress report should be given less weight, pointing out the meeting was done without the benefit of an Arabic interpreter. The respondent argues that without the benefit of translation, the OT has not been given a clear picture of the applicant’s concerns.
19Although the onus is on the applicant to establish that she is suffering from chronic pain with a functional limitation, the applicant has not directed me to sufficiently supportive medical evidence to support her claim, nor has she submitted evidence of a functional impairment. As has been noted, the existence of chronic pain in and of itself does not warrant removal from the MIG. Rather, the legal test is ‘chronic pain with a functional limitation.’
20The CNRs suggest that the applicant has a number of medical concerns, but I have not been directed to evidence which indicates chronic pain with a functional limitation as a result of the accident.
21For these reasons, I find on a balance of probabilities that the applicant has not met her onus to be removed from the MIG on the basis of chronic pain.
Does the applicant’s existing psychological injury prevent recovery under the MIG?
22The applicant further her pre-existing psychological condition will prevent recovery if she were to be held to the MIG. To support this claim, she has included a report from Psychologist Alex Weinberger conducted in October 2018, when the applicant enrolled in the Ontario Disability Support Program (ODSP). Section 18(2) states that to be removed from the MIG on the basis of a pre-existing condition, the applicant must provide compelling evidence of a pre-existing medical condition that will prevent the insured person from achieving maximum recovery from the minor injury if they are subject to the limitation of the MIG.
23Both the respondent and applicant agree that the applicant has a pre-existing psychological condition. I have reviewed the ODSP records as well as the applicant’s psychological assessment conducted by Dr Weisberger.
24Although the applicants pre-existing psychological condition is undisputed, the applicant has failed to meet their onus that the condition will prevent their maximal recovery if kept within the MIG. The applicant relied on a s.44 examiner Psychologist Christopher Cooper’s opinion based on his examination conducted on May 17, 2021. The applicant argues that Dr Cooper states a pre-existing depressive disorder would be liable to interfere with and complicate the applicant’s recovery.
25Having reviewed the report, it was unclear to me if Dr. Cooper was speaking about psychological conditions in general, or specifically about the applicant. However, I did find a much more declarative statement on page 102 of his report, where Dr Cooper writes “Ms. Mohsen is not considered to currently require any further treatment or rehabilitation services to assist in achieving recovery.” I find this statement very definitive and clear. If you read the report as a whole versus selectively quoting isolated statements, I find that Dr. Cooper does not support the argument that the applicant needs to be removed from the MIG to facilitate maximal recovery.
26In summary – the onus is on the applicant to prove her pre-existing injuries prevent maximal recovery if she were to be held to the MIG. I have not been directed to evidence which indicates she requires additional therapy beyond what the MIG limits will allow to facilitate recovery due to a pre-existing condition.
27For these reasons, I find, on the balance of probabilities, that the applicant has not met her onus to establish she has suffered an injury which warrants removal from the MIG.
28As the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
30The 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 the insurer has not unreasonably withheld or delayed the payment of benefits, no award is payable.
ORDER
31The application is dismissed.
i. The applicant has not met their onus to warrant removal from the Minor Injury Guideline.
ii. As the applicant is in the MIG, it is not necessary to consider whether the treatment plans in dispute are reasonable and necessary.
iii. No interest is payable and no award is due.
Released: October 1, 2025
Jeff Chatterton
Adjudicator