Citation: Francis v. Intact Insurance Company, 2026 ONLAT 24-009485/AABS

Licence Appeal Tribunal File Number: 24-009485/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:

Wilfred Julian Cristopher Francis

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lisa Holland

APPEARANCES:

For the Applicant:

Jeremy Magence, Counsel

For the Respondent:

Jaskiran Gill, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Wilfred Julian Christopher Francis, the applicant, was involved in an automobile accident on May 12, 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, Intact 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 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,200.00 for psychological services, proposed by Pro Life Wellness Centre Inc. in a treatment plan/OCF-18 (“plan”) submitted February 2, 2023?

iii. Is the applicant entitled to $2,386.86 for physiotherapy services, proposed by Pro Life Wellness Centre in a plan submitted May 16, 2024?

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

4Since I have determined that the applicant is subject to the MIG, and the MIG limits have been exhausted, it is not necessary to consider whether the disputed treatment plans are reasonable and necessary.

5The respondent’s denials of the disputed plans were proper notices in accordance with s.38(8) of the Schedule, and therefore, those treatment plans are not payable pursuant to s.38(11) of the Schedule.

6The applicant is not entitled to interest.

PROCEDURAL ISSUES

The clinical notes and records (“CNRs”) of Pro Life Wellness Centre are admitted into evidence

7In its written hearing submissions, the respondent requests that the CNRs of Pro Life Wellness Centre dated November 14, 2024, not be considered as it was provided to the respondent after the final production deadline of February 16, 2025.

8The Case Conference Report and Order (“CCRO”) dated November 21, 2024 ordered that, by no later than 90 calendar days after the case conference (i.e., February 16, 2025), the parties needed to disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing.

9The CNRs of Pro Life Wellness Centre is dated November 14, 2024, and the respondent indicates the records were produced with the applicant written submissions on June 25, 2025.

10In reply, the applicant submits that the CNRs of Pro Life Wellness Centre were served by email to the respondent on November 14, 2024, and the respondent paid for the cost of the records. The applicant produced copies of the email correspondence dated November 14, 2024, and a copy of the receipt of payment dated November 19, 2024 from the respondent for the CNRs of Pro Life Wellness Centre.

11I am allowing the document to be admitted because the applicant has produced evidence that the records were served on the respondent on November 14, 2024. Therefore, the respondent has not been prejudiced since it had ample opportunity to obtain further s. 44 assessments or addendum reports after receiving the records.

ANALYSIS

The applicant has not demonstrated on a balance of probabilities that he suffers from accident-related injuries that warrant removal from the MIG

12I find that the applicant has not demonstrated on a balance of probabilities that he suffers from accident-related chronic pain with functional impairment to warrant removal from the MIG.

13Section 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 in accordance with the MIG. 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.”

14An 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 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.

15The applicant submits that he should be removed from the MIG based on the following accident-related physical and psychological injuries:

a. his diagnosis of chronic pain, and/or;

b. his psychological injuries.

c. Chronic Pain

16I find that the applicant has not demonstrated on a balance of probabilities that he suffers from accident-related chronic pain with functional impairment to warrant removal from the MIG.

17The applicant submits that although he has not received a diagnosis of chronic pain from his doctors, he should be removed from the MIG based on his meeting the definition of chronic pain under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”).

18In support of his position that he has chronic pain such that his injuries fall outside of the MIG, the applicant relies on the CNRs of Dr. Mohammad Barbouti, family physician and the records of Pro Life Wellness Centre.

19While they are not binding on the Tribunal to follow the Guides, the criteria set out in the Guides can be a useful tool in assessing an applicant’s claim for chronic pain. The Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

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 physician 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; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.

20The applicant submits that he meets 3 of the 6 criteria under the Guides namely withdrawal from social milieu, failure to restore pre-injury function, and development of psychosocial sequelae. The applicant argues that he has not returned to his activities of daily living; his range of motion is reduced; and he was unable to return to the gym or work after the accident.

21The respondent relies on the Insurer’s Examination (“IE”) report dated July 23, 2024, by Dr. Stephanie Klein, general practitioner. The respondent submits that Dr. Klein concluded that the applicant sustained sprain and strain type injuries to his right shoulder and back as a result of the accident. In her report, Dr. Klein noted that the applicant’s range of motion was full, and the findings of the radiological examinations of the applicant’s right shoulder and lumbar spine are negative. The respondent further submits that the applicant reported that he resumed his functional abilities for all his personal care, caregiving tasks, driving, going to the gym and working.

22The respondent further submits that the applicant has not demonstrated that he has functional impairments pursuant to the Guides to warrant removal from the MIG on the basis of chronic pain. The respondent argues that the applicant has not produced evidence in support that he meets 3 of the 6 criteria under the Guides.

23The evidence suggests that the applicant’s functional abilities are inconsistent with chronic pain with functional impairment. I find that the medical evidence does not support that the applicant has withdrawn from social milieu, failed to restore pre-injury function, or developed psychosocial sequelae. For example, there is evidence that the applicant visited his doctor infrequently, he returned to a physically demanding job within 3 months after the accident, and on July 23, 2023, Dr. Barbouti mentions the applicant has no psychosocial stressors at work or at home. Therefore, I find that the applicant does not meet the criteria under the Guides to warrant removal from the MIG on the basis of chronic pain.

24Overall, I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG in the absence of any medical documentation from the applicant’s treating physicians with consistent findings in support of an accident-related chronic pain with functional impairment.

a) Psychological impairment

25I find that the applicant has not demonstrated on a balance of probabilities that he has an accident-related psychological impairment to warrant removal from the MIG.

26The applicant submits that he should be removed from the MIG on account of his accident-related psychological injuries. The applicant points to a pre-screen report dated January 25, 2023 conducted by Dr. Divya Jyoti, psychologist under the supervision of Dr. Harinder Mrahar. In the pre-screen report, Dr. Jyoti bases her diagnoses of adjustment disorder and specific phobia on the applicant’s own self reporting and recommends psychological services. The applicant does not refer to any notes from his treating physician regarding a psychological impairment as a result of the accident.

27The respondent submits that the applicant has not provided medical documentation in support of a claim for a psychological impairment to warrant removal from the MIG, and he has not reported any psychological symptoms to his doctor. The respondent relies on the CNRs of the applicant’s family physician and the IE report dated August 29, 2023, by Mohammad Reza Nikkhou, psychologist. The respondent submits that Dr. Nikkou found inconsistencies between the applicant’s reported level of disability and his functional abilities in his daily routine.

28I agree with the respondent, and I place little weight on the provisional diagnosis of an adjustment disorder and specific phobia by Dr. Jyoti in the absence of supporting documentation of an accident-related psychological impairment by the applicant’s treating physicians. Dr. Jyoti did not review the CNRs of the applicant’s doctors and relies solely on the applicant’s self reports in completing her pre-screen report. I further find that the applicant reported that he has no fear avoidance of driving to Dr. Nikkou, and he denied the need for any psychological treatment or intervention.

29Overall, I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG in the absence of any medical documentation from his treating physicians with consistent findings in support of an accident-related psychological impairment.

30Therefore, I find that the applicant has not met his onus with respect to being removed from the MIG. I find the applicant is subject to the MIG.

The disputed treatment plans

31Since the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG, and the MIG limits are exhausted, it is not necessary to consider whether the plans are reasonable and necessary.

Section 38(8) of the Schedule

32As an alternative argument, the applicant submits that the respondent did not properly deny the two disputed treatment plans for a psychological assessment, and for physiotherapy services in accordance with s. 38(8) of the Schedule.

33Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days after the day of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

34If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8). See: Aviva General Insurance Company v. Catic, 2022 ONSC 6000.

35The Tribunal in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT), has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

Sufficiency of the Respondent’s Denial of Plan dated January 25, 2023 in the amount of $2,200.00

36The applicant argues that the plan dated January 25, 2023, for a psychological assessment in the amount of $2,200.00 was improperly denied by the respondent. The respondent sent a letter to the applicant on February 12, 2023 denying the benefit, within 10 business days after receiving the plan on February 2, 2023. The applicant argues that the respondent’s denial of this plan does not comply with s.38(8) of the Schedule because it does not provide a sufficient medical reason for the denial.

37The respondent stated in its denial letter dated February 12, 2023, that the applicant’s injuries fall under the MIG, and the subsequent information the applicant provided does not support a medical condition that would prevent recovery under the MIG limit. The respondent requests that the applicant attend an IE to determine whether the proposed assessment is reasonable and necessary.

38I find that the February 12, 2023 notice was a valid denial letter. The respondent indicated that the applicant’s injuries fall under the MIG, and it had not received any medical information to support an injury to warrant the applicant’s removal from the MIG. The respondent also requested an IE to determine whether the applicant sustained a non-minor injury or a medical condition that would prevent recovery under the MIG.

39Here, the respondent states that it has not received medical evidence of a medical condition that warrants removal from the MIG. The respondent states that the medical evidence it has received suggests that the applicant sustained a minor injury, which is defined as sprain, strain, whiplash…and any clinically associated sequelae to such injury. The respondent requested medical records that it does not have but requires to determine whether the applicant’s injuries fall outside the MIG. As such, I find the respondent’s reference to the MIG, description of the applicant’s injuries as minor and the request for further information in the denial letter was a valid denial of the plan.

40In sum, I find that the February 12, 2023 notice was a valid denial letter. I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.

41I find on a balance of probabilities that the applicant has not met his burden to establish that this plan is payable under section 38.

Sufficiency of the Respondent’s Denial of OCF-18 dated May 16, 2024 for $2,386.86

42The applicant submitted a plan in the amount of $2,386.86, for a physiotherapy services. The respondent wrote to the applicant on June 17, 2024, denying the benefit, within 10 business days after receiving the plan on June 3, 2024.

43The applicant submits that it was an improper denial as the respondent did not provide a specific medical reason for its denial.

44I find that the June 17, 2024 notice was a valid denial letter. It indicates that the respondent has reviewed the medical information and determined that it does not support the applicant’s entitlement to medical and rehabilitation benefits beyond the MIG. The respondent states that based on the available information, the applicant’s injuries appear to be minor, which includes sprain, strain, whiplash... and any clinically associated sequelae to such an injury. In addition, the respondent requested that the applicant attend an IE to determine whether his injuries require treatment beyond the MIG limits. I find the respondent’s reference to the MIG and minor injury is a valid medical reason.

45Therefore, I find on a balance of probabilities that the applicant has not met his burden to establish that this plan is payable under section 38.

Interest

46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits delayed or owing, the applicant is not entitled to interest.

ORDER

47For the reasons outlined above, I find that:

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

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The respondent’s denials of the disputed plans were proper notice in accordance with s. 38(8) of the Schedule;

iv. The applicant is not entitled to interest; and,

v. The application is dismissed.