Licence Appeal Tribunal File Number: 24-007312/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:
Ahmed Mahad Farah
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Sarah Guergis
APPEARANCES:
For the Applicant: Julia Logoutova, Paralegal
For the Respondent: Nolan Cattell, Counsel
HEARD: In Writing
OVERVIEW
1Ahmed Farah, the Applicant, was involved in an automobile accident on June 6, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing 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? Note: The parties agree the MIG limits have not been exhausted, $29.73 remaining.
ii. Is the Applicant entitled to the physiotherapy treatment plans/OCF-18s (“plans”) proposed by 2430302 Ontario Inc., as follows:
a. $3,185.19 for physiotherapy services, in a plan submitted April 25, 2023;
b. $2,227.73 for physiotherapy services, in a plan submitted June 27, 2023;
c. $1,749.00 for physiotherapy services, in a plan submitted August 30, 2023; and
d. $1,270.27 for physiotherapy services, in a plan submitted October 11, 2023.
iii. Is the Applicant entitled to the assessments proposed by 2430307 ONT LTD, as follows:
a. $2,300.00 for an orthopedic assessment, in a treatment plan dated April 25, 2023; and
b. $2,300.00 for a neurological assessment, in a treatment plan dated June 27, 2023?
c. $2,300.00 for a chronic pain assessment, in a treatment plan dated August 30, 2023?
iv. Is the Applicant entitled to interest on any overdue payment of benefits?
PRELIMINARY ISSUE
3The Respondent submits that this application should be dismissed as the Applicant failed to attend at properly scheduled Insurer’s Examinations (IE) as per s.44 of the Schedule.
4The Respondent did not raise this preliminary issue at the case conference held on June 3, 2024, and it was not included as an issue in dispute in the Case Conference Report and Order. Nor did the Respondent bring a motion in the period before this hearing to request to add the preliminary issue. Rather, the Respondent appears to have raised this preliminary issue for the first time in its written hearing submissions, after the Applicant had already provided his initial written hearing submissions.
5Further, the Respondent has not provided any explanation as to why this preliminary issue could not have been raised at any point prior to the written hearing.
6Therefore, for the reasons stated above, the s.44 non-attendance issue will not be added as an issue for this hearing.
RESULT
7I find the Applicant is not removed from the MIG.
8I find the plans in dispute are not payable.
9I find no interest is owing.
ANALYSIS
Applicability of the Minor Injury Guideline
10I find that the Applicant is not removed from the MIG.
11Section 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.”
12The Applicant did not make submissions on the grounds on which they should be removed from the MIG. Nor did the Applicant provide reply submissions.
13The Applicant relies on:
i. An OCF-18 from April 15, 2023, from Dr. Paul Bruni, chiropractor, who wrote that the Applicant was diagnosed with chronic pain, suffered from a significant functional loss with regards to ranges of motion and activities.
ii. Dr. Bruni also wrote that “the Applicant reports significant difficulty with activities of daily living such as sustained postures, lifting, carrying and push/pull manoeuvres. The patient has sustained a significant loss of function when compared to pre-accident. These functional impairments have resulted in significant and continuous limits and restrictions on housekeeping activities and social activities.”
iii. He further opined that the Applicant “demonstrates three or more criteria for chronic pain syndrome as per the AMA Guides 6th Edition (e.g., physical deconditioning, failure to restore pre-injury functions, psychosocial sequelae development).”
14The Respondent submits that the Applicant’s physical injuries from the accident are soft tissue in nature and fall within the definition of a Minor Injury as per the Schedule. The Respondent submits that the Applicant has failed to prove on a balance of probabilities that because of the subject accident, he sustained a physical injury that would remove him from the MIG limits.
15The Respondent further submits that there are no documented entries on the Applicant’s OHIP Summary from the date of the accident June 6, 2022, until November 14, 2023, a period of approximately 17 months.
16Further, the Respondent submits the Applicant has failed to provide any compelling evidence of a pre-existing condition that would remove him from the MIG. The Applicant failed to provide sufficient documentation pre-accident to demonstrate he had ongoing pain that may be a barrier to recovery if contained within the MIG limits.
17I find that the Applicant has not pointed me to evidence which would establish injuries that are outside of the MIG or their inability to recover within the MIG limits. While I acknowledge that the Applicant was diagnosed with chronic pain by Dr. Bruni, I have not been pointed to any corroborating evidence of chronic pain other than this plan.
18For the reasons noted above, I find that the Applicant has not pointed me to evidence that she suffers from an injury that is not minor as defined in the Schedule. She remains within the MIG and is subject to its $3,500.00 limit on treatment.
19The Applicant further submits that the plans in dispute are payable in accordance with s. 38(8).
S.38(8)
20I find that the plans are not payable in accordance with s.38(8).
21Section 38(8) requires an insurer to inform an insured person, within ten 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 s.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.
22Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. S. 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods or services to not be reasonable and necessary.
23If any insurer fails to comply with its obligations under section 38(8), the following consequences set out in section 38(11) of the Schedule are triggered:
i. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
ii. The insurer shall pay for all 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 a notice described in subsection (8).
24The Applicant that “the treatment plans” are payable due to the Respondent’s non-compliance with s.38(8).
25The Applicant referenced multiple points of alleged non-compliance which include:
i. The Respondent failed to advise the Applicant about the injuries and symptoms listed in the treatment plans in dispute;
ii. The Respondent failed to compare the injuries listed in treatment plans in dispute to the Minor Injury Guideline;
iii. The Respondent failed to refer the Applicant to the section of the Schedule it relied upon in its denial; and
iv. “The Respondent failed to clearly and unequivocally advise the Applicant as to which records and from which “health practitioner” it was requesting to support the need for services, to use as evidence that the Applicant’s injuries fall outside the MIG, and to establish a pre-existing medical condition that would have precluded the applicant “out of the MIG”.
26The Respondent submits that it has complied with all obligations under the Schedule, in denying the treatment plans and maintaining the MIG position.
27The allegations of non-compliance from the Applicant are not in accordance with the Schedule. The Respondent must identify what it agrees to pay for, what it does not agree to pay for, and why. Its rationale must be reasonable.
28Upon review of the Respondent’s denial letters, I find that the Respondent provided reasonable explanations for their denials. Overall, the Respondent identified that it has had insufficient medical evidence to support treatment outside of the MIG limits and as such requires further/additional assessments.
29Therefore, I find the Respondent was compliant with s.38(8) and s.38(11) is not triggered.
ORDER
30I find the Applicant is not removed from the MIG.
31I find the plans in dispute are not payable.
32I find no interest is owing.
Released: March 10, 2026
Sarah Guergis
Adjudicator