Licence Appeal Tribunal File Number: 23-015522/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:
Salah Abdulsamad
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gordon Stencell
APPEARANCES:
For the Applicant:
Georgiana Masgras, Counsel
For the Respondent:
Jeremy Hanigan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Salah Abdulsamad, the applicant, was involved in an automobile accident May 3, 2019, 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, Economical Mutual 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 $5,080.00 for chiropractic services, proposed by Jamal Alaloul and Rasha Izz in a treatment plan/OCF-18 (“plan”) dated September 15, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find as follows:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline?
ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The treatment plan is not payable pursuant to s. 38.
iii. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
iv. As no benefits are payable, the applicant is not entitled to interest.
ANALYSIS
The Minor Injury Guideline
4I find that the applicant has not demonstrated, on the balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG.
5Section 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.”
6An 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.
7The applicant submits he should be removed from the MIG due to his persisting back condition and headaches. The applicant reported back pain to his family physician 7-days post accident. The applicant relies on the OCF-18 completed by Oxford Spine Clinic on September 15, 2023, as evidence of the applicant’s persistent back issues. The OCF-18 indicates the applicant’s lower back pain, myalgia, and problems related to lifestyle impair his tasks of employment and tasks of normal life. The goals of the treatment plan are pain reduction, increased range of motion, and increase in strength for the purpose of return to activities of normal living. The applicant also emphasizes complaints of headaches, lower back pain, fatigue, difficulty sleeping, inability to concentrate, eye pain associated with headaches, morning tiredness, and stress.
8The respondent argues the applicant’s injuries fall within the MIG and that it is therefore not liable to pay for any further treatments beyond the monetary limits of the MIG. The respondent relies on the clinical notes and records (“CNRs”) of Dr. Rofaiel on March 29, 2019, which indicate that the applicant sought treatment for back pain prior to the motor vehicle accident (“MVA”) as evidence the applicant’s back pain is a pre-existing condition and not the result of the MVA. The respondent also relies on the CNRs of Alpha Diagnostic Imaging dated August 17, 2020, finding moderate degenerative disc changes that the applicant’s back pain is not related to the MVA.
9The respondent also relies on the OCF-3 by Mohammad Hassan Sanjanchi Niloo, physiotherapist, dated June 11, 2019, that the applicant is suffering from cervical, thoracic, lumbar, left shoulder, and left wrist sprain and strain with an anticipated duration of disability stated as 9-12 weeks as evidence the applicant’s injuries were minor according to the MIG. The respondent also relies on the evidence of its correspondence to the applicant October 3, 2019, noting the applicant’s request to close the file as he had no further treatment booked and that on September 25, 2019, Toronto Physiotherapy and Rehabilitation Clinics confirmed same. Lastly, the respondent relies on the CNRs of Dr. Rofaiel that the applicant again complained of back pain in August of 2020. Lumbar spine imaging revealed degenerative changes. On November 6, 2020, the applicant told his doctor his back pain had improved.
10The applicant also submits he should be removed the from MIG due to stress and headaches. He relies on the CNRs of Dr. Ross Roussev dated October 17, 2022. Dr. Rousev specified the applicant had been suffering headaches the past two-years and they disturb and wake him from his sleep.
11The respondent submits the applicant should not be removed from the MIG based on his headaches as it relies on the CNRs of Dr. Ross Roussev for treatment of headaches dated October 17, 2022, identifying, “He reports car accident in 2020, denies head injuries.”, and that an MRI of the head was ordered with MRA because of his vascular risk factors and previous history of stroke that occurred in 2009.
12I give weight to the notes of Dr. Rofaiel dated March 29, 2019, documenting the applicant’s pre-existing back pain within two-months pre-accident. I give weight to the notes of Dr. Roussev dated October 17, 2022, choosing to explore headaches for MRI and MRA on the basis of vascular factors, a stroke having occurred in 2009. Furthermore, I give weight to the applicant’s assertion to the respondent that no further treatment was scheduled and requesting his file be closed.
13While not clear, the applicant also argues removal from the MIG due to severe and complex injuries yet does not point to any specific evidence beyond the general statement.
I find that the applicant has not met his burden to prove on a balance of probabilities that his injuries are a result of the accident. Consequently, I find that his injuries are predominantly minor and subject to treatment within the MIG limit.
15The applicant also argues pursuant to s. 38 that he should be removed from the MIG, which I address below.
16Section 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.
17The applicant submits that because the respondent did not re-engage with medical evidence to justify its denial, relying instead on a technical legal argument, this treatment plan should be approved.
18The respondent argues that the explanation of benefits highlighted there was no medical evidence leading it to perceive the applicant was outside of the MIG and invited applicant to make submissions, if any.
19I have reviewed the denial explanation contained in the Explanation of Benefits dated September 23, 2023, denying the treatment plan in dispute. I disagree with the applicant’s characterization of the denial. The respondent referenced information specific to the applicant including applicable OCF documents, dates, doctor and clinic names, referenced previously received CNRs, and referred to the MIG. The respondent also invited any supporting documentation and that an Insurer’s Examination is not required. I find based on the evidence before me, the denial contains valid medical reasons compliant with s. 38(8) and therefore s. 38(11) does not apply.
Interest
20There is no overdue payment of benefits, therefore I find the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
21The respondent is not liable to pay an award under s. 10 of Regulation 664.
22Under s. 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. An award should be proportionate and considerate of the blameworthiness of the insurer, the vulnerability of the insured and the advantage wrongfully gained by the insurer from its misconduct. The Tribunal has found unreasonable behaviour by an insurer to be behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
23The applicant made no submissions for an award.
24The applicant has not met the burden of proof to support the respondent has acted in a manner meriting an award. No award is payable.
ORDER
25I find that:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline.
ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The treatment plan is not payable pursuant to s. 38.
iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.
iv. The applicant is not entitled to interest.
Released: January 12, 2026
Gordon Stencell
Adjudicator