Citation: Umer v. Jevco Insurance Company, 2026 CanLII 2275

Licence Appeal Tribunal File Number: 24-007003/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:

Hafsa Umer

Applicant

and

Jevco Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Brandon Ferrante, Paralegal

For the Respondent: Eluxmeenah Rishihesan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hafsa Umer, the applicant, was involved in an automobile accident on June 30, 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, Jevco 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 limit?

ii. Is the applicant entitled to $2,125.60 for physiotherapy services, proposed by Latitude Health Inc. in a treatment plan submitted July 18, 2023?

iii. Is the applicant entitled to the assessments proposed by HydroHealth Evaluations Inc., as follows:

1. $1,950.00 for a concussion assessment, in a treatment plan submitted on March 27, 2023; and
2. $2,460.23 for a neurological assessment, in a treatment plan submitted on March 13, 2023?

RESULT

3I find that the applicant’s accident-related injuries are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG.

4I find that the applicant is not entitled to the treatment plans in dispute.

ANALYSIS

Application of the Minor Injury Guideline

5I find that the applicant sustained a minor injury as a result of the accident and, therefore is subject to the $3,500.00 funding limit on treatment.

6Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.

8The applicant submits that she should be removed from the MIG because she suffered a concussion and chronic pain.

The applicant is not removed from the MIG on the basis of a concussion

9I find that the applicant has not proven on a balance of probabilities that she suffered a concussion as a result of the accident that would warrant removal from the MIG.

10If established, a concussion will remove an insured from the MIG because the MIG relates to “minor injuries”, as defined in s. 3(1) of the Schedule. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, she suffered a concussion.

11The applicant submits that following the accident on June 30, 2022, she went to the emergency department at Milton District Hospital, where Dr. Maryam Tanjani reported during the visit that “regarding headache and mild nausea that she has might be concussion”. The applicant visited Milton District Hospital again on November 6, 2022, reporting complaints of throbbing headaches, dizziness and nausea. She also attended on April 26, 2023, again due to complaints of epistaxis and headaches. The applicant reported worsening headaches and simultaneous nosebleeds following her concussion. The emergency note indicates, “She was concerned with her concussion history that this may be related. She gets intermittent headaches as part of her post-concussion syndrome which she manages with Naproxen”.

12The applicant also relies upon the Clinical Notes and Records (“CNRs”) of Dr. Maribel Mendoza, family physician, who she claims is up to date on her complaints and symptoms resulting from the accident. She submits that Dr. Mendoza referred her to Dr. Sumiti Nayar, Neurologist. Dr. Nayar in his Neurological Assessment report dated August 19, 2024, notes the applicant’s complaints of daily headaches and confirmed that her symptoms are consistent with cervicogenic pain and migraine type headaches.

13The applicant further relies upon the CNRs from Latitude Health which note her ongoing reports of migraines and headaches. According to the progress note, dated January 6, 2023, the applicant reported that she was seen by a concussion specialist and confirmed concussion symptoms.

14Finally, the applicant relies upon the CNRs of BeActive Physio which note her ongoing headaches.

15The respondent submits that while the applicant in her submissions refers to a concussion diagnosis, the applicant herself has pointed out that the ER doctor only said her symptoms might be a concussion, but never formally diagnosed it, and in fact only advised her to take Tylenol and Advil to manage her symptoms. The respondent further submits that the applicant in her submissions mentions that she saw a concussion specialist, but no further details or elaboration is provided, including even the name of the specialist. The respondent also argues that while the applicant submits that her family doctor, Dr. Mendoza, is aware of her situation, there is a lack of evidence of her actually complaining about her accident-related complaints to Dr. Mendoza.

16I agree with the respondent that there was no diagnosis made by Dr. Tanjani on June 30, 2022 of a concussion. The note states the applicant did not hit her head. She makes complaints of generalized headaches and mostly neck pain. She was advised to take Tylenol and Advil and most likely has whiplash. Regarding her headache and mild nausea, the note states that she might have a concussion, and she was told to follow up with her family doctor. I find upon review of the ER note dated November 6, 2022, the applicant complained of headaches and nausea after a chiropractor appointment. The report states that she has “headache-like migraine resolving”. Again, no diagnosis was made of a concussion. The ER note from April 27, 2023, also does not diagnose the applicant with a concussion. The applicant was seen for epistaxis. While the note indicates that the applicant was concerned with her concussion history that may be related, there was no diagnosis or assessment of a concussion made and the conclusions made were about her epistaxis.

17In addition, I find upon review of the CNRs of Dr. Mendoza, that the notes consist of records and imaging provided to Dr. Mendoza. While the Decoded OHIP summary notes that the applicant was seen post-accident by Dr. Mendoza, there are no CNRs of these visits. Therefore, I agree with the respondent, that there is no indication within these notes that the applicant ever saw Dr. Mendoza with respect her accident-related injuries or for her concussion related symptoms.

18I further find upon review of the report of Dr. Nayar, dated August 19, 2024, while the letter states that he was asked to see Dr. Mendoza regarding the applicant’s “recurrent headaches for several years, concussion 2 years ago”, there is no mention of the applicant suffering a concussion in his report. It notes that she has suffered from headaches since she was 14-15 years old and was diagnosed with migraines. It further notes that the applicant had an accident two years ago and her headaches started again. Dr. Nayar states that the applicant was told she had a concussion and whiplash. Dr. Nayar makes no mention of a diagnosis of concussion and concludes that she has cervicogenic pain and headaches.

19I find that the applicant has not pointed me to persuasive medical evidence to support that she suffered a concussion as a result of the accident. While there is evidence that she suffered headaches as a result of the accident, this does not mean that a concussion was sustained. I find that no medical practitioner provided an opinion or diagnosis that the applicant suffered a concussion as a result of the subject accident.

20For the reasons outlined above, I find on a balance of probabilities, that the applicant is not removed from the MIG on the basis of a concussion.

The applicant is not removed from the MIG on the basis of chronic pain

21I find that the applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.

22Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found that the criteria for a chronic pain condition outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

23The applicant submits that she should be removed from the MIG, as she suffers from chronic pain as a result of the accident. She relies upon the CNRs of her family physician, Dr. Mendoza, the Neurology report of Dr. Nayar, the CNRs of Latitude Health, and the CNRs of BeActive Physio.

24The applicant submits that Dr. Mendoza acknowledges that she continues to report lower back pain a year after the accident and sends her for an x-ray of the lumbar spine. She argues that this notation further supports that her ongoing chronic pain was still affecting her life over a year post-accident. The applicant further submits that she has attended Latitude Health in regard to her chronic pain in her neck, lower back, shoulder and headaches since September 20, 2022. The applicant points to the re-evaluation report of Dr. Muzos, dated April 1, 2024, that diagnoses her with Myofasical Pain Syndrome (“MFPS”) of the suboccipital muscle (bilateral) and left scalene muscle. She submits that MFPS is a chronic pain condition, which does not fall within the definition of a minor injury. The applicant also argues that the Neurological assessment by Dr. Nayar on August 19, 2024, notes that her symptoms are consistent with cervicogenic pain and migraine type headaches, for which he recommended continuation with physical therapy, receipt of adjunct magnesium infusions and to start taking either pregabalin or duloxetine.

25The respondent submits that the applicant’s injuries fall within the MIG. It relies upon the Insurer Examination (“IE”) report of Dr. Mohamed Khaled, dated July 25, 2023, which supports the position that the applicant’s injuries are predominantly minor and do not warrant removal from the MIG. Dr. Khaled reviewed the applicant’s CNRs, completed his examination and concluded in his report that the applicant was diagnosed with mechanical low back pain, grade 2 whiplash of the neck with associated headaches. He concluded that there was no evidence of significant orthopaedic or neurological sequelae. He further noted that the applicant continued to function as a full-time engineering student and there is no evidence of ongoing accident-related neurological impairment. His opinion was confirmed in two Addendum reports dated August 18, 2023 and May 7, 2024.

26The respondent further submits that at the time of the accident, the applicant was in her 4th year of a five-year engineering program. It argues that since the accident, the applicant has continued with her school courses and co-op as normal. She also reported continuing to be independent with her personal activities of daily living and driving post-accident.

27I find that the applicant has not demonstrated that she suffers from a chronic pain condition as a result of the accident. The applicant has not demonstrated that she is functionally impaired by pain. My reasoning is based on the following findings.

28The applicable test is that ongoing pain alone is insufficient to remove the applicant from the MIG, as the pain must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. I find that the applicant has not proved on a balance of probabilities that her ongoing pain was of a significant level or was accompanied by some functional impairment or disability. I find that there is minimal evidence provided by the applicant to demonstrate that her pain prevented her from pursing her education, work, or recreational needs, or that she developed psychosocial sequelae.

29I further find that upon review of the CNRs of Dr. Mendoza, there are no records indicating that the applicant was seen in respect to any accident-related complaints. As stated above, while the Decoded OHIP summary notes appointments post-accident, the records provided do not contain any CNRs from any visits.

30Again, while the records from Latitude and BeActive support that the applicant attended for treatment post-accident and complained of ongoing pain, the applicant has not pointed the Tribunal to persuasive evidence that she suffered a functional impairment as a result of her injuries. I find that the specific CNRs referred to by the applicant note that the applicant’s injuries were improving. I further find that while the applicant submits that the re-evaluation of Dr. Muzos on April 1, 2024 diagnoses her with MFSP, Dr. Muzos actually states that she has chronic recovering MFSP and chronic recovering mechanical back pain. His diagnosis on April 1, 2024 is that the applicant has chronic grade 3 mechanical neck pain. I find that the applicant advised that she has been busy with school and co-op and has not had time to come to treatment. She reports that she was feeling good but recently started to get headaches again and tension in her neck for the past few weeks. I find that Dr. Muzos provides no rationale for the diagnosis of chronic grade 3 mechanical neck pain when the applicant’s self-report was that she had some neck tension for a few weeks. I further find that Dr. Muzos provides no opinion as to whether the applicant’s recent headaches and neck tension were as a result of the accident.

31I give weight to the IE report of Dr. Khaled, dated July 25, 2023, which supports that the applicant suffered uncomplicated soft tissue injuries. The report notes that the applicant reported that she was independent with all personal activities of daily living and driving and is enrolled in school full-time as normal. I find that the applicant has not met her onus of demonstrating that she suffered functional limitations as a result of the accident, to rebut the conclusions of Dr. Khaled.

32In addition, in terms of the AMA Guides, the applicant has not provided submissions as to whether she meets three out of six of the criteria for chronic pain. The applicant has not provided a prescription summary to support her use of prescription medication or other substances. She does not regularly visit with health providers as indicated in the CNRs of her family doctor. Thus, I find that she is not dependent on them. None of the medical information before me suggests that she is deconditioned due to disuse. The evidence indicates that she returned to school full time, and she is independent with her personal care. There is no evidence that she has withdrawn from social milieu and there is no indication of any psychological issues as a result of the accident.

33For the reasons outlined above, I find on a balance of probabilities that the applicant does not suffer from a chronic pain condition as a result of the accident and therefore she is not removed from the MIG on this basis.

The applicant is not entitled to the treatment plans in dispute

34As I have found that the applicant remains within the MIG, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary.

ORDER

35For the reasons outlined above, I find:

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

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

iii. The application is dismissed.