Citation: Shah v. Intact Insurance Company, 2026 ONLAT 24-010526/AABS

Licence Appeal Tribunal File Number: 24-010526/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:

Aruna P Shah

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Caley Howard

APPEARANCES:

For the Applicant:

Carla Barcelo, Paralegal

For the Respondent:

Jennifer Macko, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Aruna Shah, the applicant, was involved in an automobile accident on March 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 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by Complete Rehab Centre in a treatment plan/OCF-18 submitted August 8, 2022?

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?

3The applicant withdrew the issue of her entitlement to a non-earner benefit in her submissions dated July 24, 2025.

RESULT

4I find that:

i. The applicant remains in the MIG, therefore it is not necessary to consider whether the disputed treatment plan is reasonable and necessary;

ii. The applicant is not entitled to interest; and

iii. The respondent is not liable to pay an award.

ANALYSIS

The applicant remains in 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 that she sustained both physical and psychological injuries in the accident, including neck, upper back, elbow and shoulder pain, and a partial tear of the rotator cuff.

8The respondent submits that the applicant’s accident-related injuries include only soft-tissue injuries, sprains and strains, which fall within the MIG.

The applicant does not have a psychological impairment that warrants removal from the MIG

9The applicant submits that she has a psychological impairment caused by the accident. In support of her submission, she relies on the psychological assessment report of Dr. Betty Kershner, Psychologist, dated January 19, 2023.

10The respondent submits that the applicant has not proven that she suffers from a psychological impairment caused by the accident. In support of its submissions, it relies on the clinical notes and records (“CNRs”) of Dr. Ihsan Waraich, the applicant’s family physician, and the Insurer’s Examination (“IE”) Psychology Assessment report of Dr. Douglas Saunders, dated April 11, 2023.

11Dr. Kershner based her assessment of the applicant on a clinical interview and the results of psychometric testing. She opined that the applicant sustained the following psychological impairments as a direct result of the accident: adjustment disorder, with mixed anxiety and depressed mood; specific phobia, situational type (motor vehicles); and somatic symptom disorder, with predominant pain, persistent.

12Dr. Saunders based his assessment of the applicant on a clinical interview, the results of psychometric testing, and a review of the applicant’s medical records, specifically the CNRs of Dr. Waraich, which revealed no reports of psychological symptoms or concerns. Dr. Saunders opined that the applicant sustained no psychological impairment as a result of the accident.

13My review of the CNRs of Dr. Waraich reports by the applicant respecting psychological symptoms or concerns, despite the applicant attending appointments with Dr. Waraich regularly throughout 2022 and 2023. I give the CNRs of Dr. Waraich weight due to their ongoing doctor-patient relationship and the frequency with which the applicant saw Dr. Waraich during the relevant period.

14I give the report of Dr. Saunders more weight than that of Dr. Kershner because Dr. Saunders reviewed the applicant’s medical records, which Dr. Kershner did not. I find that Dr. Saunders’ opinion is consistent with the CNRs of Dr. Waraich, which contain no reports from the applicant of psychological symptoms.

15Therefore, I find that the applicant has not proven, on a balance of probabilities, that she suffers from a psychological impairment as a result of the accident.

The applicant does not have chronic pain with a functional impairment

16I find that the applicant has not proven that she has chronic pain with a functional impairment as a result of the accident.

17The applicant submits that the physical injuries she sustained in the accident, including the partial tear of her rotator cuff, continue to cause her pain three years after the accident, and this constitutes chronic pain, which has resulted in functional impairment and warrants her removal from the MIG. The applicant relies on the CNRs of Dr. Waraich and the psychology assessment report of Dr. Kershner.

18The respondent submits that the applicant’s accident-related injuries are limited to sprains and strains, which fall within the MIG. The respondent relies on the musculoskeletal IE report of Dr. James Steward, physician, dated November 17, 2022.

19I have not been directed to any diagnosis of chronic pain, by Dr. Waraich or another doctor, but I do note that the CNRs of Dr. Waraich contain regular reports of pain due to her accident-related injuries between March 2022 and August 2022, including some references to functional impairment.

20However, the next entry in the CNRs of Dr. Waraich, after August 2022, that the applicant directs me to is dated February 2023. Thus, there is no evidence of any complaints of accident-related pain for the approximately five-month period between August 2022 and February 2023.

21Further, I find that the February 2023 reports of pain in the applicant’s elbow, diagnosed by Dr. Waraich as epicondylitis or “tennis elbow”, are not related to the accident. While the applicant submits that this injury can develop gradually over time, or suddenly as the result of a car accident, I find that the timing of the applicant’s elbow pain does not coincide with the accident. The CNRs of Dr. Waraich indicate that on February 9, 2023, the applicant reported that she had been experiencing elbow pain for 5 months, which means that the pain started several months after the accident. Dr. Waraich does not attribute the injury to the accident. Given the timing of the onset of the applicant’s symptoms and the lack of evidence that her elbow pain was related to the accident, I find it more likely than not that her elbow pain is not accident-related.

22The next entry in the CNRs of Dr. Waraich that the applicant directs me to is dated January 25, 2024, which is approximately one and a half years after the last accident-related report of pain. On this date, the applicant reports having pain in her shoulder for a month. Subsequent x-rays revealed a partial tear of the applicant’s rotator cuff. I find that the CNRs do not link the applicant’s injury to the accident. Similarly, I find that the timing of the applicant’s complaint of shoulder pain in January 2024 does not support her claim that she suffers from chronic pain as a result of the accident.

23The psychology assessment of Dr. Kershner, which took place on September 5, 2022, included a report that the applicant continued to experience ongoing pain in her left leg, right ankle, knees, neck and hands, and details certain housekeeping and daily tasks that the applicant is unable to do as of that date. I give less weight to this evidence of functional impairment as it was based on the applicant’s self-reporting in the context of a psychology assessment and was not based on the objective observations or testing of a physician or other medical professional specializing in physical impairments.

24The report of Dr. Stewart was based on his physical examination of the applicant on June 22, 2022. Dr. Stewart diagnosed the applicant with a cervicothoracic sprain/strain injury as a result of the accident. Dr. Stewart observed that the applicant continued to experience myofascial discomfort three months after the accident. He opined that this was not unreasonable given the applicant’s age (76) and her reported pre-existing conditions (spondylosis of the neck with associated chronic neck and trapezius pain) and that it should continue to resolve over the next three months. I find that Dr. Stewart’s opinion is supported by Dr. Waraich’s CNRs, which show no further accident-related complaints after August 2022.

25I find that the applicant has not directed me to evidence that she reported accident-related pain, or any associated functional limitations, to a doctor after September 5, 2022, despite continuing to see a doctor regularly for unrelated health concerns. Therefore, I accept Dr. Stewart’s opinion that the applicant’s reports of pain and limited reports of functional limitations to Dr. Waraich and Dr. Kershner, resulted from the applicant’s cervicothoracic sprain/strain injury rather than from chronic pain.

26As a result, I find that the applicant has not proven, on a balance of probabilities, that she suffers from chronic pain with functional impairment and the applicant remains in the MIG.

27As the applicant is subject to the MIG, it is not necessary to consider whether the disputed treatment plan is reasonable and necessary.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.

Award

29The 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 there are no benefits withheld or delayed, the respondent is not liable to pay an award.

ORDER

30I find that:

i. The applicant remains in the MIG. Therefore, it is not necessary to consider whether the treatment plans are reasonable and necessary;

ii. The applicant is not entitled to interest; and

iii. The respondent is not liable to pay an award.