Citation: Campbell v. Intact Insurance Company, 2026 CanLII 26843

Licence Appeal Tribunal File Number: 24-011441/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:

Shemroy Campbell

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Shemroy Campbell, Applicant Hermia Leung, Paralegal

For the Respondent: Eluxmeenah Rishihesan, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Shemroy Campbell, the applicant, was involved in an automobile accident on October 5, 2023, 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 $7,520.00 for an Elbow Flexion and Extension Unit, submitted on a claim form (OCF-6) dated July 30, 2024?

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

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant’s injuries are not predominantly minor and he is not subject to the MIG. The applicant is not entitled to the disputed OCF-6 or to interest. The respondent is not liable to pay award.

ANALYSIS

Are the applicant’s injuries predominantly minor

4The applicant’s injuries are not predominantly minor which 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.

7For context, the applicant’s vehicle was impacted by a vehicle heading in the opposite direction but taking a left turn. The airbags were deployed, and first responders helped the applicant out of the vehicle. The applicant experienced immediate symptoms including pain, swelling, and inability to fully flex or extend his left elbow.

8The applicant argues that his left elbow injury is not predominantly a minor injury because he has been diagnosed with left elbow post traumatic arthrofibrosis. This diagnosis is provided by Dr. Kowalczuk on June 18, 2024. The applicant also argues that he has chronic pain with a functional impairment which warrants removal from the MIG. The applicant submits that he meets the definition of chronic pain found in T.S v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) at para. 23:

Chronic pain can be described as ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual’s well-being. A simpler definition for chronic or persistent pain is pain that continues when it should not.

9Further, the applicant argues that he lacks 70 degrees of active elbow flexion, and 50 degrees of elbow extension compared bilaterally, making him unable to touch his face or achieve full elbow extension. On this point, I note that removal from the MIG is based on the nature of the injury rather than degree of impairment that flowed from that injury. Although OCF-18s inquire “Is this impairment predominantly a minor injury as referred to in the Minor Injury Guideline”, the MIG itself focuses on injury rather than impairment. However, assessment of chronic pain requires a two-prong approach including assessment of the applicant’s functional impairment.

10The respondent’s position is that the applicant’s injuries are predominantly minor, and he is subject to the MIG. The respondent relies on a s. 44 general practitioner insurer examination report by Dr. R. Moolla, dated July 9, 2025. Dr. Moolla diagnosed the applicant with sprain or strain of his cervical spine and left elbow, however, he also opined it was unclear why the applicant reports worsening of his pain one year and eight months after the subject accident. Dr. Moolla could not reconcile his diagnosis with the applicant’s pain complaints.

11I am persuaded that the applicant’s injuries warrant removal from the MIG. An x-ray of his left elbow revealed elbow effusion on October 18, 2023 and a follow-up was recommended by Dr. C. Wei. MRI imaging reviewed by Dr. Zaid Jibril on November 22, 2023 revealed moderate synovial thickening with joint effusion (synovitis), patchy periarticular marrow edema with cystic changes near the radial head, coronoid process of the ulna, and capitellum. It also showed joint space narrowing, mild tendinosis of the common extensor origin, and mild narrowing at the radio capitellar joint with small osteophyte formation, suggesting possible inflammatory arthropathy.

12However, the applicant reported to Dr. Moolla that he was experiencing almost constant aching pain, sharp pain with flexing, lifting, gripping, or squeezing, and intermittent radiation to the upper lateral forearm. Physical examination showed reduced range of motion. In my view, a sprain or strain alone, as diagnosed by Dr. Moolla, does not address the applicant’s pain, degree of reduced range of motion, lack of improvement through physiotherapy, and prolonged duration of symptoms. Dr. Moolla further assessed the applicant in 2025 as reviewed previously and did not change his opinion.

13On April 3, 2024, Dr. Bidales at Durham Bone & Joint Specialists noted shoulder stiffness, reduced range of motion, and pain, diagnosing osteoarthritis, shoulder injury, soft tissue injury, and shoulder impingement.

14On May 29, 2024, Dr. Daniel Avrahami at Durham Bone & Joint Specialists noted left elbow pain, stiffness, and limited mobility also described as arthropathies of the left elbow. He diagnosed arthrofibrosis of the left elbow and recommended a dynamic mobilization brace.

15Subsequently, Dr. Kovalczuk, orthopaedic surgeon, prescribed a dynasplint to improve the applicant’s range of motion in his left elbow. Dr. Kovalczuk opined that low load prolonged duration stretch, using a dynasplint, is necessary because physiotherapy has not improved his range of motion. Further, that range of motion should be addressed before scar tissue builds up requiring surgical intervention. While I recognize that surgical intervention may become necessary in the future, it is not necessary at the time of the parties’ submissions.

16I find that the applicant has established continuous pain of such severity that it causes distress accompanied by a functional impairment or disability. This conclusion more accurately addresses the applicant’s condition, specifically, the length of time of the applicant’s pain and restriction, the degree of the applicant’s reduced range of motion, and the lack of improvement through physiotherapy. I note that the Superintendent’s Guideline No. 01/14 contemplates that a treatment phase within the MIG will not typically exceed twelve weeks in duration. Whereas the applicant’s symptoms, including his reduced range of motion and pain, are reported consistently well beyond this period. Further, Dr. Moolla could not address the applicant’s reporting of worsening pain after further treatment had been denied due to being subject to the MIG. Dr. Moolla did not consider chronic pain in his analysis. Taking a holistic approach in considering the applicant’s accident-related condition and complaints favours the applicant’s removal from the MIG on the basis of chronic pain with a functional impairment, with the goal of accessing speedy treatment in order to avoid surgery due to the severity of his arthrofibrosis.

17For the reasons above, on a balance of probabilities, I find that the applicant’s injuries are not predominantly a minor injury, and this warrants removal from the MIG.

Is the applicant entitled to $7,520.00 for an Elbow Flexion and Extension Unit, submitted on a claim form (OCF-6) dated July 30, 2024?

18I find that the applicant is not entitled to this OCF-6.

19Section 38(2) of the Schedule states that an insurer is not liable to pay an expense that was incurred before the insured person submits a treatment and assessment plan (OCF-18) in accordance with s. 38(3) unless an exception applies. The burden of proof is on the applicant to establish entitlement. Since the OCF-6 is for a medical or rehabilitation benefit, s. 38(2) applies.

20While the applicant argues that the device is reasonable and necessary, he does not address the respondent’s reason for denial, requesting the applicant to submit an OCF-18. The respondent’s denial also included other reasons, such as application of the MIG and reference to the amount being over $250.00 contrary to the exceptions in section 38(2). While the MIG no longer applies, the Schedule is clear that an OCF-18 must be submitted unless an exception applies. I find that the applicant has not established that an OCF-18 was submitted and he has not established that any of the exceptions contemplated by the Schedule apply in this case.

21For the reasons above, on a balance of probabilities, the applicant is not entitled to the OCF-6 in dispute.

Interest

22The applicant is not entitled to interest because it applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. There are no overdue benefits payable on this application.

Award

23The 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. Since there are no benefits payable that were unreasonable withheld or delayed, the respondent is not liable to pay an award.

ORDER

24For the reasons above, I make the following orders:

i. The applicant is not subject to the MIG.

ii. The applicant is not entitled to the disputed OCF-6.

iii. The applicant is not entitled to interest.

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