Licence Appeal Tribunal File Number: 24-012176/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:
Roza Naftalieva
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Marilyn Maxwell-Smith, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Roza Naftalieva, the applicant, was involved in an automobile accident on August 13, 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 the services and assessments proposed by Toronto Medical Centre, as follows:
(a) $1,356.35 for chiropractic services, in a treatment plan/OCF-18 ("plan") dated February 28, 2024; and
(b) $1,748.05 for a Biopsychosocial Assessment, in a plan dated September 11, 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?
3The parties agree that the MIG limits have not been exhausted, and the respondent submits that it has paid the applicant $2,312.81 for medical rehabilitation.
RESULT
4For the reasons below, I find that:
The applicant's injuries remain within the MIG; therefore, the MIG's monetary limit applies.
Because the applicant remains within the MIG, I do not need to assess the reasonableness of the disputed treatment plans beyond the MIG limits. The applicant qualifies for benefits up to the $3,500.00 MIG cap.
The applicant is not entitled to interest or an award.
ANALYSIS
Are the applicant's injuries predominantly minor?
5I find that the applicant's accident-related impairments are predominantly minor within the meaning of s. 3 of the Schedule and remain subject to the MIG.
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) 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."
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), 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.
8The applicant asserts that she is out of the MIG due to chronic pain and psychological impairments.
Chronic Pain
9I find that the applicant has not established a chronic pain condition with associated functional impairment that would remove her from the MIG.
10The applicant asserts that her injuries go beyond the soft-tissue impairments outlined in the MIG. She primarily relies on the OCF-3 Disability Certificate dated August 21, 2023, completed by Dr. Shadi Jahandideh, chiropractor. In that certificate, Dr. Jahandideh detailed a wide range of injuries, including cervical, thoracic, lumbar, and sacroiliac sprain/strain complaints, bilateral shoulder and lower extremity issues, headaches, dizziness, and Temporomandibular joint related symptoms.
11The respondent claims that the applicant only suffered minor soft-tissue injuries. It cites the family physician records of Dr. Galina Portnoi and the section 44 reports of Dr. Charanjit Sandhu, an internal medicine specialist, dated March 1 and March 2, 2024.
12The respondent further submits that the applicant bears the burden of proving entitlement to benefits beyond the MIG, relying on Scarlett v. Belair Insurance Company Inc., 2015 ONSC 3635 (Divisional Court). It contends that the clinical record does not support the extent of complaints documented in the OCF-3 and that Dr. Jahandideh's observations regarding psychological symptoms and a thyroid condition fall outside his area of expertise.
13The family physician, Dr. Portnoi's clinical note of August 22, 2023, records complaints of neck pain and lower back pain after the accident. The family doctor also noted right shoulder issues and reduced lumbar flexion with tenderness, but no diagnosis of fracture, neurological injury, or chronic pain syndrome. Conservative treatment and rehabilitation were recommended, along with Advil 400 mg gel.
14In a letter dated February 27, 2025, Dr. Portnoi confirmed that she had not seen the applicant since October 5, 2023. There is no convincing contemporaneous medical documentation from the family physician showing ongoing accident-related chronic pain management, referral to a specialist for a non-minor condition, or persistent functional decline.
15Regarding Dr. Jahandideh's OCF-3, although it mentions that the applicant reported several complaints soon after the accident, I give it limited weight for the CPS analysis. The form lists a wide range of reported symptoms but does not include a diagnosis, clinical reasoning, or analysis to support CPS. Instead, the conditions are mainly described as sprains and strains (such as shoulder, elbow, and ankle sprains and strains), which are typical of minor injuries under the Schedule. The extensive list of complaints, without diagnostic criteria, functional impairment, or an explanation of how these symptoms collectively meet the CPS threshold, does not support the applicant's argument that her condition is outside the MIG.
16The medical evidence used does not meet the criteria for Chronic Pain Syndrome ("CPS"). Specifically, the OCF-3 notes ongoing pain complaints but lacks objective findings, functional impairments, or clinical features consistent with CPS as defined by the Schedule. The contemporaneous family doctor records show soft-tissue-type pain complaints that were managed conservatively and do not describe the persistence, severity, or functional impact necessary to support a CPS diagnosis. Additionally, the later expert reports do not diagnose CPS nor explain how her presentation aligns with its accepted criteria. Without a clear medical explanation linking her symptoms to CPS, rather than ongoing minor injury symptoms, the evidence does not prove her condition falls outside the MIG on this basis.
17Conversely, I place greater weight on Dr. Sandhu's reports.
18In his March 1, 2024, paper review report addressing the MIG, Dr. Sandhu confirmed that the applicant's musculoskeletal injuries were consistent with residual symptoms from myofascial sprains to her cervical spine, shoulders, and thoracolumbar spine, along with ongoing post-traumatic headaches. Her musculoskeletal injuries would fall within the scope of the MIG.
19In his March 2, 2024, physician assessment report, Dr. Sandhu recorded the applicant's ongoing complaints of intermittent headaches, neck pain, bilateral shoulder pain, upper back pain, low back pain, and nightmares/flashbacks. On examination, however, neurological findings were normal, motor strength was normal, straight leg raise was negative, and there was no evidence of pathology, radiculopathy, myelopathy, or functional impairment. He concluded that the applicant sustained residual symptoms from myofascial sprains to the cervical spine, shoulders, and thoracolumbar spine, together with post-traumatic headaches, and that her prognosis was positive.
20I prefer Dr. Sandhu's evidence over the broad conclusions in Dr. Jahandideh's OCF-3. Dr. Sandhu's opinions align more closely with the limited contemporaneous medical records; they are supported by physical examination findings and directly address the MIG issue. His conclusions also match the relatively limited conservative treatment history and the absence of specialist evidence diagnosing a non-minor physical injury or a recognized psychological disorder.
21I am also not persuaded that the evidence establishes chronic pain associated with functional impairment. There is no diagnosis of chronic pain, no documented analgesic regimen beyond Advil, and no persuasive evidence that any pre-existing condition impeded maximal recovery within the MIG.
22Therefore, on a balance of probabilities, I find that the applicant has not sustained chronic pain with functional impairment that justifies removal from the MIG.
Psychological Impairment
23I find that the applicant has not demonstrated a diagnosed psychological impairment that would exclude her from the MIG.
24The applicant primarily relies on the OCF-3 Disability Certificate dated August 21, 2023, which lists a broad spectrum of injuries, including various psychological and sleep-related issues, but these have not been diagnosed.
25The applicant also relies on the family physician's clinical note of August 22, 2023, and argues that she continued to experience psychological symptoms, including anxiety, restlessness, fatigue, sleep difficulty, and post-traumatic stress symptoms.
26The respondent submits that the family physician's record also noted no diagnosis of any psychological disorder.
27The respondent submits further that there is no persuasive contemporaneous medical documentation from the family physician demonstrating ongoing accident-related psychological treatment.
28The Disability Certificate of Dr. Jahandideh does not contain a diagnosis of multiple psychological or psychosocial conditions. Dr. Jahandideh is a chiropractor and is not qualified to diagnose psychological impairments. To the extent that the certificate suggests psychological conditions, it extends beyond both the contemporaneous medical record and the practitioner's scope of expertise. I therefore place limited weight on it.
29I am not persuaded that the evidence establishes a psychological impairment that would remove the applicant from the MIG. The applicant reported nightmares and flashbacks. However, there is no psychological diagnosis from a qualified practitioner, no psychological treatment record, and no completed psychological or psychiatric examination by an insurer. On this record, the evidence falls short of establishing a psychological impairment outside the MIG.
30The respondent submits that the mere reporting of psychological symptoms arising from soft-tissue injuries does not, on its own, remove an applicant from the MIG. I agree. Whether psychological sequelae take an applicant outside the MIG depends on the evidentiary record in each case. In this case, while the applicant reported symptoms such as nightmares and flashbacks, the record does not include a diagnosis or other objective evidence of a psychological impairment beyond reported sequelae. As such, the evidence does not establish a psychological impairment that would warrant removal from the MIG.
31Therefore, on a balance of probabilities, I find that the applicant has not demonstrated that she has sustained psychological impairments that justify a removal from the MIG.
32Having considered the totality of the evidence, I find that the applicant has not met her burden of proving that her accident-related impairments fall outside the MIG. Accordingly, the applicant's claim remains subject to the MIG.
Is the applicant entitled to the disputed treatment plans?
33Since the applicant remains within the MIG, there is no need to assess the reasonableness and necessity of the disputed treatment plan. The applicant is eligible for benefits up to the $3,500.00 MIG limit.
Interest
34Interest applies to the payment of any overdue benefits under s. 51 of the Schedule. Since I have determined that none of the disputed benefits are payable, there are no overdue benefits before me and, consequently, no interest to be paid.
Award
35The 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.
36The applicant submits that the respondent unreasonably withheld or delayed payment of benefits by maintaining an incorrect position on the applicability of the MIG, by failing to acknowledge her chronic pain and psychological symptoms, and by causing a delay in treatment that she says prejudiced her recovery. She argues that the respondent's denials lacked a reasonable basis and that her inability to access timely treatment demonstrates unreasonable claims handling.
37The respondent submits that it adjusted the claim in accordance with the information available at the time, relied on medical opinions, issued written denial letters, requested further information, and arranged insurer examinations. It states that its conduct was consistent with its obligations under the Schedule. The respondent relies on Ali v. Aviva General Insurance, 2021 CanLII 344 (ON LAT), for the principle that an insurer does not act unreasonably solely because it relies on the opinions of qualified assessors.
38An award is an exceptional remedy. It is not triggered by a disagreement or even an incorrect denial. To succeed, the applicant must show that the insurer acted unreasonably in withholding or delaying benefits. The threshold is a meaningful one: the conduct must amount to more than a reasonable error or an honestly-held but ultimately incorrect position.
39I am not satisfied that the respondent's conduct meets that threshold. The respondent identified the claim as falling under the MIG, obtained s. 44 assessments from Dr. Sandhu, requested additional medical records, and issued clear written denials explaining its position and rationale. In relation to the asserted psychological impairment, the respondent also attempted to arrange insurer examinations to further investigate the issue. The applicant did not attend those examinations. The respondent cannot be faulted for a failure to investigate when its efforts to do so were unsuccessful through no fault of its own.
40Even if the respondent's position on the MIG had been incorrect, which I have found it was not, the record would still have to demonstrate that the respondent unreasonably withheld or delayed the payment of benefits. The evidence does not support such a finding. Rather, it shows that the respondent made its determinations based on the available medical evidence, arranged insurer examinations, and provided reasons for denying the claimed benefits. On this record, I do not find that the respondent unreasonably withheld or delayed payment so as to justify an award.
41The claim for an award under s. 10 of Reg. 664 is therefore denied.
ORDER
42For the above reasons, it is ordered that:
i. The applicant's injuries remain within the MIG; therefore, the MIG's monetary limit applies.
ii. Because the applicant remains within the MIG, I do not need to assess the reasonableness of the disputed treatment plans beyond the MIG limits. The applicant qualifies for benefits up to the $3,500.00 MIG cap.
iii. The applicant is not entitled to interest or an award.
iv. The application is dismissed.
Released: March 30, 2026
Harouna Saley Sidibé
Adjudicator