Alhaj v. Co-operators General Insurance Company, 2026 CanLII 31462

Citation: Alhaj v. Co-operators General Insurance Company, 2026 CanLII 31462

Licence Appeal Tribunal File Number: 24-009881/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:

Fadi Sattouf Alhaj Applicant

and

Co-operators General Insurance Company Respondent

DECISION

VICE-CHAIR: Henry Harris

APPEARANCES:

For the Applicant: Mobina Khan, Counsel For the Respondent: Bruce Keay, Counsel

HEARD: By way of written submissions

OVERVIEW

1Fadi Sattouf Alhaj (the “applicant”) was involved in an automobile accident on May 18, 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 Co-operators General Insurance Company (the “respondent”) 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 a non-earner benefit (“NEB”) of $185.00 per week from June 15, 2023 to June 15, 2025?

iii. Is the applicant entitled to the assessments proposed by Oxford Spine Center, as follows:

a. $2,198.00 for chiropractic services, in a treatment plan/OCF-18 (“plan”) dated May 24, 2023;

b. $5,080.00 for chiropractic services, in a plan dated November 24, 2023?

c. $2,198.00 for chiropractic services, in a plan dated July 4, 2023? and

d. $5,192.00 for chiropractic services, in a plan dated July 12, 2024?

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?

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

3For issue ii. above regarding NEB, the case conference report and order dated December 19, 2024 indicates the period in dispute as June 15, 2023 to ongoing. However, I have updated to include the correct end date in accordance with s. 12(3)(c) of the Schedule as set out above.

RESULT

4The applicant remains subject to the MIG.

5As the applicant remains in the MIG, there is no need to consider if any of the plans in dispute are reasonable and necessary.

6The disputed plans are not payable pursuant to s. 38(11) of the Schedule.

7The applicant is not entitled to an NEB of $185.00 per week from June 15, 2023 to June 15, 2025, interest or an award.

8The application is dismissed.

ANALYSIS

The applicant remains within the Minor Injury Guideline (MIG)

9I find that the applicant has not established on a balance of probabilities that he suffers from an accident-related injury or condition that warrants removal from the MIG.

10Section 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.”

11An 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 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.

12In all cases, the burden of proof lies with the applicant.

13The applicant’s submissions respecting the MIG focus on his argument that the respondent’s denial notices for the plans in dispute did not comply with s. 38(8) of the Schedule and that the applicant should be removed from the MIG pursuant to s. 38(11). The applicant further submits that his combined physical and psychological impairments constitute a “major injury”, and do not fall within the MIG.

Section 38 MIG argument

14The applicant submits that he should be removed from the MIG pursuant to s. 38(11), as the respondent’s denial notices for the plans in dispute did not comply with s. 38(8).

15The respondent counters that s. 38(11) only provides an escape from the MIG for a treatment plan that is the subject of a non-compliant denial notice. It does not remove the entire claim from the MIG in respect of other potential claims. The respondent relies on the Ontario Divisional Court case of Zheng, Cia v. Aviva Insurance, 2018 ONSC 5707 (“Zheng”).

16I agree with the respondent on the effect of s. 38(11). As noted in Zheng, a letter denying a treatment plan that does not comply with s. 38(8) of the Schedule affects the applicant’s MIG designation with respect to that treatment plan until a compliant notice is given. It does not remove the applicant from the MIG on a permanent basis or with respect to other disputed benefits. Therefore, I find that the applicant is not removed from the MIG on the basis of s. 38(11). I will consider the applicant’s s. 38 argument when I review his entitlement to the plans in dispute.

Physical injuries

17I find that the applicant has not proven that he has an accident-related physical injury that warrants removal from the MIG.

18The applicant submits that his accident-related injuries are severe and complex, have had an impact on his life, and fall outside of the MIG. He refers to injuries such as post-concussion syndrome, intervertebral disc disorders, and complex sprains and strains of the cervical, thoracic, and shoulder regions, as falling outside the MIG’s scope. However, the applicant has not pointed me to medical evidence which establishes that these injuries occurred.

19I was not referred to evidence of the applicant being diagnosed with post-concussion syndrome. I note that in the OCF-18s in dispute, Dr. Jamal Alaloul, chiropractor, lists concussion as one of the complaints, injuries and sequelae at Part 6. In Ontario, only three types of practitioners are regulated to make a diagnosis of concussion: a physician, nurse practitioner or neuropsychologist. I do not have evidence before me suggesting that Dr. Alaloul, a chiropractor, falls into any of these categories. Further, it is well settled that an OCF-18 alone is not evidence of a diagnosis. For these reasons, I find that the applicant has not established that he suffered from a concussion as a result of the accident. Without a concussion diagnosis, I am not persuaded by the applicant’s references to post-concussion syndrome, symptoms or complaints as they may relate to removal from the MIG.

20Similarly, I was not referred to any evidence of the applicant being diagnosed with intervertebral disc disorders.

21The clinical notes and records (“CNRs”) of Dr. Rasheedah Aina Aderinto, the applicant’s family physician, document the first post-accident visit on June 12, 2023, approximately one month after the accident. The applicant reported he was dizzy at the time of the accident and has pain in the back of his head and left shoulder, but feels better now. Dr. Aderinto did not make any diagnoses and noted the examination was normal.

22I find that the test for removal from the MIG does not distinguish between sprains and strains of the spine and shoulder that are complex in contrast to those that are not complex, as the applicant suggests. The applicant did not refer me to any authority for his interpretation, nor for his position that his combined physical and psychological impairments constitute a “major injury” resulting in chronic impairments. I am not persuaded by this argument because I find that these terms are not explicitly found in the Schedule. Further, while a complete tear would be a basis for removal from the MIG, there was no argument or evidence presented that the applicant sustained such an injury.

23I find that the sprains and strains of the spine that the applicant refers to falls squarely within the s. 3 definition of a minor injury and therefore fall within the MIG. This is also supported by the May 27, 2023 OCF-3 Disability Certificate of Dr. Tobias Chung, chiropractor, which listed sprain, strain and pain in the neck and back, as well as right shoulder. However, the CNRs of Dr. Aderinto approximately two weeks later lists left shoulder pain, rather than right side, which creates uncertainty in identifying the accident-related injuries.

24The applicant also submits that s. 4 of the Schedule explicitly excludes injuries from the MIG if they involve significant impairment or require extensive medical treatment. I disagree. Section 4 relates to a specified benefit, specifically an income replacement benefit, which is unrelated to the MIG. The applicant did not refer me to any authority in support of his interpretation of s. 4.

25Finally, the applicant submits that his medical history includes significant prior surgeries on the left arm in 2009, which indicates a pre-existing vulnerability. However, he did not point me to evidence of such medical history, nor did he explain he satisfies the test under s. 18(2) for a documented pre-existing condition that would prevent maximal recovery from a minor injury if kept within the MIG.

26For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that his accident-related physical injuries warrant his removal from the MIG.

Psychological condition

27I find that the applicant has not proven that he has a psychological condition due to the accident that warrants removal from the MIG.

28In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. Psychological impairment is not included in the minor injury definition. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”

29The applicant submits that his accident-related injuries include a psychological condition of depressive disorder. He relies on the CNRs of Dr. Aderinto on May 27, 2024 and December 12, 2024.

30The respondent submits that the applicant has not established that he has any psychological injuries connected to the accident. The respondent submits that any complaints the applicant may have made of psychological injuries come more than a year after the accident without any link or connection to the subject accident.

31I find that the CNRs of Dr. Aderinto relating to the applicant’s depression do not refer to the accident and are noted more than one year post-accident. In the absence of evidence connecting a psychological condition to the accident, I find the applicant has not met his onus.

32Accordingly, I find that the applicant has not proven on a balance of probabilities that he sustained a psychological condition due to the accident that warrants removal from the MIG. Therefore, I find that the applicant remains subject to the MIG.

33As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.

34The applicant also argued that the disputed plans are payable under s. 38 of the Schedule. I will now consider this argument.

Section 38 and the treatment plan denials

35I find that the applicant has not proven on a balance of probabilities that the respondent did not comply with the s. 38 requirements in its denials of the plans in dispute.

36Section 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.

37There are four plans in dispute. The applicant raised the issue that the denials for these plans were not in compliance with s. 38(8). His general argument is that the denial notices do not provide sufficient medical reasons as to why it denied the treatment plans.

38The respondent submits that its denials of the plans were compliant with s. 38(8).

39I have reviewed the denial notices provided by the respondent, dated June 14, 2023, July 18, 2023, December 15, 2023 and July 24, 2024. The denials identify the plans that the respondent does not agree to pay for. The denials indicate that, based on medical information provided to-date, the respondent’s position is that the accident-related impairments are minor in nature, and that it believes the MIG applies to such impairments. Further, the denials advise the applicant to provide supporting information if he believes his injuries fall outside of the MIG. The denials also request further specific information, such as records from the hospital, family doctor, specialists and treating health practitioners, to support ongoing accident-related impairments. In addition, the denials indicate that the respondent can provide an authorization form to the respondent so that it can request such information directly from the applicant’s health practitioner.

40I find that the respondent’s denial notices comply with the requirements of s. 38(8) because it identifies the treatment plans that it does not agree to pay for, and identifies the MIG as a medical reason for the denial. Further, it notes the determination is based on information provided to-date, and requests additional supporting medical information from the applicant. I find the denial notices are clear and unequivocal denials, sufficiently detailed and understandable for an unsophisticated person to decide whether to dispute the denial.

41As I have found that the denial notices are compliant with s. 38(8), the plans in dispute are not payable under s. 38(11).

The applicant is not entitled to an NEB

42I find the applicant has not established entitlement to an NEB of $185.00 per week from June 15, 2023 to June 15, 2025.

43Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391 (“Heath”), which focusses on a comparison of the applicant’s pre- and post-accident activities.

44The applicant submits that he appears to meet the test for NEB as he is hindered by significant loss of enjoyment of life and inability to carry out pre-accident responsibilities.

45The respondent counters that the applicant has not met his onus to prove that he is entitled to an NEB, as he has failed to produce sufficient evidence to support that he suffers from a complete inability to carry on a normal life as a result of the accident.

46The applicant makes general submissions that he has a wide range of physical impairments which include “no range of motion in his left shoulder and leg, reliance on assistance for transfers and stairs, and an inability to independently perform daily activities of daily living”. He also reports ongoing anxiety and depression, further affecting his overall functioning. However, the applicant has not directed me to any evidence in support of these claims.

47Further, the applicant has not directed me to evidence of his pre-accident function, or activities he values but cannot perform due to his accident-related injuries. No evidence was led to establish the applicant’s normal activities before and subsequent to the subject accident, and how any difference in those activities means that he is continuously prevented from engaging in substantially all such activities.

48On the evidence before me, I am unable to engage in the analysis required by Heath to determine if the applicant suffers from a complete inability to carry on a normal life. The applicant has not pointed me to details of their pre-accident activities or demonstrated how their participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to the applicant, how they were prevented from engaging in the activities they normally engaged in pre-accident or evidence of the frequency and time commitments of her pre-accident activities. In the absence of this information, it is not possible to compare the applicant’s pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.

49For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from a complete inability to carry on a normal life as a result of his accident-related injuries. Accordingly, the applicant is not entitled to an NEB of $185.00 per week from June 15, 2023 to June 15, 2025.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.

Award

51The 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.

52As the respondent did not unreasonably withhold or delay payment of benefits, no award is payable. In addition, other than a general statement that the respondent’s actions were unjustified and caused financial hardship, the applicant made no submissions on why it should be granted an award.

ORDER

53For the reasons outlined above, I find that:

i. The applicant shall remain in the MIG;

ii. As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary;

iii. The disputed plans are not payable pursuant to s. 38(11) of the Schedule;

iv. The applicant is not entitled to an NEB of $185.00 per week from June 15, 2023 to June 15, 2025, interest or an award; and

v. The application is dismissed.