Licence Appeal Tribunal File Number: 24-012114/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:
Omar Ahmed
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Ardi Deti, Paralegal
For the Respondent: Lisa Armstrong, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Omar Ahmed, the applicant, was involved in an automobile accident on February 5, 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, Co-operators General 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 $3,239.70 for an orthopaedic assessment, proposed by Mississauga Rehab and Sports Injury Clinic in a treatment plan/OCF-18 (“plan”) submitted January 3, 2023, and denied January 6, 2023?
iii. Is the applicant entitled to $15,296.73 for a chronic pain program, proposed by Mississauga Rehab and Sports Injury Clinic in a plan submitted March 27, 2023, and denied March 28, 2023?
iv. Is the applicant entitled to $3,098.00 for physical therapy services, proposed by Oxford Spine Centre in a plan submitted June 15, 2023, and denied June 16, 2023?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant injuries are more than minor, and he is removed from the MIG.
4The applicant is entitled to a partial payable orthopaedic assessment not exceeding $2000 plus HST, once incurred.
5The applicant is entitled to the plan for $15,296.73 for the chronic pain program once incurred.
6The applicant is not entitled to the $3,098.00 for physical therapy services.
7Interest is awarded on the payable treatment plans.
8The respondent is not liable to pay for an award.
ANALYSIS
Minor Injury Guideline (MIG)
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are 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.”
10An 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. In all cases, the burden of proof lies with the applicant.
11Here, the applicant submits that he should be removed from the MIG on the basis of chronic pain.
The applicant suffers from a chronic pain impairment.
12I find the applicant does suffer from a chronic pain impairment justifying removal from the MIG.
13The applicant relies on the clinical notes and records (“CNRs”) from family physician, Dr. E. AlShami, M.D., in regard to his lower back pain from the accident. Also, the applicant relies on a report from s. 25 assessor Dr. Ogilvie-Harris, Orthopedist, dated February 19, 2023, and the three disputed OCF-18’s for an orthopaedic assessment, a chronic pain program and physical therapy.
14The applicant states he spoke with his family physician, Dr. AlShami, over the phone on February 7, 2022. He did not seek medical attention in-person. Dr. Al Shami prescribed Naproxen on February 7, 2022, for his back pain.
15The CNRs of Dr. AlShami reveal throughout the years of 2022, 2023 and 2024, the applicant continued to experience pain affecting his back, neck and was experiencing sleep issues due to the pain. The applicant states that he attempted to resume his employment, but his functional capacity remained impaired. The applicant states that his pain has affected his marriage, personal life, relationships, and his ability to do household and recreational activities.
16The applicant states that he saw Dr. Ogilvie-Harris, Orthopedist, for an assessment and relies on his report dated February 19, 2023. The results of the three disability questionnaires administered were the Pain Disability Questionnaire, where the applicant scored on the severe side, the World Health Organization Disability Assessment, where the applicant scored below the 5th percentile, and the Central Sensitization Inventory, where the applicant was in the extreme level. Dr. Ogilvie- Harris in his report stated that the applicant now has developed Chronic Pain Syndrome as defined in the American Medical Association Guides (“AMA Guides”) stating that the pain has been present for more than 3 months. Dr. Ogilvie-Harris indicates that the individual’s pain is persistent and disruptive, interfering with all aspects of daily activity, and that it is more severe and complex than pain caused by a musculoskeletal injury alone.
17The applicant also argues that he meets three of the six criteria for chronic pain in the AMA Guides.
18The Guides are not incorporated into the Schedule, but the Tribunal has found them to be a useful analytical tool for evaluating chronic pain claims in the absence of a diagnosis. The AMA Guides require three of the below criteria to be met for a diagnosis of chronic pain:
i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii) Excessive dependence on health care providers, spouse, or family.
iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv) Withdrawal from social milieu, including work, recreation, or other social contacts.
v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational need; and
vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
19The applicant argues that he meets three or more criteria for chronic pain syndrome, namely, physical deconditioning, social withdrawal, and psychosocial sequelae.
20The applicant also relies on the CNRs of Dr. A. Ali, of Mackenzie Clinic, who indicates that the applicant has ongoing pain and an inability to return to his pre accident activities despite standard conservative measures.
21The respondent submits that the applicant must prove his onus on the balance of probabilities that his injuries warrant treatment beyond the MIG. The respondent argues that the applicant has not proven that the injuries suffered in relation to the accident are more than minor in nature.
22I find that the February 19, 2023, Orthopaedic report from Dr. Ogilvie‑Harris deserves some weight in this case. Even though the assessment was done virtually and did not include an in‑person physical exam, I find these limits do not take away from its value. The tests Dr. Ogilvie‑Harris used, and his medical reasoning are persuasive evidence of chronic pain, especially when I look at them together with the clinic notes and records from the family doctor, Dr. AlShami.
23Dr. Ogilvie‑Harris used three common tests that help show how much pain a person has and how it affects their life. On the Pain Disability Questionnaire (PDQ), the applicant scored in the severe range. This means his pain makes it hard for him to do normal daily tasks. On the World Health Organization Disability Assessment (WHODAS), he scored below the 5th percentile, which means he has trouble in many areas such as moving around, taking care of himself, doing daily activities, and taking part in social life. On the Central Sensitization Inventory (CSI), he scored in the extreme range. This score shows that the applicant’s body may be reacting to pain more strongly than expected, and the pain is greater than what would normally come from a simple minor injury.
24When I look at these test results together with the applicant’s medical history, I see a clear pattern. The applicant has had pain for more than a year post -accident, trouble sleeping, and problems doing normal activities at work, at home, and in recreation. Based on all this, the assessor said that the applicant meets the criteria of Chronic Pain Syndrome described in the AMA Guides. In this case, Dr. Ogilvie-Harris detailed how long the pain has lasted, how much it affects the applicant’s life, and how it limits what he can do. These are important factors in deciding that his injuries are not mainly minor and that his pain has caused him functional limitations.
25Further, Dr. Dr. Ogilvie- Harris’s conclusion is consistent with the CNRs of Dr. AlShami which document persistent pain and failure to restore pre‑accident function despite conservative measures from early 2022 through 2024. The CNRs of Dr. AlShami reveal throughout the years of 2022, 2023 and 2024, that the applicant continued to experience pain affecting his back, neck, and sleep issue due to the pain. The applicant states that he attempted to resume his employment, but his functional capacity remained impaired. The applicant states that his pain has affected his marriage, personal life, relationships, and his ability to do household and recreational activities.
26I find that this consistency corroborates Dr. Ogilvie-Harris’s opinion and reduces the risk that the standardized measures merely captured a transient or atypical presentation.
27I acknowledge the respondent’s concern that the absence of an in‑person physical exam and validity testing may reduce reliability and that it did not receive Dr. Ogilvie-Harris’s report until after the denial letters were provided. However, in my view, Dr. Ogilvie-Harris’s report is corroborated by the objective medical evidence, including the CNRs of the family doctor. I am satisfied that the orthopaedic assessor’s opinion credibly confirms that the accident‑related injuries have progressed to a chronic pain syndrome and that the applicant has some functional impairment as a result of this pain. This constitutes a clinically associated condition that removes the applicant from the MIG.
28In summary, I find that on the totality of evidence and on a balance of probabilities, that the applicant’s impairments are not predominantly minor and that chronic pain syndrome is present and he is removed from the MIG.
Has the respondent complied with s. 38(8) of the Schedule?
29I find that the respondent has compiled with s. 38(8) of the Schedule in all three EOB’s dated January 6, 2023, March 28, 22023, and June 16, 2023.
30In terms of the sufficiency of the Explanation of Benefits (EOB) the applicant argues that the denial notices issued by the respondent do not comply with the requirements of section 38(8) of the Schedule.
31Section 38(8) requires an insurer to inform an insured person, within ten 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.
32The respondent asserts that the denials are complaint with the Schedule. The respondent argues that it is sufficient for the denials to say that the applicant’s injuries fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent points out the applicant submitted the disputed OCF-18s without corroborating evidence to support his claim. As a result of the limited amount of medical documentation provided by the applicant, the respondent submits that its medical reasons were sufficient. I agree.
33The Tribunal has addressed sufficiency of notices in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT). In her decision, Executive Chair Lamoureux states, at paragraph 19: […] an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. An insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.”
34The applicant argues that the January 6, 2023, EOB for an orthopaedic assessment is not compliant with s. 38(8). The EOB states: “Upon review of the Treatment and Assessment Plan, we are unable to consider the proposed services. As previously advised your impairment is treatable within the Minor Injury Guideline and your insurer has already approved up to the limit of $3,500.00.”
35I find that the EOB identifies the treatment plan of $3,239.70 for an orthopaedic assessment dated January 3, 2023, and advises that the insurer does not agree to pay for it. It provides a medical reason in stating that the insurer has assessed this case as treatable within the MIG pursuant to s. 38(9). It further advised that the insurer requires medical records from the family doctor for the injuries sustained in the accident. The tribunal has referred to the case in Zeitoun v Royal & Sun Alliance, 2020 CanLII 103701 (ON LAT), which states (at para 35), “ I do not agree that citing the MIG in a denial fails to provide “medical reasons and all of the other reasons” for the determination as required by s. 38(8). For each of the treatment plans in dispute, the respondent explained that it had determined that M.Z. had sustained a minor injury to which the Minor Injury Guideline applies.”
36This reason satisfies the requirement, well-established in the Tribunal’s jurisprudence, that insurers provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond to. I find that the insurer gave a clear and unequivocal denial that the applicant can understand. I find that the respondent is compliant with s.38(8).
37The March 28, 2023 EOB of the plan for $15,296.73 for a chronic pain program, states, “On March 8, 2023, we requested for you to provide us with relevant documentation from your family doctor, all walk in clinics that you attend, … to date we have received partial documentation from your family doctor E. Alshami consisting of your complaint about your back pain, neurological remarkable ... Please provide us medical records from your family doctor from February 2022 to the present time.”
38I find in this EOB that the respondent does comply with s. 38(8) of the Schedule. I find that the insurer specifically identified the documentation they need from the family doctor and also gave a deadline of March 8, 2023, to comply. I find that the respondent is compliant with s.38(8) of the Schedule.
39The EOB dated June 16, 2023, [relating to which OCF-18?] states that: “The insurer received partial documentation from your family physician from 2017 to February 2022. Please provide us with updated medical information from your family doctor from February 2022 to the present time in order for the insurer to review. “
40I find that the EOB identifies the treatment plan for $3,098.00 for physical therapy services dated June 15, 2023, and advises that the insurer does not agree to pay for it. The EOB specifically identifies the medical records from his family doctor from February 2022 to the present time, as documentation that it does not have, but still requires. This satisfies the requirement that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond to. I find that the respondent is compliant with s.38(8).
41To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
Is the plan for $3,239.70 for an orthopaedic assessment, proposed by Mississauga Rehab and Sports Injury Clinic, reasonable and necessary?
42I find that the above treatment plan is reasonable and necessary.
43The applicant submits that the orthopaedic assessment is required based on Dr. Ogilvie- Harris’s three self questionnaires that were administered virtually. The Pain Disability Questionnaire (PDQ), the applicant scored in the severe range. This means his pain makes it hard for him to do normal daily tasks. On the World Health Organization Disability Assessment (WHODAS), he scored below the 5th percentile, which means he has trouble in many areas such as moving around, taking care of himself, doing daily activities, and taking part in social life. On the Central Sensitization Inventory (CSI), he scored in the extreme range. This score shows that the applicant’s body may be reacting to pain more strongly than expected, and the pain is greater than what would normally come from a simple minor injury.
44The respondent suggests the plan is not reasonable and necessary because it goes beyond the $ 2,000 threshold under s. 25(5) of the Schedule.
45I find that the applicant is entitled for the assessment for an orthopaedic assessment. The evidence shows that the applicant through the testing on the PDQ questionnaire is in the severe range and on the WHODAS, the applicant scored below the 5th percentile, and the CSI, he scored in the extreme range. The assessment was virtual and did not include a physical examination, however, in my view, Dr. Ogilvie-Harris’ report is corroborated by the objective medical evidence, including the CNRs of the family doctor. I am satisfied that the orthopaedic assessor’s opinion credibly confirms that the accident‑related injuries have progressed to a chronic pain syndrome.
46However, Section 25(5) of the Schedule reads: Despite any other provision of this Regulation, an insurer shall not pay,
(a) more than a total of $2,000 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it, whether it is conducted at the instance of the insured person or the insurer;
or
(b) any amount in respect of fees for preparing a future care plan, a life care plan, or a similar plan or for any assessment or examination conducted in connection with the preparation of the plan. O. Reg. 34/10, s. 25 (5); O. Reg. 289/10, s. 4; O. Reg. 123/19, s. 4.
47As a result, I find on a balance of probabilities that an orthopaedic assessment is reasonable and necessary up to the Statutory limit of $ 2000 plus HST.
Is the plan for $15,296.73 for a chronic pain program reasonable and necessary?
48The onus is on the applicant to establish, on a balance of probabilities, that the treatment plan for a chronic pain program in the amount of $15,296.73 is reasonable and necessary under the Schedule. I find that the applicant has met this burden.
49The applicant submits that the chronic pain program was recommended by Dr. Ogilvie-Harris is consistent with contemporary pain management principles, including those endorsed by the Canadian Pain Task Force. The applicant states that his pain has persisted well beyond the expected recovery period for minor injuries and has been consistently documented as disabling.
50The respondent argues that the treatment plan is not reasonable and necessary. It submits that the existence of a treatment plan alone is insufficient to meet the applicant’s burden and that there must be contemporaneous, corroborating medical evidence to support both the diagnosis and the proposed treatment.
51I find that the applicant has been experiencing ongoing pain for more than one year following the accident. Earlier in this decision, I found that the applicant suffers from chronic pain and that his impairments do not fall within the Minor Injury Guideline.
52Accordingly, Dr. Ogilvie-Harris, an orthopaedic specialist, assessed the applicant using three commonly accepted pain‑related outcome measures that assess pain severity, functional interference, and impact on daily living. The applicant scored at the severe end of all three scales. These results demonstrate significant pain affecting mobility, sleep, work capacity, and activities of daily living.
53The applicant’s family physician, Dr. AlShami, provided clinical notes spanning from 2022 to 2024. These records consistently document ongoing pain, sleep disturbance, and functional limitations affecting the applicant’s home life, employment, and personal activities. The notes also confirm that the applicant has attempted more conservative treatments, which have not resulted in sustained improvement.
54The proposed chronic pain program is multidisciplinary in nature and includes physical reconditioning, pain education, and functional rehabilitation. Such programs are widely recognized as appropriate treatment for individuals with persistent pain who have not responded adequately to simpler or passive modalities.
55The respondent submits that the plan should not be approved because the orthopaedic assessment was conducted virtually and because of the timing of the report’s receipt. I am not persuaded by this argument. The findings of Dr. Ogilvie-Harris are corroborated by the longitudinal medical records of the family physician, which independently document the same complaints, functional impairments, and chronicity of symptoms.
56I am satisfied that the medical evidence establishes that the applicant continues to suffer from accident‑related chronic pain, that previous treatments have been insufficient, and that a more comprehensive, multidisciplinary approach is warranted.
57For these reasons, on a balance of probabilities I find that the treatment plan for a chronic pain program in the amount of $15,296.73 is reasonable and necessary under the Schedule.
Is the plan for $3,098.00 for physical therapy services reasonable and necessary?
58I find that the plan is not reasonable and necessary.
59The applicant submits that the plan proposes continued physical therapy to address ongoing impairments following the accident and in light of the diagnosis of chronic pain.
60The respondent submits that the plan is not reasonable and necessary. The Respondent argues that the mere existence of a treatment plan is insufficient to discharge the applicant’s burden of proof and that there must be contemporaneous, corroborating medical evidence to support both the need for continued physical therapy and the anticipated benefit of the proposed treatment.
61I find that I accept that the applicant has experienced long‑lasting pain following the accident. Earlier in this decision, I found that the applicant’s condition has evolved into chronic pain and that his impairments are no longer minor.
62However, a finding of chronic pain does not automatically render all proposed treatment reasonable and necessary. The applicant must still demonstrate, through persuasive medical evidence, that the specific treatment proposed is appropriate, proportionate, and likely to result in meaningful functional improvement.
63The applicant relies primarily on family physician clinical notes from 2022 to 2024, which document ongoing pain complaints, sleep disturbance, and difficulty with daily activities. While these records confirm the persistence of symptoms, they do not recommend or specifically support a further course of structured physical therapy at the level proposed in this plan.
64The evidence also shows that the applicant has participated in physical‑based treatments in the past. The current plan does not explain why additional physical therapy is necessary at this time, what measurable goals are expected to be achieved, or how this plan differs in substance or approach from prior therapies that have not resulted in sustained improvement.
65Accordingly, I am not satisfied that the proposed physical therapy represents a necessary or proportionate escalation of care. The treatment plan does not provide sufficient clinical rationale demonstrating that continued passive or clinic‑based physical therapy is likely to significantly improve function beyond what could be achieved through ongoing self‑management, home exercise, or other less resource‑intensive strategies.
66While I accept that the applicant continues to experience accident‑related chronic pain, the medical evidence before me does not establish that the proposed physical therapy services in the amount of $3,098.00 are reasonable and necessary within the meaning of the Schedule. Accordingly, on a balance of probabilities, I find that the treatment plan is not reasonable and necessary.
Interest
67Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable on the awarded plans.
Award
68The applicant sought an award under s. 10 of Reg. 664 because the respondent failed to provide the necessary medical reasons for denying the disputed OCF-18s. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that the insurer unreasonably withheld or delayed the payment of benefits. I find in this case that the respondent has not unreasonable withheld or delayed any benefits to the applicant.
ORDER
69I find on the totality of the evidence that:
i. The applicant injuries are more than minor, and he is removed from the MIG.
ii. The applicant is entitled to a partial payable orthopaedic assessment not exceeding $2000 plus HST, once incurred.
iii. The applicant is entitled to the plan for $15,296.73 for the chronic pain program once incurred.
iv. The applicant is not entitled to the $3,098.00 for physical therapy services.
v. Interest is awarded under s. 51 of the Schedule. Interest is awarded on the payable treatment plans.
vi. The respondent is not liable to pay for an award.
Released: April 2, 2026
__________________________
Roderick Walker
Adjudicator