Licence Appeal Tribunal File Number: 24-011955/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:
Charbel Daoud
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Georgiana Masgras, Counsel
Mobina Khan, Counsel
For the Respondent:
Julianne Brimfield, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Charbel Daoud, the applicant, was involved in an automobile accident on May 17, 2020, 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 $1,596.50 for physiotherapy services, proposed by Northview Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted November 3, 2023, and denied November 7, 2023?
iii. Is the applicant entitled to $3,179.08 for physiotherapy services, proposed by Mavis Eglinton in a plan submitted April 11, 2024, and denied April 25, 2024?
iv. Is the applicant entitled to $2,825.00 for an Income Replacement Benefit (“IRB”) report, proposed by Gurlals Gill in a plan submitted May 21, 2024, and denied May 29, 2024?
v. Is the applicant entitled to $4,011.50 for a psychological assessment, proposed by Meditecs Independent Medical Assessments in a plan submitted August 24, 2024, and denied September 9, 2024?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
4Since the applicant is subject to the MIG, assessment of whether the treatment plans are reasonable and necessary is not warranted.
5The applicant is not entitled to $2,825.00 for an IRB report, or to interest.
ANALYSIS
The applicant’s injuries are predominantly minor
6I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
7Section 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.”
8An 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.
Minor Injury
9The applicant submits that he suffers from both physical injuries as a result of the accident and requires continuing treatment to bring him back to good health. The applicant submits that his medical evidence supports severe, persistent, ongoing symptoms and the necessity for extensive physical therapy. He argues that the substantial and enduring impact on his life justifies removal from the MIG. The respondent argues that the applicant’s submissions are unsupported by evidence and that he has not met his burden to establish an injury outside the MIG.
10I find that the applicant’s submissions do not lead evidence that warrants removal from the MIG. Section 3(1) of the Schedule focuses on the nature of the injury, not on the degree of impairment that flowed from that injury. The applicant only provided very general submissions without connecting medical evidence to his argument. Since the applicant’s submissions refer to some evidence, I have reviewed it in the context of removal from the MIG.
11The applicant refers to the clinical notes and records (“CNRs”) of Douglas Vlaskamp, chiropractor, dated November 2, 2020 and November 20, 2023. The applicant submits that these CNRs identify a shoulder girdle strain and “conditions like bicipital tendonitis, bursitis, supraspinatus tendonitis, Whiplash-Associated Disorder Grade II (WAD II), and lumbar strain.” I find that these conditions are within the definition of a minor injury.
12The applicant also refers to the CNRs from Mavis Eglinton Physiotherapy dated April 9, 2024. The applicant submits that these CNRs reference cracking sounds in the shoulder joint, as well as neck, shoulder, and hip pain causing discomfort and functional limitations in his daily activities. The applicant similarly has not directed me to any caselaw supporting that these conditions warrant removal from the MIG. I find that these conditions are within the definition of a minor injury, and the applicant has not led evidence as to any particulars regarding the applicant’s pain or functional limitations beyond a general reference. The applicant is not arguing for removal from the MIG on the basis of chronic pain with a functional impairment.
Concussion and Psychological Symptoms
13The applicant’s submissions refer to a concussion and to psychological symptoms warranting removal from the MIG. The respondent argues that the applicant references an OCF-18 completed by a physiotherapist who does not have the qualifications to diagnose a concussion or a psychological condition that may warrant removal from the MIG. I find, as the respondent argues, that the applicant has not referred to any diagnosis of concussion or psychological condition in the medical records by a qualified practitioner, and that he has not led any corroborating or contemporaneous evidence in support of his position.
Section 38(11)
14The applicant also argues that the denial letters were deficient under s. 38(8) of the Schedule for not adequately providing medical and other reasons denying the proposed treatment plans. Under s. 38(11) of the Schedule, the respondent is prohibited from taking the position that the applicant has an impairment to which the MIG applies if the denials were deficient under s. 38(8). The applicant’s submissions do not directly argue that any of the plans are payable under s. 38(11). I find that the applicant did not lead any evidence as to which notice is deficient and why, except for the general argument.
15The respondent submits that the applicant’s position on deficient denial letters is without merit. The respondent argues that the applicant has not referred to any notice that he alleges is deficient beyond making the general argument. I agree with the respondent that the applicant did not lead evidence or make any specific argument with particulars as to a deficient notice. In any case, I note that s. 38(11) does not operate to permanently remove an insured from being subject to the MIG as the applicant’s argument suggests: see: Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707.
16For these reasons, on a balance of probabilities, I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
17Since the applicant is subject to the MIG, assessment of whether the treatment plans are reasonable and necessary is not warranted.
$2,825.00 for an IRB report by Gurlals Gill
18I find that the applicant is not entitled to $2,825.00 for an IRB report.
19The applicant makes two principal arguments relating to this dispute. First, he argues that the report is reasonable and necessary for the purpose of determining the quantum of IRB under s. 7(4)(3) of the Schedule, and he is therefore entitled to $2,825.00. Second, he argues that he is entitled to an IRB of $2,825.00 per month from May 21, 2024 and ongoing. Although the issue framed by the parties at the case conference refers to a plan proposing this report, the applicant did not refer me to any such plan. Rather, it appears from the denial notice dated May 29, 2024 that the applicant sought entitlement by way of an invoice.
20As to the first argument, the report is dated April 16, 2024, and it estimates a pre-104-week IRB payment for the period August 1, 2020 (after one-week grace period) to July 31, 2022 at $0 per week. I note that the respondent refers me to a notice dated February 11, 2021 which confirms receipt of a Disability Certificate (OCF-3) dated October 24, 2020 confirming the applicant no longer meets the eligibility requirements of an IRB. Therefore, the evidence establishes the relevant period for which the applicant applied for an IRB is approximately 12 weeks. The applicant’s IRB report indicates that the policy limit for the IRB is $400.00 per week. Accordingly, the applicant effectively applied for approximately $4,800.00 in IRB and the report found a nil quantum was payable. The reasonableness and necessity of this $2,825.00 is highly questionable.
21The applicant does not make any specific arguments or lead evidence that the report is reasonable and necessary under s. 7(4)(3) of the Schedule. The applicant did not address the findings in the report, including the applicant’s post-accident income. Under the circumstances, I find that the IRB report almost four years post-accident establishing that the IRB quantum is nil due to the applicant’s post-accident income is not reasonable and necessary.
22As to the second argument, the respondent correctly argues that the issue of entitlement or quantum of an IRB in the amount of $2,825.00 per month is not a disputed issue before me. The parties had an opportunity to frame the issues in dispute at the case conference, and this issue is not listed in the Case Conference Report and Order. The applicant does not address this; however, the respondent submits that an issue relating to IRB was withdrawn by the applicant because it was time barred. In any case, it is not an issue at this hearing. Lastly, it is questionable what the foundation is for the applicant arguing for anything more than $400.00 a week, a policy limit identified by the applicant’s evidence.
23For the reasons above, on a balance of probabilities, I find that the applicant is not entitled to $2,825.00 for an IRB report.
Interest
24The applicant is not entitled to interest because there are no overdue benefits to which it applies pursuant to s. 51 of the Schedule. The applicant’s argument requesting exercise of discretion under section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43 does not apply to this dispute.
ORDER
25For the reasons above, I make the following orders:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
ii. Since the applicant is subject to the MIG, assessment of whether the treatment plans are reasonable and necessary is not warranted.
iii. The applicant is not entitled to $2,825.00 for an IRB report, or to interest.
Released: April 16, 2026
__________________________
Amar Mohammed
Adjudicator