Licence Appeal Tribunal File Number: 24-012285/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:
Jack Nelson
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Kim Mohammed Sieudhan, Counsel
For the Respondent:
Robbie Brar, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Jack Nelson, the applicant, was involved in an automobile accident on August 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, 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 a non-earner benefit (“NEB”) of $185.00 per week from August 10, 2022, ongoing?
iii. Is the applicant entitled to the assessments proposed by Alma Rehab, as follows:
a) $307.58 for chiropractic services, in a treatment plan/OCF-18 (“plan”) submitted October 27, 2022;
b) $1,995.33 for psychological treatment and assessment, in a plan submitted November 11, 2022;
c) $3,244.58 for chiropractic services, in a plan submitted March 1, 2023; and
d) $2,912.56 for chiropractic services, in a plan submitted May 10, 2023; and
e) $2,580.54 for chiropractic services, in a plan submitted July 7, 2023?
iv. Is the applicant entitled to $2,397.75 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre Inc. in a plan submitted July 21, 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?
3The respondent states that $496.00 still remains within the MIG limit.
RESULT
4For the reasons below, I find that:
a) The applicant’s injuries remain within the MIG; therefore, the MIG’s monetary limit applies.
b) Because the applicant remains within the MIG, I do not need to assess the reasonableness of the disputed treatment plans beyond the MIG limits.
c) The applicant has not met his onus to establish entitlement to NEB of $185.00 per week from August 10, 2022, ongoing.
d) 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(1) of the Schedule and that the MIG applies.
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 contends that he should be removed from the MIG because he suffers from chronic pain and pre-existing conditions that have been worsened by the accident.
Chronic pain
9I find that the applicant has not established that he suffers from an accident‑related chronic pain condition with resulting functional impairment to remove him from the MIG.
10The applicant relies on the August 10, 2022, OCF‑3, Dr. John Toman, the applicant’s family doctor’s clinical notes and records (“CNRs”), the Alma Rehab treatment records, and March 7, 2023, diagnostic imaging. He argues that the MRI findings of degenerative changes and neuroforaminal narrowing, along with ongoing pain complaints and use of Tylenol 3, demonstrate that his impairments are not minor.
11The respondent contends that the applicant sustained uncomplicated soft tissue injuries within the MIG. It mainly depends on the physician's Section 44 reports by Dr. Ijaz Chaudhry, the OT in-home assessment report by Harish Sharma, an occupational therapist, and the psychological assessment report by Dr. Douglas Saunders, a psychologist.
12The earliest evidence after the accident includes the OCF-3 completed by chiropractor Osoba Bohdan on August 10, 2022. It lists various musculoskeletal complaints and notes functional difficulties. However, the OCF-3 alone is not persuasive evidence that the applicant’s impairments fall outside the MIG. It contains broad diagnostic labels but offers limited objective analysis that links those labels to reliable post-accident clinical findings or demonstrates non-minor pathology.
13Dr. John Toman’s CNRs dated August 11, 2022, document ongoing complaints of pain, burning sensations, swelling, and, later, lumbar spinal stenosis. I accept that the applicant continued to report symptoms after the accident. Although pain is necessarily subjective, these records principally document the applicant’s symptom reporting and, on a balance of probabilities, do not support a finding of an accident‑related condition that is not captured by the s. 3 definition of a minor injury.
14X‑rays of the cervical and lumbar spine show severe degenerative changes, fusion at certain vertebral bodies, and moderate to severe multilevel neuroforaminal narrowing in the cervical spine. These findings are degenerative in nature and are not linked to the accident on the evidence before me.
15Dr. Chaudhry’s physician assessment report dated October 6, 2022, states that since the accident occurred just over a month earlier, the applicant was still in the acute phase of recovery. Dr. Chaudhry did not identify any underlying medical issues, aside from age, that might hinder or delay recovery. During examination, he noted no obvious distress, with a normal range of motion and strength in all joints except for restrictions in the cervical spine and forward flexion of both shoulders. He indicated that the cervical range‑of‑motion limitations could be due to the previous cervical spine fusion surgery performed in 1983 and were not directly related to the accident itself.
16In a follow-up assessment dated March 14, 2023, Dr. Chaudhry concluded that, as a result of the accident, the applicant’s shoulder and cervical/lumbar spine pain were consistent with sprain/strain injuries. He described these as uncomplicated soft tissue injuries without significant musculoskeletal or neurological sequelae.
17Regarding function, Mr. Sharma, a regulated occupational therapist, assessed the applicant on October 6, 2022, and determined that he was independent in personal care activities and managed housekeeping by pacing himself and taking breaks as needed. He was able to walk to the local plaza and access his community. He used public transportation since he did not have a car.
18I place significant weight on Dr. Chaudhry’s assessments from October 6, 2022, and March 14, 2023, as they are based on objective clinical examination. His testing of the applicant demonstrated normal trunk mobility across various movement areas. I acknowledge that chronic pain may continue even when underlying tissue injury has healed and is not solely determined by range-of-motion results. However, in this case, Dr. Chaudhry’s normal objective findings, when viewed together with his overall assessment, do not support the existence of an accident-related non-minor condition.
19I also place weight on Dr. Chaudhry’s June 16, 2023 and August 10, 2023, paper reviews, which I consider highly probative because, after analyzing diagnostic imaging, he determined the findings were degenerative and age-related, not related to the accident. His view remained that the applicant’s accident-related impairments were minimal.
20Overall, I prefer the respondent’s insurer examination evidence on this matter. The s. 44 reports more directly address the statutory test and clearly explain why the applicant’s complaints remain within the MIG. In contrast, the applicant’s evidence shows ongoing symptoms but does not convincingly establish a non‑minor accident-related impairment.
21I accept that, in some cases, an applicant may be removed from the MIG on the basis of chronic pain even without a formal diagnosis of chronic pain syndrome. I also acknowledge that pain is, by its nature, subjective. However, on a balance of probabilities, the evidence must demonstrate ongoing functional impairment or a clinically significant condition causally related to the accident. In this case, the evidence does not establish that the applicant’s post‑accident complaints amount to accident‑related chronic pain. Instead, more persuasive medical evidence attributes the imaging findings to longstanding degenerative changes and pre‑existing structural conditions.
22I am not convinced by the applicant’s reliance on hospital records from August 2024 or later clinical notes from 2024 and 2025 to determine the nature of the accident-related impairments during the period relevant to the disputed treatment plans. Those records are outdated and do not clearly differentiate between symptoms caused by the accident and those due to age-related, degenerative, or pre-existing conditions.
23Accordingly, on the balance of probabilities, I find that the applicant has not met his burden to be removed from the MIG on the basis of chronic pain with a functional impairment.
Pre-existing Conditions
24I find that the applicant has not established a documented pre‑existing condition supported by compelling medical evidence demonstrating that, if he remains in the MIG, he will be prevented from achieving maximal recovery.
25The applicant states that his family doctor noted on September 12, 2022, that the “MVA irritated his pre-existing condition.” His pre-accident medical history includes prostate cancer, hypertension, a pinched nerve, a 2020 accident, and cervical fusion surgery in 1983, which he claims were managed before the collision but were significantly worsened afterward.
26The respondent contends that the applicant’s ongoing complaints are due to age-related degeneration and his significant pre‑accident history, including the previous cervical fusion, rather than a non‑minor accident-related impairment.
27I agree that the CNRs do not establish that the applicant has a documented pre‑existing injury or condition, nor do they provide compelling medical evidence demonstrating that the condition would preclude recovery if the applicant were kept within the confines of the MIG. The notation that the accident “irritated” a pre‑existing condition, without further medical analysis addressing recovery within the MIG, does not satisfy the requirements of s. 18(2).
28CNRs from William Osler Health Centre dated October 14, 2022, note a past medical history of hypertension and prostate cancer. On June 13, 2023, Dr. Arnaud Pandya documented anoscopy findings of large internal hemorrhoids. On October 2, 2023, the applicant was diagnosed with adenocarcinoma of the prostate. These conditions, while medically significant, are not shown to be causally related to the accident‑related musculoskeletal complaints or to restrict recovery within the MIG.
29The record also shows a significant pre‑accident history, including a 1983 cervical fusion and age-related degeneration, but there is no current, compelling medical evidence linking any pre‑existing condition to a likelihood of sub‑optimal recovery within the MIG. The diagnostic imaging is consistently described by the IE assessor as degenerative and age-related. Treating records mainly document subjective symptoms and treatments without stating that MIG limits would prevent maximum recovery. Functionally, the OT evidence indicates independence with personal care and community access through pacing strategies. Based on this record, the applicant has not met the evidentiary threshold required under s. 18(2).
30Dr. Saunders, a psychologist, in a January 30, 2023, assessment, opined that there was no compelling evidence of a pre‑existing psychological condition.
31Accordingly, on a balance of probabilities, I find that the applicant has not met the onus of being removed from the MIG due to pre‑existing conditions.
32Therefore, I find that the applicant’s injuries are predominantly minor as defined by s. 3(1) of the Schedule and remain subject to the MIG.
Is the applicant entitled to the disputed treatment and assessment plans?
33Since the applicant remains within the MIG, I do not need to assess the reasonability and necessity of the disputed treatment plans.
Is the applicant entitled to an NEB of $185.00 per week from August 10, 2022, ongoing?
34I find that the applicant is not entitled to an NEB of $185.00 per week from August 10, 2022, ongoing.
35Section 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 Mut. Ins. Co., 2009 ONCA 391, which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
36The applicant states that before the accident, he lived independently, managed household chores, attended to his personal affairs, and maintained social relationships. He contends that after the accident, he developed persistent neck and back pain, swelling, fatigue, and functional limitations that now hinder his ability to perform routine activities. He relies on his reported use of Tylenol 3 and parts of Dr. Chaudhry’s report, noting that household tasks were performed with difficulty and pacing.
37The respondent asserts that the applicant does not meet the high statutory threshold for NEB entitlement. It references the October 6, 2022 insurer’s examination report by Dr. Chaudhry, the October 6, 2022 in-home occupational therapy assessment report by Mr. Sharma, and Dr. Saunders’s April 11, 2023 psychological paper review. The respondent contends that these assessments consistently show that the applicant remained largely independent in personal care, domestic activities, and community involvement, despite experiencing pain and some limitations.
38I find that, before the accident, the applicant led a fairly independent and routine lifestyle. He was able to care for himself without help, handle household chores, manage his personal matters, and maintain social connections. His evidence and the medical records show that he seldom participated in large outside or recreational activities and spent much of his time at home, helping his wife and enjoying simple leisure activities.
39I further find that, as a result of the accident, the applicant experienced ongoing neck and back pain, fatigue, and some functional limitations. These impairments caused increased discomfort and reduced endurance, requiring him to pace his activities and take breaks during certain household or daily tasks. However, the evidence shows that he remained capable of managing his personal care, performing domestic activities with modifications, and accessing the community to a limited extent.
40I will now turn to the question of whether the applicant has an accident-related impairment that continuously prevents him from engaging in substantially all his pre-accident activities. On this question, I prefer the respondent’s evidence.
41In his October 6, 2022, assessment report, Dr. Chaudhry noted that the applicant was independent in personal care, could perform housekeeping while pacing himself, and was capable of driving despite not having access to a car. He also recorded that, pre‑accident, the applicant rarely engaged in outside activities, mainly stayed at home, and helped his wife during COVID restrictions. After reviewing pre- and post-accident functions, Dr. Chaudhry concluded the impairments were not severe enough to prevent a normal life.
42The in-home occupational therapy assessment concurred, showing Mr. Sharma remained independent in daily activities, managed household tasks with breaks, accessed the community by walking or transit, and stayed socially engaged within limits. Dr. Saunders's April 11, 2023, review also found no evidence of an inability to live normally, noting the applicant's leisure activities, such as watching TV, playing dominoes, and visiting the mall.
43The applicant experienced pain, discomfort, and some functional restriction after the accident. However, pain, reduced endurance, and pacing activities do not meet the statutory test for NEB entitlement. The evidence does not show he has a complete inability to carry on a normal life. Instead, he continued to manage personal care and household tasks, and to perform limited activities with modifications.
44The applicant contends that Dr. Chaudhry’s conclusions are inconsistent with his findings of limited motion and reported pain. I do not agree with this argument. Clinical findings like decreased range of motion and subjective complaints of pain are relevant medical considerations, but they do not determine the legal criterion for NEB entitlement. The statutory issue is not whether the applicant had impairments, but whether those impairments caused a complete inability to carry on a normal life. Based on the totality of the evidence, that high standard has not been satisfied.
45Accordingly, considering the applicant’s pre‑accident activities and the nature and extent of his accident‑related impairments, I find on a balance of probabilities that he does not have an impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident. The statutory threshold for NEB entitlement has therefore not been met, and the applicant is not entitled to an NEB of $185.00 per week from August 10, 2022, ongoing.
Interest
46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Because I have found that the applicant is not entitled to the disputed benefits, no interest is payable.
Award
47The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
48The applicant submits that the respondent repeatedly denied benefits despite what he characterizes as clear evidence of chronic and worsening injury. However, beyond this general assertion, the applicant has not identified specific instances of misconduct, delay, or claims‑handling behaviour that would meet the statutory threshold for an award.
49The respondent submits that its handling of the claim was reasonable. It obtained multiple insurer examination reports addressing the disputed benefits, issued written denial letters that set out the medical and statutory bases for its decisions, and partially approved one treatment plan. The respondent maintained its positions on the basis of medical opinion evidence, including opinions supporting the applicability of MIG and the absence of entitlement to the claimed benefits.
50An award under s. 10 is an extraordinary remedy. It is not triggered simply because benefits were denied or because the applicant ultimately disagrees with the insurer’s position. The Tribunal must be satisfied that the insurer’s conduct was unreasonable, careless, or improper, such that it amounts to more than a good‑faith disagreement over entitlement.
51The respondent’s decisions were backed by insurer reports, therapy assessments, and psychological evidence directly related to the statutory tests. It communicated, provided reasons for denial, and reassessed as new info emerged. Although the applicant calls the denials unjustified, the evidence shows the respondent did not ignore relevant info, fail to investigate, or act in bad faith. Ongoing symptoms alone do not make the respondent’s conduct unreasonable.
52On the record before me, the respondent’s claims-handling reflects a legitimate dispute rooted in medical evidence and statutory interpretation, not the kind of conduct that would justify an award under s. 10.
53I therefore conclude that the respondent is not liable to pay the award.
ORDER
54For the above reasons, I find 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.
iii. The applicant has not met his onus to establish entitlement to NEB of $185.00 per week from August 10, 2022, ongoing.
iv. The applicant is not entitled to interest or an award.
v. The application is dismissed.
Released: April 21, 2026
Harouna Saley Sidibé
Adjudicator