Citation: Sutherland v. Intact Insurance Company, 2026 ONLAT 24-004349/AABS

Licence Appeal Tribunal File Number: 24-004349/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:

Catherine Sutherland

Applicant

And

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Estella Muyinda

APPEARANCES:

For the Applicant:

Lucy Lee, Counsel

For the Respondent:

Eluxmeenah Rishihesan, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Catherine Sutherland, the applicant, was involved in an automobile accident on April 10, 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 to be decided in the hearing are:

1. 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?

2. Is the applicant entitled to $1,167.50 for physiotherapy services, proposed by CBI Health Centre in a treatment plan submitted on November 24, 2023?

3. Is the applicant entitled to $43.00 ($1,541.00 less $1,498.00 approved) for chiropractic services, proposed by London Chiropractic and Massage Clinic in a treatment plan submitted on June 18, 2024?

4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant’s accident-related injuries are outside of the MIG as she suffered a concussion.

4The applicant is entitled to the treatment plan for $1,167.50 for physiotherapy services.

5The applicant is not entitled to $43.00 ($1,541.00 less $1,498.00 approved) for chiropractic services.

6The respondent is not liable to pay an award under s. 10 of Reg. 664 because it has not unreasonably withheld or delayed payments to the applicant.

7The applicant is entitled to interest on any overdue payment of benefits.

PROCEDURAL ISSUES

Applicant’s Motion Pertaining to the Respondent Redacting Information.

8The applicant filed a motion pertaining to the respondent’s redacting information from adjuster’s log notes that it submitted. The applicant requested the Tribunal to order the respondent to provide detailed reasons for redacting information from the adjusters’ log notes. The respondent did not consent to the motion. Thus, the applicant asks the Tribunal to draw an adverse inference.

9On September 23, 2024, the applicant’s counsel contacted the respondent by way of email seeking the basis for the redactions of the adjuster’s log notes because, according to the applicant, the surrounding context did not relate to reserves or litigation privilege. The applicant followed up with letters of the same request on October 7, 2024, and October 25, 2024.

10In the Motion Order dated January 27, 2025, Adjudicator Brett Todd, Vice-Chair, dismissed the applicant’s motion on the basis that in the Case Conference Report and Order (CCRO) dated July 30, 2024, the respondent agreed to provide the adjusters’ log notes, with redactions allowed for privilege and reserves, with the reasons for the redactions indicated.

11The Tribunal found that in the CCRO, the respondent had agreed to provide the basis for the redactions and that another order for the same documents with the same criteria stating that explanations were required for each redaction would be unnecessary and duplicative.

12Further, Adjudicator Todd, Vice-Chair, stated that it was up to the hearing adjudicator to determine the issue of the redactions. He stated that a hearing adjudicator “can provide relief as a result of a party’s failure to produce records, or a party’s failure to abide by the conditions regarding the production of records, in accordance with Tribunal order”. To that end, the “Tribunal can grant remedies for non-compliance, such as attaching diminished weight to evidence, drawing adverse inferences from a party’s failure to comply with Tribunal orders, finding against a party for failing to meet its onus, or for causing prejudice to the opposing party. It is also open to a hearing adjudicator to consider the merits of cases based on the available evidence.” I note that the respondent has not submitted any clarification for the redactions as it had agreed to do so in the CCRO. Further, the respondent did not respond to the applicant’s request nor provide any submission related to the redactions in the adjuster’s log notes. The applicant claims that since she has not received an adequate clarification on the redactions she is prejudiced by the respondent’s failure. Thus, the applicant asks the Tribunal to draw an adverse inference.

13I acknowledge the applicant’s submissions with respect to the redactions in the adjuster’s log notes, specifically, that the respondent has not provided reasons for the redactions, despite agreeing to do so at the case conference. The redactions made to the adjuster’s log notes are specifically addressed in the CCRO dated July 30, 20224 where it is noted the respondent agreed to provide reasons.

14The respondent was ordered to produce the reasons for the redaction in the adjuster’s log notes but failed to do so. The respondent has made no submissions to explain why it failed to comply with the Order. Thus, I am left to conclude that the respondent failed to provide the basis of the redactions because it was unfavourable to the respondent to do so. As a result, I draw an adverse inference because the respondent failed to produce the reasons for redaction as ordered.

ANALYSIS

Minor Injury Guideline

15Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

16An insured person 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 from any accident-related minor injury if they are kept within the MIG confines. 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 in establishing removal from the MIG lies with the applicant.

17The applicant submits that since she sustained a concussion as a result of the accident and given, she has a pre-exiting condition she falls outside the MIG.

Concussion

18I find that the applicant has proven on a balance of probabilities that she sustained a concussion in the accident, and her injuries accordingly fall outside the MIG.

19The applicant submitted evidence showing that she suffered from concussion. Three days after the accident, the applicant was seen by Dr. Heba Youssef, general practitioner. The clinical notes and records (CNR) by Dr. Youssef dated March 13, 2023, reveal that Dr. Youssef diagnosed the applicant as suffering from possible concussion.

20The applicant submits that she was treated with concussion protocol from her first visit with Dr. Youssef three days after the accident. During the visit, Dr. Youssef recommended that the applicant follow up with her family doctor if she did not feel better. He also recommended that the applicant go to the emergency room at the hospital in the event the symptoms became worse. The applicant states that she did not go to the emergency room, however, she followed up with Dr. Gihan Abdel Malek, family doctor and she continued to be treated for concussion related issues including dizziness, balance and headaches.

21Subsequently, the applicant visited CBI Health Centre, where she was assessed for concussion and neck pain by Mr. Komal Patel, physiotherapist on March 20, 2023. Mr. Komal concluded that the applicant experienced an alteration of mental state after the accident. His records show that the applicant had the following symptoms, intermittent concussion, intermittent concussion disturbing sleep, confusion aggravated by talking and crowds, which was eased by quiet environments. Further, in the disability certificate dated July 15, 2023, Mr. Komal Patel indicated that the applicant‘s injury included a concussion.

22The applicant visited West London Family Health Clinic to see Dr. Gihan Abdel Malek, family doctor, on June 13, 2023. Dr. Malek’s records show that the applicant was diagnosed as suffering from possible concussion as a result of the accident, by Dr. Youssef.

23The respondent relies on the s. 44 report of Dr. Pankaj Bansal, general practitioner’s assessment dated January 8, 2024, to state that the applicant injuries remain in the MIG. In his report, Dr. Bansal opined that from a musculoskeletal injury perspective the applicant sustained uncomplicated, self-resolving, soft tissue type injuries in the neck and shoulder. Dr. Bansal stated that the applicant’s injuries had mostly resolved.

24During the assessment of the applicant, Dr. Bansal noted that the applicant reported that she was experiencing dizziness, a sense of being off balance and vertigo. The applicant informed Dr. Bansal that she became dizzy when she was moving too quickly, performing household tasks, or when walking around in the home environment. However, Dr. Bansal did not address the concussion condition described by the applicant in his report.

25The applicant submits that the respondent cannot rely upon or base any denial on Dr. Bansal’ assessment because it is a physical examination from a musculoskeletal perspective and does not provide any review or assessment of the applicant’s concussion issues.

26I note that in the two additional reports by Dr. Bansal, dated February 28, 2024, and June 10, 2024, wherein he reviewed the additional documentation from the applicant, Dr. Bansal repeated that his opinion was based on a physical examination from a musculoskeletal perspective. It is on that basis that the respondent asserts that the IE and addendum reports by Dr. Bansal support the position that the applicant’s injuries are predominantly minor and do not warrant removal from the MIG. I find that Dr. Bansal’s opinion from a musculoskeletal perspective, even where the applicant self reported to the IE that she experienced the following concussion symptoms, dizziness, headaches and feeling off balance, does not shift the onus from the applicant to prove that she had a concussion.

27Nevertheless, I give less weight to Dr. Bansal’s opinion because it does not at anytime give a perspective on the applicant’s concussion. As a result, I am left with the applicant’s treatment service providers evidence to consider in the circumstances.

28Upon review of the evidence in total, I am persuaded that the applicant was diagnosed by Dr. Youssef as suffering from a possible concussion. Further, the CNRs by the applicant’s family doctor dated June 13, 2023, September 6, 2023, December 18, 2023, September 28, 2023, November 23, 2023, February 6, 2024, March 28, 2024, and April 12, 2024, demonstrate that the applicant continued to be treated for concussion. Additionally, the CNR by Mr. Patel support the applicant‘s submission that she suffered from a concussion. Thus, I find that the applicant has provided contemporaneous corroborated medical evidence that substantiates that she suffered from a concussion, which I find warrants removal from the MIG.

Pre-existing Condition

29The applicant has had treatment over the years of a right knee osteoarthritis resulting from a fall around 20 years prior to the accident. The applicant submits that the pre-existing conditions, that include vertigo, low back and hip injury pain will interfere with her ability to achieve maximal recovery from the accident-related injuries. Additionally, the applicant submits CNRs from Dr. Malek dated June 1, 2020, and October 27, 2021, in support of having the pre-existing conditions that would prevent her from achieving maximal recovery from the accident-related injuries.

30As well, the applicant relies on the CNRs from Dr. Jennifer Van Bussel physiotherapist, dated December 18, 2023, that reveal that the applicant has a history of predominantly right sided knee pain, to substantiate that she has a pre-existing condition. In that regard, I give no weight to Dr. Bussel’s opinion because I find that the clinical notes from Dr. Bussel do not support the existence of a pre-existing condition because they are post-accident.

31The respondent submits that the applicant has not produced any evidence that her pre-existing medical history warrants removal from the MIG. The respondent relies on Dr. Bansal’s opinion wherein he states that the applicant did not report a pre-existing medical condition that would prevent her from attaining maximal recovery from her injuries therefore, the applicant’s injuries remain in the MIG.

32The existence of a pre-existing condition or injury does not, on its own, remove an applicant from the MIG. Rather, section 18(2) provides that the applicant must provide compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.

33The onus is on the applicant to provide such compelling medical evidence. However, I was not led to any medical evidence stating that the applicant’s pre-existing conditions would prevent maximal recovery should she be held to the MIG. I find the applicant has not met the onus, on the balance of probabilities, to be removed from the MIG on the basis of a pre-existing condition.

34To 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.

35The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment

$1,167.50 for physiotherapy services, proposed in a treatment plan dated November 24, 2023.

36I find that the applicant is entitled to $1,167.50 for physiotherapy services, proposed in a treatment plan dated November 24, 2023.

37As a result of the accident, the applicant was diagnosed with several injuries, including, whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs. The applicant submits that this treatment plan is reasonable and necessary. The treatment plan for physiotherapy services for $1,167.50 proposed by Mr. Patel is estimated to consist of 12 sessions that will take 10 weeks to complete. The goals of the treatment plan include to decrease pain, increase functionality, increase range of motion and returning to her activities of daily living.

38The respondent relies on Dr. Bansal’s two additional reports, dated February 28, 2024, and June 10, 2024, where he opined that the treatment plan is within the MIG limits and in the alternative, it is not reasonable and necessary.

39The respondent submits that the applicant has not produced evidence to support ongoing impairments or the need for the proposed services. It argues that there is no compelling evidence that the applicant requires any further facility-based treatment, and that the treatment plan is not reasonable and necessary.

40In the CNR dated June 13, 2023, Dr. Malek, noted that the applicant had, physiotherapy treatment, massage (cupping) for her left shoulder and massages of her neck and head for her accident-related impairment. I note that Dr. Malek referred the applicant for physiotherapy treatment through OHIP, however, she was unable to secure physiotherapy appointments. As a result, the applicant states that she turned to her private insurers for the treatment and she has been receiving physiotherapy treatment from her insurer since the respondent denied the treatment. In the following CNR’s, Dr. Malek states that the applicant was in need of more physiotherapy. Dr. Malek’s CNR reveal that the applicant continued receiving physiotherapy. Thus, I am persuaded that the applicant’s need for physiotherapy services is ongoing.

41Based on the foregoing, I find that the applicant has submitted sufficient evidence that shows she has met her onus and has established that the treatment plan for $1,167.50 is reasonable and necessary.

$43.00 ($1,541.00 less $1,498.00 approved) for chiropractic services proposed in a treatment plan dated June 18, 2024.

42I find that the applicant is not entitled to $43.00 ($1,541.00 less $1,498.00 approved) for chiropractic services, proposed in a treatment plan dated June 18, 2024.

43As a result of the accident, the applicant was diagnosed with the following injuries whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, pain in thoracic spine and sprain and strain of thoracic spine. Keith Leung, chiropractor, completed the treatment plan proposing chiropractic services for approximately 26 weeks for 41 sessions. The goals of the treatment plan include, to decrease pain, increase functionality, increase range of motion, and to assist the applicant in returning to her activities of daily living.

44The applicant submits that the treatment plan was partially denied due to MIG limits. The applicant asserts that she does not suffer injuries that fall within the MIG and or is not subject to MIG limits. It is on that basis that she submits that the balance in the of amount of $43.00 be approved.

45The respondent submits that the applicant is not entitled to the treatment plan on the basis that she sustained minor injuries as a result of the accident.

46The treatment plan for chiropractic services was partially approved. It is however difficult for me to consider whether the treatment plan is reasonable and necessary because the applicant has not indicated what the outstanding amount is for, nor has she provided or pointed to any evidence that would determine that the balance on the treatment plan is necessary.

47The applicant has the onus to establish that the outstanding balance of the treatment plan is reasonable and necessary. But without any specific submissions on the denied portion and without being directed to any evidence to support its reasonableness and necessity, the applicant is unable to meet her onus.

48I find that the applicant provided no specific submissions with respect to her entitlement to $43.00 ($1,541.00 less $1,498.00 approved) for chiropractic services. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided as per Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50. As the applicant has not made submissions on the entitlement, thus, the respondent does not have a chance to address it.

49Accordingly, I find that that there is insufficient evidence to establish whether the treatment plan is reasonable and necessary.

Interest

50The applicant is entitled to the payment of interest on overdue benefits pursuant to s. 51 of the Schedule.

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.

52The applicant submits that the respondent unreasonably withheld and/or delayed payments when it delayed the assessment of the applicant’s injuries until an OCF-18 was provided. The applicant asserts that the respondent recognized and noted on June 9, 2023, June 16, 2023, and June 28, 2023, that the applicant’s injuries may fall outside the MIG. However, it delayed the assessment until the OCF-18 was submitted. The applicants submits that by deciding to wait until an OCF-18 was provided, the respondent delayed treatment by approximately a year and a half.

53Further, the applicant submits that the respondent’s failure to identify the gap in Dr. Bansal’s report – that is Dr. Bansal failed to consider whether the applicant suffered from a concussion – and the respondent’s reliance upon the report to continue to deny the applicant’s claim that her injuries fell outside of the MIG resulted in further delay of applicant’s treatments.

54Furthermore, the applicant submits that she was prejudiced by the Respondent’s failure to provide clarification on the numerous redactions made throughout the adjuster log notes.

55The respondent submits that the applicant has not met her onus because she has failed to demonstrate how the facts of this case warrant the award. The respondent states that it addressed each issue in dispute in a timely manner, by having each one assessed by medical experts, obtaining additional experts to assess certain portions of the evidence at the suggestion of the experts, and by ordering addendums to be completed on receipt of significant new medical documentation. Additionally, the respondent submits that the applicant has not demonstrated how it acted in bad faith, or unreasonably withheld or delayed payment of any of the benefits in dispute.

56The applicant has the onus to show the benefit that was unreasonably withheld. I am of the view that the fact that the applicant was not removed from the MIG is not grounds for an award because the MIG status is not a benefit. Further, the respondent is not required to seek an assessment let alone do so for the MIG.

57The respondent relied on its assessors’ reports, which it was entitled to do. However, the respondent did not provide reasons for the redactions as determined in the CCRO as a result an adverse inference has been made against the respondent in that, less weight is placed on the redacted documents.

58Further, I find the applicant has failed to establish how the respondent’s not providing reasons for the redactions somehow led to an unreasonable withholding of benefits. Case law has established that an insurer is not held to a standard of perfection, but rather, it should be held to a standard of reasonableness. The purpose of an award is to make an insurer accountable for misconduct and to deter it and others from future similar acts. I find that the respondent was entitled to rely on the opinions of Dr. Banal IE reports when it denied the applicant’s entitlement to the treatment plans in dispute.

59Furthermore, case law has established that an award should be granted only where there is unreasonable behaviour from an insurer in withholding or delaying payments, which can be seen as excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

60I find that the applicant has not established how benefits were withheld to substantiate that an award was warranted. Accordingly, the respondent is not liable to pay an award.

ORDER

61The applicant’s accident-related injuries are outside of the MIG as she suffered a concussion.

62The applicant is entitled to the treatment plan for $1,167.50 for physiotherapy services.

63The applicant is not entitled to $43.00 ($1,541.00 less $1,498.00 approved) for chiropractic services.

64The respondent is not liable to pay an award under s. 10 of Reg. 664.

65The applicant is entitled to interest on any overdue payment of benefits.