Citation: Ibrahim v. Co-operators General Insurance Company, 2026 ONLAT 24-013009/AABS

Licence Appeal Tribunal File Number: 24-013009/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:

Simon Ibrahim

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Christin Carmichael Greb

APPEARANCES:

For the Applicant: Peilin Yao, Counsel

For the Respondent: Ethan Edwards, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Simon Ibrahim, the applicant, was involved in an automobile accident on April 7, 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:

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? Note: $1,952.80 is remaining in the MIG.

2. Is the applicant entitled to $1,965.28 for physiotherapy services, proposed by Physiomobility Don Mills, in a treatment plan/OCF-18 (“plan”) dated July 18, 2023?

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

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

RESULT

3I find that:

1. The applicant’s injuries are predominantly minor as defined by s. 3(1) of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

2. As the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plan in dispute is reasonable and necessary.

3. The applicant is not entitled to interest or an award.

ANALYSIS

The applicant remains in the MIG

4I find that the applicant remains in the MIG.

5Section 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.”

6An 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 prevents maximal medical recovery of the minor injury sustained in the accident if they were 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.

7The applicant submits that she should be removed from the MIG on the basis of chronic pain and a psychological condition.

The applicant does not suffer from chronic pain with a functional impairment that warrants removal from the MIG

8I find that the applicant does not suffer from an accident-related chronic pain with a functional impairment which would remove her from the MIG.

9The applicant argues that between September 2022 and October 2023 she consistently attended massage therapy and physiotherapy for ongoing lower back, knee, neck, and calf pain. As well, she submits that she was diagnosed with Degenerative Disc Disease in L5-S1, which was directly attributed to the accident. In support of this position, the applicant relies upon the clinical notes and records of Dr. Pinnaduwage, family physician, dated September 13, 2023, and September 20, 2023, where she reports of pain since the accident.

10As noted above, the accident occurred on April 7, 2022. An ambulance was not called to the scene. The applicant went to the emergency room later in the evening and complained of neck and back pain. She was discharged with a recommendation for physiotherapy.

11The applicant began physiotherapy treatments in September 2022 and continued attending until October 2023. The clinical notes and records of the physiotherapist document improvements to her pain in her lower back and knee.

12The applicant visited Dr. Liu, family physician in October 2022. There was no mention at this time of the motor vehicle accident. The applicant did, however, mention the accident in an April 2023 visit with Dr. Liu. The applicant switched family physicians in April 2023. The accident was mentioned in a September 2023 visit with Dr. Pinnaduwage, family physician, in which she complained of lower back and left hip pain. At that time, Dr. Pinnaduwage recommended over-the-counter medications as well as physiotherapy and massage. The applicant was referred for x-rays which revealed minor degenerative disc disease. She was also referred to Silver Pain Centre.

13The applicant relies upon the findings in T.S. v Aviva General Insurance Canada, 2020 CanLII 51295 (ON LAT) in which Adjudicator Lamoreaux states that “chronic pain can be described as ongoing or recurrent…or more than 3 to 6 months,” as well as P.L. v. Aviva Insurance Canda, 2019 CanLII 22223 (ON LAT) in which it was found that a diagnosis of Chronic Pain Syndrome is not required to remove an applicant from the MIG. The applicant goes on to submit that she meets any and all of the American Medical Association’s (“AMA”) Guides to the Evaluation of Permanent Impairment criterion for chronic pain.

14The respondent submits that the applicant has not provided compelling evidence of a debilitating chronic pain condition to establish removal from the MIG. The respondent argues that while the applicant was diagnosed with degenerative disc disease, there is no evidence that it was caused by the motor vehicle accident, and that Dr. Pinnaduwage did not offer any opinion on causation. As well, the respondent points out that the applicant did not attend Dr. Liu until a year after the accident and at that time advised that she had suffered from pre-existing back pain before the accident. The respondent relies on 17-007825 v Aviva, 2018 CanLII 98282 (ON LAT) to argue that chronic pain cannot be inferred based solely on the length of time that has elapsed since the date of the accident or based on the length of time the applicant has attended treatment.

15The respondent argues that the applicant has not met her onus of demonstrating any of the six AMA Guides’ criteria for diagnosing chronic pain syndrome, without a formal diagnosis. In particular, the respondent argues that the applicant has not produced any evidence of any dependence on health care providers, except for sporadic visits, on prescription pain medication, or withdrawal from work or social activities.

16The AMA Guides six criteria for diagnosing chronic pain include:

a. Use of prescription drugs beyond the recommended duration and/or abuse or dependence on prescription drugs or other substances;

b. Excessive dependence on health care providers, spouse, or family;

c. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

d. Withdrawal from social milieu, including work, recreation, or other social contacts;

e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviour.

The applicant submits that she meets all these criteria, especially a, b, d, e, and f. The applicant submits that she has become dependant on prescription drugs and treatments, that she has withdrawn from social milieu, including work, recreation, and social contact, and that she has developed psychosocial sequelae after the accident.

17I find that the applicant has not demonstrated that she suffers from a chronic pain condition with functional impairment because the weight of the evidence before does not meet any of the 6 clinical criteria for chronic pain as outlined in the AMA Guides, even in the absence of a formal diagnosis. The clinical notes and records of Dr. Pinnaduwage do not show any reports of excessive use or dependence upon prescription drugs or other substances. There is no evidence provided showing that the applicant has become excessively dependent on healthcare providers, family, or her spouse. Furthermore, since the motor vehicle accident, the applicant has been pregnant and had a baby, contradicting her claim of her physical capacity is insufficient to pursue work, family, or recreational needs.

18While the applicant was referred to Silver Pain Centre, there is no evidence provided showing that she attended for assessment or treatment of chronic pain.

19For this reason, I find that the applicant has not met her onus of demonstrating that she suffers from chronic pain with functional impairment warranting removal from the MIG.

The applicant does not suffer from a psychological impairment that warrants removal from the MIG.

20I find that the applicant does not suffer from an accident-related psychological impairment which would remove her from the MIG.

21The applicant relies upon the findings in Rawal v. Economical Insurance, 2023 CanLII 62926 (ON LAT), to support a psychological impairment warranting removal from the MIG. The applicant argues that documentary evidence of an applicant making repeated complaints of psychological symptoms, even outside of formal psychological assessments, was sufficient to support a claim they were suffering from an accident-related psychological impairment. The applicant also relies upon Jeevakumaran v. Unifund, 2021 CanLII 18929 (ON LAT) to argue that she has consistently reported symptoms of psychological impairment to her family physician and other healthcare providers.

22The respondent submits that the applicant has not shown any compelling medical evidence that she sustained a persistent or diagnosable psychological impairment. The respondent argues that there were no reports of psychological symptoms until more than a year following the accident and that those reports were connected to unrelated stressors such as job loss and financial strain. The respondent also submits that there is no evidence that the applicant experiences a psychological impairment beyond the normal sequelae of a minor injury.

23The applicant has not directed me to evidence that she shows signs of a psychological impairment that would warrant removal from the MIG, outside of limited mentions in clinical notes and records more than a year post-accident. The applicant submits that in Jeevakumaran, the adjudicator placed “significant weight on the applicant’s consistent self-reports” of symptoms of psychological impairment, and that she has also made consistent reports of symptoms of psychological impairment.

24I find that the applicant has not demonstrated that she suffers from a psychological impairment to warrant removal from the MIG. The applicant made no reports to her family doctor until April 2023 and then again in September 2023. She was not referred for psychological treatment or prescribed medication. As well, the first psychological report was not until a year post-accident. A few reports to the family doctor, with no referral or prescription, do not imply “consistent self-reports” as outlined in Jeevakumaran, where that claimant had numerous notes in clinical records of various providers, as well as psychological assessments and treatment.

25I find on a balance of probabilities that the applicant has not met her onus and is subject to treatment within the MIG limit.

Is the applicant entitled to the disputed treatment plan?

26Since the applicant remains within the MIG, there is no need to assess the reasonableness and necessity of the disputed treatment plan.

Award

27The 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.

28The applicant submits that the respondent unreasonably withheld or delayed payments of benefits by maintaining an incorrect position on the applicability of the MIG, by failing to acknowledge her chronic pain and psychological symptoms, and failing to conduct a reasonable investigation, including a s.44 examination, if it disputed the applicant’s entitlement.

29The respondent submits that the applicant’s arguments are a reversal of the burden of proof and should be rejected, that it is not the respondent’s obligation to build the applicant’s case. The respondent argues that it has reviewed all medical evidence submitted by the applicant and has adjusted the claim in good faith, and that there is no duty prescribed within the Schedule, or case law that mandates an insurer to conduct a s.44 examination.

30An award is not triggered by a disagreement or incorrect denial. To succeed, the applicant must show that the insurer acted unreasonably in withholding or delaying benefits. I am not satisfied that the respondent meets this threshold. The evidence shows that the respondent made its determinations based on the available medical evidence and provided reasons for denying the claimed benefits. On this, I do not find that the respondent unreasonably withheld or delayed payment so as to justify an award, nor that the applicant is entitled and therefore nothing is due.

31The claim for an award under s.10 of Reg. 664 is therefore denied.

Interest

32Interest applies to the payment of any overdue benefits under s.51 of the Schedule. Since I have determined that the disputed benefits are not payable, there are no overdue benefits before me and, consequently, no interest is payable.

ORDER

33For the reasons outline 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 plan in dispute is reasonable and necessary;

iii. The applicant is not entitled to interest or an award; and

iv. The application is dismissed.