Citation: Abban v. Intact Insurance Company, 2026 ONLAT 24-006091/AABS

Licence Appeal Tribunal File Number: 24-006091/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:

Hannah Abban

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

Lori Minervini, Paralegal

For the Respondent:

Purva Vaidya, Counsel

HEARD: In Writing

OVERVIEW

1Hannah Abban, the applicant, was involved in an automobile accident on February 15, 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.

2The applicant was a front seat passenger in a motor vehicle that was struck on the passenger side at an intersection by a vehicle that failed to stop. The vehicle in which the applicant was a passenger, flipped over as a result of the accident, leaving the applicant suspended by a safety belt requiring her removal from the vehicle by emergency services. The applicant was taken to Etobicoke General Hospital by ambulance; the vehicles were towed off site and declared at total loss.

PRELIMINARY ISSUES

3The preliminary issues to be decided are:

1. Is the applicant barred from proceeding to a hearing for the following benefits:

a. A chronic pain assessment detailed at para. 5 vi. below; and

b. A psychological assessment detailed at para. 5 vii below

because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

4I find neither party addressed the preliminary issues identified in the case conference report and order of September 19, 2024. In the absence of any submissions on the issues raised by the respondent, the respondent has not meet his burden with the preliminary issues raised. I find the preliminary issues raised do not pass and are dismissed.

ISSUES

5The 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 of $185.00 per week from April 18, 2022 to February 1, 2024?

iii. Is the applicant entitled to $241.19 ($1,300.00 less $1,058.81 approved) for physiotherapy services, proposed by Islington North Chiropractic in a treatment plan/OCF-18 (“plan”) submitted June 7, 2022?

iv. Is the applicant entitled to $3,089.36 for chiropractic services, proposed by Islington North Chiropractic in a plan submitted August 2, 2022?

v. Is the applicant entitled to $4,000.24 for chiropractic services, proposed by Islington North Chiropractic in a plan submitted December 13, 2022?

vi. Is the applicant entitled to $2,217.00 for a chronic pain assessment, proposed by Polyclinic Rehabilitation Institute Inc. in a plan submitted June 13, 2024?

vii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Polyclinic Rehabilitation Institute Inc. in a plan submitted June 13, 2024?

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

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

RESULT

6I find the applicant’s injuries to be outside the MIG.

7I find the applicant is entitled to NEB of $185.00 per week from April 18, 2022 to February 1, 2024.

8I find the applicant has not discharged her onus that the balance of the treatment plan in paragraph 5 iii and the treatment plans outlined in paragraphs 5 iv, v, vi and vii are reasonable and necessary.

9I find the respondent is not liable for an award.

10I find the applicant is due payment of interest from the respondent for NEB.

PROCEDURAL ISSUES

11The respondent submitted that the late production of the Chronic Pain Report, by Dr. Igor Wilderman, physician focused practice designation in pain management, dated March 25, 2025, made it impossible for the respondent to obtain a rebuttal report in time, thereby causing severe prejudice to the respondent leading to procedural unfairness. Further, the respondent submitted permitting the applicant to file new evidence to refute the basis for a benefit denial long after the production deadline is an act of bad faith. The respondent submitted if there was evidence to support the contention that the applicant suffers from chronic pain, that evidence should not come in two years after determinations were made on evidence that existed at that time, and to allow the applicant to add evidence two years later is procedurally unfair.

12The applicant submitted in her reply that the delay in producing Dr. Wilderman’s report was caused by the non-payment by the insurer to treating facilities, along with Canada Post service disruptions. The applicant submitted that the March 25, 2025, report by Dr. Wilderman is clinically substantiated and directly relevant to removal from the MIG, chronic pain diagnosis and entitlement to treatment plans. Further the applicant submitted the Tribunal has the discretion under the Licence Appeal Tribunal Rules, 2023 (“Rules”), Rule 9.3 and Rule 9.4.4.

13I note the notice of written hearing prescribed a hearing date of June 13, 2025. I further note the report of Dr. Wilderman was dated March 25, 2025 and produced to the respondent and filed with the LAT on March 28, 2025, approximately 71 days prior to the written hearing date. The case conference report and order of September 19, 2024 closed productions as of December 18, 2024.

14In considering the factors to determine admissibility of Dr. Wilderman’s report, I find the applicant’s reasons for the delay, falls in part on the responsibility of the insurer due to delayed payments for productions; this in turn delayed the production of the report. In balancing the relevance of the Dr. Wilderman’s report to the applicant’s case and the prejudice to the applicant of its exclusion against any prejudice to the respondent of its late disclosure, I note the applicant submitted there was time for the respondent to bring a motion before the tribunal for an order to address any prejudice to the respondent. I find the applicant’s submission to be persuasive as 71 days is sufficient time to bring a motion to exclude the report and/or seek leave for a remedy to answer it or conduct a paper review by one of the insurer’s assessors. I also find that the delay was in part due to the respondent’s actions, and the respondent cannot benefit procedurally from a delay it helped to create. Further, I note Dr. Wilderman’s report is largely addressed issues in the insurer’s psychological assessment by Dr. Rubenstein, psychologist.

15I find the report of Dr. Wilderman to be late filed and accept it into evidence pursuant to my discretion and analysis of Rule 9.3 for the above stated reasons. I do not reduce the weight of Dr. Wilderman’s evidence in respect to the issues the insurer examinations addressed. The weight of any new evidence in Dr. Wilderman’s report that the insurer’s examiners did not have opportunity to address, will be discussed in the context of the decision, if any.

ANALYSIS

Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG?

16I find the applicant’s injuries to be outside the MIG.

17Section 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. An 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.

18The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

19The applicant submitted her injuries are beyond a minor injury from chronic pain with functional impairments, and relies upon the report of Dr. Wilderman, and the notes and records of her family physician, Dr. Ajisafe. I note Dr. Ajisafe’s clinical notes and records indicate the applicant’s pain complaints shortly after the accident and immediately thereafter in his entries of February 17, 2022, March 7, 2022 and April 25, 2022. Pain continues to be a theme in Dr. Ajisafe’s records including an OCF-3 dated September 19, 2023 and a pain clinic report of December 17, 2024. I have no reason to doubt the evidence contained in Dr. Ajisafe’s notes and give it weight, as it is contemporaneously recorded with the evolution of the complaints of the applicant.

20The applicant submits she suffers from chronic pain syndrome (“CPS”), anxiety, depression and post-traumatic stress disorder (“PTSD”), and functional impairments. The applicant relies upon the report of Dr. Wilderman, physician with focused practice designation in pain management and certified in impairment rating, dated March 25, 2024 for the diagnosis of CPS with functional impairment.

21I note Dr. Wilderman applied the Beck Anxiety Inventory (“BAI”) with a score of 31 being severe anxiety, and the Beck Depression Inventory-II (“BDI-II”) with a score of 37 being severe depression. Dr. Wilderman also applied the PTSD Symptom Scale Interview for DSM-5 (“PDD-I-5”) and found the applicant tested severe for symptoms of PTSD. I note Dr. Wilderman discussed that the BAI, BDI-II, and PDD-I-5 tools are widely accepted, but the applicant’s psychological injuries would be best corroborated with a psychologist or psychiatrist.

22In respect to CPS, Dr. Wilderman reported that he applied the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“AMA Guides”) requiring the patient to exhibit 3 or more of 6 prescribed characteristics; he found she scored positive on 5 of 6 criteria as follows;

i. Dr. Wilderman found that the applicant displayed excessive dependence on health care providers or family and detailed her dependence on her family for household and social responsibilities post-accident and comparative independent in her pre-accident activities.

ii. Dr. Wilderman noted secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain, as detailed by her significant decrease in activity level since the accident resulting in deconditioning and aggravation of her impairments.

iii. Dr. Wilderman also noted a withdrawal from social milieu and recreational activities including going to restaurants and shopping on a regular basis with friends and family pre-accident to a complete loss of interest post-accident.

iv. Further, Dr. Wilderman noted a failure to restore to pre-injury function after a period of disability such the physical capacity is insufficient to pursue work or family or recreational needs, as evidenced by three years of pain related complaints well beyond the expected timeline for normal healing, resulting in substantial functional impairment of her activities of normal living post-accident as compared to her pre-accident activity level.

v. Also, Dr. Wilderman noted a development of psychosocial sequelae after the accident including anxiety, fear avoidance, depression or nonorganic illness behaviours evidenced by the applicant’s pain and limitations prevents her from spending leisure time with friends and family, attending social events, eating at restaurants, shopping, performing re-accident housekeeping/home maintenance and taking her anger and frustration out on family members, secluding herself from friends and family believing her condition is a burden to others and feeling confined to her home after the accident.

23I note Dr. Wilderman made a finding of CPS with functional impairment and gave her a guarded prognosis due do her barriers to recovery including severity of symptoms on initial assessment, initial injury reactions of sleep disturbance nervousness and anxiety, perpendicular collision, current psychosocial problems and signs of emotional disturbance regarding her injury.

24Further, Dr. Wilderman found the applicant sustained a serious injury and permanent impairment of important physical and psychological function as a result of the accident, with a serious degree of functional limitation as it interferes with a substantial amount of her pre-accident activities and is associated with permanent symptoms including pain and sleep disorder. I find Dr. Wilderman’s evidence to be detailed and thoroughly reasoned and give it weight.

25The respondent submitted the applicant sustained only minor injuries and remains within the MIG. The respondent thoroughly reviewed the applicant’s medical evidence in respect to her physical injuries and found that the nature of the applicant’s physical injuries is consistent with the MIG. I note that the respondent’s submissions described the applicant’s pain complaints as minimal. I find this description is inconsistent with the medical records of Dr. Ajisafe; yet, the respondent’s assessor submitted the applicant was exaggerating her symptoms as outlined below at paragraph [27].

26The respondent submitted that it’s assessor Dr. Rubenstein, psychologist, in his psychological assessment dated October 22, 2024, approximately four months prior to Dr. Wilderman’s report, stated that “…absent an accident-related psychological impairment, the claimant would not be removed from the MIG.” I find that Dr. Rubenstein, psychologist, comments on the applicant’s physical injury to be well outside his scope of qualification and expertise and assign less weight to his evidence in regard to the applicant’s physical condition.

27I note that Dr. Rubenstein found the applicant did not meet any DSM criteria for a diagnosis and therefore no psychological impairment could be attributed to the accident. He stated the applicant was not reliable historian and magnified her symptoms. I contrast this with the finding of Dr. Wilderman who reported the applicant described her base pain as 6 out of 10 and found her symptom reporting not to be amplified. I do not find Dr. Rubenstein’s comment that the applicant is exaggerating her physical medical condition persuasive as it runs contrary to the well documented complaints to her physician over a number of years. I also find the applicant’s description of pain at 6 out of 10 as reported to Dr. Wilderman to be inconsistent with Dr. Rubenstein’s comment that the applicant is exaggerating her symptoms. I give greater weight to the evidence of Dr. Wilderman due to the detail of his objective and subjective findings, plus the care he demonstrated by not exceeding his expertise when describing the application of the BAI, BDI-II, and PDD-I-5 tools.

28I find on a balance of probabilities, for the above stated reasons that the applicant’s injury falls outside the MIG due to CPS with functional impairment.

Are the applicant entitled to a non-earner benefit of $185.00 per week from April 18, 2022 to February 1, 2024?

29I find the applicant is entitled to NEB of $185.00 per week from April 18, 2022 to February 1, 2024.

30Pursuant to section 12 of the Schedule, the applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEB. The test for NEBs involves a consideration of the applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the applicant to NEB. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, (“Heath”), she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

31The applicant submitted that she has is entitled to NEB as she suffered a complete inability to carry on a normal life as a result of the accident. When comparing pre-accident and post-accident activities, the applicant submitted that her life circumstances have significantly changed to the extent she is substantially prevented from engaging in her activities prior to the accident.

32The applicant relies upon the report of Dr. Wilderman and his analysis of activities of normal living pre-accident and post-accident. Dr. Wilderman noted that pre-accident the applicant participated in going out with friends, going to restaurants and shopping; she was independent in all housekeeping/home maintenance functions as well as personal care. Post-accident the applicant has lost interest in going out with friends, restaurants and shopping. She requires assistance with meal preparation, unable to clean the kitchen including the oven and fridge, assistance needed with sweeping and dusting, unable to mop or vacuum, unable to do laundry unable to move furniture or window clean, assistance required for bedmaking, garbage disposal and grocery shopping, relying on family to complete/assist with tasks. Her personal self care is limited in dressing and showering, requiring her husband to wash her hair. Dr. Wilderman found these physical limitations in addition to the CPS injury detailed in paragraphs [20] through [24] of this decision.

33The applicant further submitted Dr. Wilderman found in his report that the applicant has sustained serious permanent impairment of physical functions with CPS. The impairment of functions is to the degree that her limitations are serious and interfere with a substantial amount of her pre-accident activities of daily living and is associated with permanent symptoms including severe pain, sleep disorder, impairment in household duties and personal care; this substantially impairs her activities of daily living. Dr. Wilderman concluded because of these impairments and limitations the applicant suffers from a complete inability to carry on a normal life. I find the evidence of Dr. Wilderman detailed and well reasoned, I am able to give Dr. Wilderman’s evidence weight.

34The respondent submits the applicant does not meet the NEB test and relies upon the report of Dr. Hanna, general physician, dated January 18, 2023. Dr Hanna found the applicant’s limitations to be inconsistent with her soft tissue injuries and that the applicant did not suffer from a complete inability to carry on a normal life. I find Dr. Hana’s comments and findings to be conclusionary without detailed analysis to support his findings. I note that Dr. Hanna assessed the applicant for NEB on June 14, 2022, and the report of January 18, 2023 is a paper review.

35The respondent also relies upon the report of psychological of assessment of Dr. Rubenstein, psychologist, dated October 22, 2024 previously referred to at paragraphs [25] and [26] of this decision. His opinion was rooted in the applicant rating symptoms rarely found with bona fide neurological disorders. Dr. Rubenstein concluded that the current psychological examination failed to confirm any identifiable psychological impairment related to the accident. However, I find that Dr. Rubenstein did not reference any specific details of his examination or specific behaviours to support his conclusions; I find the report is absent of any detail of why the applicant’s rating of symptoms caused Dr. Rubenstein to reach his conclusions. I find the evidence of Dr. Rubenstein lacks sufficient detail to support his conclusions and I assign it less weight.

36I find the applicant has presented specific detailed evidence detailed at paragraph [32] and [33] to support that she suffers a complete inability to engage in substantially all activities in which she would ordinarily engage. I find that the applicant discharged her onus and find that she is entitled to a NEB from April 18, 2022 to February 1, 2024.

Are the applicant entitled to $241.19 ($1,300.00 less $1,058.81 approved) for physiotherapy services, $3,089.36 for chiropractic services, $4,000.24 for chiropractic services, $2,217.00 for a chronic pain assessment and $2,486.00 for a psychological assessment?

37I find the applicant has not discharged her onus that the balance of the treatment plan in 5 iii and the treatment plans described in paragraphs 5 iv, v, vi and vii are reasonable and necessary.

38Pursuant to section 15 of the Schedule, the respondent is liable to pay for all reasonable and necessary expenses incurred by or on behalf of the insured persons a result of an accident. It is the applicant’s responsibility to prove the medical benefits claimed are reasonable and necessary.

39I find the applicant made no submissions relating the injuries of the applicant to the treatment plans in issue. It is not the role of the Tribunal to construct submissions relating to the applicant’s specific injuries, as to do so would effectively descend the role of the Tribunal into advocacy for the applicant and be a breach of procedural fairness. I find the applicant did not discharge her onus that the balance of the treatment plan in paragraph 5 iii and the treatment plans outlined in paragraphs 5 iv, v, vi and vii are reasonable and necessary.

40Given the applicant has not discharged her onus, it is not necessary to consider the submissions of the respondent.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to the award for NEB.

Award

42The 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.

43I find the applicant made no submissions for an award other than the claim for award. I decline to order an award in the absence of submissions by the applicant.

ORDER

44The Tribunal orders as follows:

i. The applicant’s injuries are outside the MIG.

ii. The applicant is entitled to NEB of $185.00 per week from April 18, 2022 to February 1, 2024.

iii. The respondent is not liable to pay the balance of the treatment plan in paragraph 5 iii and the treatment plans outlined in paragraphs 5 iv, v, vi and vii.

iv. The respondent is not liable for an award.

v. The applicant is due payment of interest from the respondent for NEB.