Smai v. The Personal Insurance Company, 2026 CanLII 51002

Smai v. The Personal Insurance Company, 2026 CanLII 51002

Citation: Smai v. The Personal Insurance Company, 2026 ONLAT 25-001982/AABS

Licence Appeal Tribunal File Number: 25-001982/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:

Adam Smai

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Maka Metreveli, Paralegal

For the Respondent:

Brittanny K Tinslay, Counsel

HEARD: In Writing

May 21, 2026

OVERVIEW

1Adam Smai, the applicant, was involved in an automobile accident on July 15 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, The Personal 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 $2,469.11 for Chiropractic Services proposed by 101 Physio in a treatment plan/OCF-18 ('plan') dated September 22, 2020?

iii. Is the applicant entitled to $2,659.11 for Chiropractic Services proposed by 101 Physio in a plan dated March 12, 2021?

iv. Is the applicant entitled to $2,613.91 for Chiropractic Services proposed by 101 Physio in a plan dated May 13, 2021?

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

RESULT

3The applicant has not met his onus to demonstrate he should be removed from the MIG, and he is therefore subject to treatment within the $3,500 limit.

4As the applicant is being held to the MIG, it is not necessary for me to analyze the treatment plans to determine if they are reasonable and necessary.

5The applicant has not demonstrated that he is entitled to the treatment plans due to the respondent’s non-compliance with s. 38(8) of the Schedule.

6No interest is payable.

7The application is dismissed.

ANALYSIS

Should the applicant be removed from the MIG due to chronic pain?

8The applicant has not met his onus to demonstrate that he should be removed from the MIG due to chronic pain.

9Section 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.”

10An 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.

11Although it is unclear from the applicant’s submissions, it appears that the applicant submits he should be removed from the MIG on the grounds of chronic pain. The applicant argues that he is suffering from neck, back and predominantly knee pain, which has persisted for several years. To support his case, he relies on the Clinical Notes and Records (CNRs) of his family physician, Dr. Bertun Ung, Orthopedic Surgeon Dr. Miah Hahn, and Treatment Provider 101 Physio.

12The respondent argues that the applicant has a history of chronic knee and foot pain which long predates the accident, due to flat feet. It further argues that the applicant does not meet the criteria to be removed from the MIG due to chronic pain with a functional limitation. Furthermore, in their submissions, the respondent argued that the applicant’s knee pain is caused by overuse, and that the applicant is a member of his high school basketball team.

13While I can accept that the applicant may have knee pain, I am not convinced by the applicant’s evidence that he meets the criteria to be removed from the MIG due to chronic pain with a functional limitation.

14The applicant first visited his GP, Dr. Ung, on July 22, 2020. I find the physician notes are handwritten and I cannot reliably read them. However, I do note that the first clearly legible reference to the doctor for knee pain is February 16, 2022, nearly 19 months after the accident. This indicates that the pain is not directly attributable to the accident in question.

15Again, despite legibility concerns, I do note a reference to a foot splint in the CNRs dated August 20, 2019. This supports the respondent’s argument that there is a history of foot and knee concerns.

16The CNRs from 101 Physio appear to end May 20, 2021. This appears to indicate the applicant had stopped attending physiotherapy in May 2021, but made a complaint of knee pain 9 months later, in February 2022. I have not been led to evidence that the applicant was continuing to struggle with foot or knee pain in the time frame between May 2021 and February 2022.

17The Orthopedic Surgeon Dr. Hahn diagnosed the applicant in March 2023 with patellofemoral syndrome, otherwise known as runner’s knee. Critically, the CNRs from Dr. Hahn do not indicate that the car accident is the cause of the pain. Furthermore, as I indicated in paragraph 12, the respondent has submitted that the applicant is a member of his high school basketball team. The applicant has not refuted this argument in a reply submission. I find this indicates that the applicant’s foot and knee pain is not severe enough to affect the applicant’s daily living, or alternatively, that the pain is not clearly attributable to the accident.

18An MRI conducted May 8, 2022 reports that there were no tears to the meniscus or ligaments on either knee. There is a reference to a ‘low grade partial injury’ due to some edema on the proximal anterior cruciate ligament. Such an injury in and of itself would not merit removal from the MIG.

19There is no diagnosis of chronic pain in the medical evidence. While a diagnosis of chronic pain is not required to be removed from the MIG, I find it to be of significance that the evidence does not indicate either consistent reporting of accident-related pain, or a diagnosis of chronic pain. In addition, the applicant has not provided submissions on the criteria for chronic pain in the AMA Guidelines for the Evaluation of Permanent Impairment. The AMA Guidelines are not incorporated into the Schedule, but the Tribunal has found that they are a useful analytical tool for assessing chronic pain.

20I find that ongoing pain alone is insufficient to remove the applicant from the MIG, as the pain must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. I find that the applicant has not proved on a balance of probabilities that his ongoing pain was of a significant level or was accompanied by some functional impairment or disability. I find that there is minimal evidence provided by the applicant to demonstrate that his pain prevented him from pursuing work, family or recreational needs.

21For these reasons, I find the applicant has not, on the balance of probabilities, met his onus to demonstrate he should be removed from the MIG due to chronic pain.

22As I have ruled that the applicant is being held to the MIG, it is not necessary for me to analyze the treatment plans to determine if they are reasonable and necessary.

Is the applicant entitled to payment of the treatment plans pursuant to s. 38(11) of the Schedule?

23The applicant is not entitled to the treatment plans in dispute the insurer’s denials comply with s. 38(8).

24Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

25The applicant argues that the respondent has violated s. 38(8) when they denied the treatment plans in dispute, by relying on ‘boilerplate’ language and not providing a valid medical reason for the denial.

26The respondent argues they made multiple attempts to receive medical evidence from the applicant without success, and that they “cannot be held to a standard whereby there is a requirement to fabricate a medical reason where none exists due to a complete lack of medical documentation.”

27I agree with the respondent. I have reviewed the denial letters in dispute and find they are compliant with s. 38(8).

28I have reviewed three denial letters from the respondent to the applicant, dated September 26, 2020, March 17, 2021, and May 21, 2021. All three letters clearly identify the treatment plan and provider and contain the same reasons for the denial. The letters state “I reviewed your list of injuries and see no pre-existing conditions described. In comparing your injuries to the criteria in the Minor Injury Guideline, I've concluded your injuries are minor and fall within the Guideline. I am unable to approve the recommendations because they are not appropriate for this type of injury.”

29The applicant argues this statement is vague and boilerplate, and does not comply with the Schedule because it does not state what evidence the insurer is relying upon to make that decision.

30I find that the respondent’s reference to the MIG and a “minor” injury is a valid medical reason for a denial. With respect to the applicant’s argument that the respondent did not state what evidence it relied on, I find that the respondent cannot be expected to refer to evidence which does not exist. The applicant does not dispute via response submission that at the time the treatment plans had been denied, he had not yet provided medical records to the respondent.

31I find the argument from the respondent – that they did not have any medical evidence – especially persuasive because the evidence that the applicant himself has relied upon in this hearing postdates the denial letters. The CNRs with reports of knee pain are dated a minimum of 8 months after the last denial letter was sent.

32The applicant has argued that it should be obvious the applicant deserved chiropractic treatment due to the diagnosis of professionals like Dr. Hahn. However, Dr. Hahn’s diagnosis came two years after the denial letters were issued.

33I find that all three denial letters offered a principled rationale based fairly on the applicant’s file and the information that had been available at the time of the denial.

34For these reasons, I find on the balance of probabilities that the applicant has not met his onus to demonstrate he should be entitled to the treatment plans in dispute due to s. 38(8) non-compliance by the respondent.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

ORDER

36The application is dismissed:

i. The applicant has not met his onus to demonstrate he should be removed from the MIG, and he is therefore subject to treatment within the $3,500 limit.

ii. As the applicant is being held to the MIG, it is not necessary for me to analyze the treatment plans to determine if they are reasonable and necessary.

iii. The applicant has not demonstrated that he is entitled to the treatment plans due to a procedural error by the respondent.

iv. No interest is payable.