Citation: Maki v Intact Insurance Company, 2026 ONLAT 25-000219/AABS

Licence Appeal Tribunal File Number: 25-000219/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:

Ahmed Maki

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Roderick Walker

APPEARANCES:

For the Applicant:

Lawrence Calenti, Counsel

For the Respondent:

Kristen Bailey, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Ahmed Maki, the applicant, was involved in an automobile accident on September 26, 2024, 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 Intact Insurance Company the respondent 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 limit?

ii. Is the applicant entitled to $3,585.61 for chiropractic services, proposed by North Toronto Rehab in a treatment plan dated October 28, 2024?

iii. Is the applicant entitled to $2,482.43 for chiropractic services, proposed by North Toronto Rehab in a treatment plan dated February 7, 2025?

iv. Is the applicant entitled to $1,489.65 for chiropractic services, proposed by North Toronto Rehab in a treatment plan dated March 4, 2025?

v. Is the applicant entitled to $2,486.00 for a physiatry assessment, proposed by Access Rehab in a treatment plan dated February 18, 2025?

vi. Is the applicant entitled to $993.26 ($1,277.08 less $283.82 approved) for chiropractic services, proposed by North Toronto Rehab in a treatment plan dated April 12, 2025?

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

RESULT

3The applicant’s injuries are predominantly minor in nature and therefore subject to treatment within the monetary limits of the MIG.

4No treatment plans are payable.

5No interest applies as no benefits are owing.

Analysis

MIG

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.

8In this case, the applicant submits that he should be removed from the MIG due to his pre- existing injuries.

ANALYSIS

The applicant is not removed from the MIG because of his pre- existing injuries

9I find that the applicant is not removed from the MIG because of his pre-existing injuries.

10The applicant relies on the clinical notes and records (“CNRs”) of his family doctor Dr. P. Nijmeh from September 25, 2021, to May 3, 2025, the CNRs of North Toronto Physiotherapy, and a s. 25 report of Dr. Chen, Physiatrist, dated May 29, 2025, to support his position.

11The respondent relies on its s. 44 assessor Dr. H. Khan , Physiatrist, and his report dated March 13, 2025, where Dr. Khan states that the applicant’s pre-existing injuries are minor in nature and have completely recovered. The respondent also submits that the applicant has failed to meet his onus, since the applicant has not led evidence that his pre-existing injuries were documented by a health care professional prior to the accident.

Summarizing the positions of the parties

12The applicant argues that he had documented pre-existing right shoulder and back conditions prior to the September 24, 2024 accident. CNRs from the applicant’s family physician, Dr. P. Nijmeh, confirm that the applicant was assessed on September 16, 2024, ten days prior to the accident for right shoulder pain, which was diagnosed as rotator cuff tendinitis. The applicant submits that medical records document tenderness, reduced range of motion, and functional limitation. The applicant’s pain was described in the T10-12 & L3-5 regions of his spine. Treatment included soft tissue therapy and heat. Additional treatments were provided by North Toronto Physiotherapy on June 10, 21, July 5, 19, August 12, September 6, and a final visit on October 20, 2024. The applicant also submits that he had a long-standing history of lower back pain, for which he received chiropractic treatment beginning in June 2024 and continuing in the months leading up to the accident.

13The applicant submits that following the accident, the medical evidence consistently demonstrates that the pre-existing conditions would preclude maximal recovery if the applicant were kept within the MIG. The applicant also submits that Dr. Nijmeh’s post-accident assessments note increased neck, back, and shoulder pain, reduced range of motion, sleep disturbance, and functional impairment. The applicant’s condition was described as acute or myofascial pain, and Dr. Nijmeh specifically noted that the right shoulder symptoms which had been improving prior to the accident were worsened following the motor vehicle collision.

14The applicant submits that Dr. Nijmeh, who assessed the applicant both before and after the accident, opined that the pre-existing right shoulder and back conditions, and their post-traumatic aggravation, prevent the applicant from achieving maximal medical recovery if treatment is limited to the MIG. Dr. Nijmeh diagnosed neck strain, right shoulder strain/tendinitis, back strain, headaches, and sleep disruption arising from the accident and affirmed that treatment beyond the MIG is required.

15The applicant argues that the s. 25 assessor Dr. H. Chen, Physiatrist, who conducted a comprehensive review of the applicant’s medical records and history in a report dated, May 29, 2025. Dr. Chen diagnosed prior right shoulder dysfunction and prior back dysfunction with post-traumatic aggravation, myofascial injuries, and a chronic pain disorder with associated psychological impacts. Dr. Chen concluded that the applicant’s pre-existing shoulder and back conditions, as aggravated by the September 2024 accident, would prevent maximal medical recovery if the applicant were restricted to MIG-limited treatment.

16The respondent submits that the applicant’s injuries fall within the MIG and that the applicant has failed to meet the statutory test under s. 18(2) of the Schedule for removal from the MIG.

17The respondent submits that the applicant did not seek medical care until September 27, 2024, three days after the accident, at which time he reported neck, back, and shoulder pain and was diagnosed by his family doctor, Dr. Nijmeh with soft tissue injuries. He continued working, took no medication, remained independent in personal care, and completed his pre-accident activities, albeit with some pain. The respondent suggests that these functional reports are consistent with minor injuries.

18The respondent further argues that the only independent medical assessment conducted after the accident but before the subsequent May 11, 2025, accident, was performed by Dr. H. Khan, Physiatrist. In his s. 44. report, Dr. Khan diagnosed a WAD II injury and strain/sprain injuries of the thoracic spine, lumbar spine, and bilateral shoulders and he concluded that the injuries were minor, with a good prognosis for recovery within the MIG. Dr. Khan further opined that the applicant’s pre-existing right shoulder condition was improving prior to the accident and was not objectively exacerbated by it, noting better range of motion at the time of his examination than was documented pre-accident. Dr. Khan maintained his opinion after reviewing the subsequent records, including Dr. Nijmeh’s Questionnaire about the applicant’s injuries.

19Further, the respondent acknowledges the existence of a documented pre-existing right shoulder condition; however, it submits that the applicant has not provided compelling evidence that this condition would prevent maximal recovery if confined to the MIG. The respondent states that the CNR entry on September 16, 2024, reflects only a single pre-accident complaint of shoulder pain shortly before the accident on September 26, 2024, with normal x-ray findings. The respondent submits that there are no pre-accident medical records documenting low back pain, and the respondent suggests that the applicant’s own submissions alleging pre-existing back pain are not corroborating evidence. No treating chiropractic records were produced from the applicant to establish diagnosis, severity, or functional impact of the accident.

20The respondent further argues that the Tribunal has consistently held that the mere existence of a pre-existing condition, or evidence of exacerbation alone, is insufficient to justify removal from the MIG. The applicant must explain how the pre-existing condition would impede recovery within the MIG, which has not been done.

21Accordingly, the respondent submits that Dr. Nijmeh’s Questionnaire was drafted by applicant’s counsel to support removal from the MIG and is unsupported by reference to contemporaneous clinical notes, and contradicts his own records, which do not document ongoing shoulder complaints in the months post-accident. The respondent suggests that the questionnaire provides only conclusory answers and fails to explain how the pre-existing condition would prevent recovery within the MIG. The respondent cites Tribunal decisions where the Tribunal has previously rejected similar questionnaire evidence from Dr. Nijmeh in Jaafar v. Co‑operators General Insurance Company, 2024 CanLII 102097 (ON LAT), at para 20., where it states the Dr. Nijmeh’s questionnaire is not credible evidence.

22Finally, the respondent argues that Dr. Chen is not a treating practitioner, and he assessed the applicant only once, after a subsequent accident that exacerbated his symptoms. His opinion relies heavily on Dr. Nijmeh’s Questionnaire which the respondent states lack credibility, and he does not adequately account for the impact of the May 2025 accident on his findings. The respondent argues that like Dr. Nijmeh, Dr. Chen provides only a bare assertion that the pre-existing conditions prevent recovery within the MIG, without explaining how or why, which does not meet the threshold of compelling evidence. I agree.

Conclusions

23I find that the applicant first sought treatment on September 27, 2024, reporting neck, back, and shoulder pain, and was diagnosed with soft tissue injuries. At a section 44 examination on March 1, 2025, Dr. Khan diagnosed WAD II and strain/sprain injuries affecting the thoracic and lumbar spine and bilateral shoulders. Dr. Khan opined that the impairments were minor in nature and subject to the Minor Injury Guideline (MIG) and further concluded that the applicant’s pre-existing right shoulder condition would not prevent maximal medical recovery.

24The applicant subsequently reported an exacerbation of symptoms following a further motor vehicle accident on or about May 11, 2025, which introduces an intervening event relevant to the assessment of causation and ongoing impairment.

Pre-existing Condition Analysis under s. 18(2)

25While there is documentation confirming a pre-existing right shoulder condition, including a diagnosis of rotator cuff tendinitis on September 16, 2024, I find that there is no corroborated medical evidence establishing pre-accident low back pain. I am satisfied that the first requirement (or “first prong”) under section 18(2) of the Schedule is met, in that a pre-existing medical condition has been established. However, the applicant has not provided sufficiently persuasive or compelling medical evidence to demonstrate that this pre-existing condition would prevent maximal medical recovery within the confines of the MIG.

Weight and Reliability of Medical Opinions

26The May 3, 2025, questionnaire from Dr. Nijmeh and the May 29, 2025, section 25 report from Dr. Chen are largely conclusory in nature and do not provide a detailed analysis or clinical rationale explaining why treatment limited to the MIG would be insufficient in this case. Dr. Chen’s opinion is further diminished in weight because it was rendered after the subsequent motor vehicle accident of May 11, 2025, thereby introducing potential confounding factors; and it relies, at least in part, on Dr. Nijmeh’s questionnaire, which itself lacks sufficient analytical underpinning.

27In contrast, I assign significant weight to Dr. Khan’s opinion, as it constitutes the only independent medical assessment conducted prior to the subsequent accident and includes a clear diagnosis and reasoned conclusions regarding MIG applicability. Accordingly, I find that the applicant has not met the second requirement under section 18(2).

28Considering the totality of the evidence, and on a balance of probabilities, I find that the applicant has not satisfied the mandatory requirements of section 18(2) of the Schedule. Specifically, the applicant has failed to establish that the pre-existing condition would prevent recovery within the MIG.

29As I have found that the applicant is remaining in the MIG, it is not necessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No interest is not awarded because no benefits are payable.

ORDER

31I find that:

i. The applicant’s injuries are predominantly minor in nature and therefore subject to the treatment within the monetary limits of the MIG.

ii. No treatment plans are payable.

iii. No interest applies as no benefits are owing.

iv. The application is dismissed.