Shurouq Shamsa v. Co-operators General Insurance Company, 2026 CanLII 53784

Licence Appeal Tribunal

Citation: Shamsa v. Co-operators General Insurance Company, 2026 ONLAT 25-001684/AABS

Licence Appeal Tribunal File Number: 25-001684/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:

Shurouq Shamsa

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Bianca Crocetti, Paralegal

For the Respondent: Jessica Telfer, Counsel

HEARD: By way of written submissions

OVERVIEW

1Shurouq Shamsa, the applicant, was involved in an automobile accident on January 25, 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, 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 limit (MIG)?

2. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 22, 2023 to date and ongoing?

3. Is the applicant entitled to $2,039.60 ($4,239.60 less $2,200.00 approved) for chiropractic services, proposed by Body Dynamics in a treatment plan (“OCF-18”) dated February 8, 2023?

4. Is the applicant entitled to $2,331.88 ($3,842.10 less $1,510.22 approved) for chiropractic services, proposed by Body Dynamics in an OCF-18 dated July 4, 2023?

5. Is the applicant entitled to $2,486.00 for an Orthopaedic Assessment, proposed by Complete Balance Health Care in an OCF-18 dated March 17, 2023?

6. Is the applicant entitled to the assessments proposed by Body Dynamics, as follows:

i. $2,234.00 for a Neurological Assessment, in an OCF-18 dated June 20, 2023; and

ii. $2,417.49 for a Psychological Assessment, in an OCF-18 dated September 19, 2023?

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

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

RESULT

3The applicant’s injuries are predominantly minor as defined by the Schedule.

4As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

5The respondent’s denial letters are complaint with s. 38(8) of the Schedule.

6The applicant is not entitled to an NEB, interest, or an award.

ANALYSIS

Minor Injury Guideline

7I find that the applicant has not proven, on a balance of probabilities, that his accident-related injuries warrant removal from the MIG.

8Section 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.”

9An 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.

10The applicant submits that as a result of the accident, she has sustained headaches, tenosynovitis, supraspinatus intrasubstance tear, and pain in the neck and shoulders, which has become chronic.

Chronic Pain

11I find that the applicant has not proven, on a balance of probabilities, that she suffers from chronic pain with a functional limitation such that she should be removed from the MIG.

12The applicant submits that she presented to her family doctor, Dr. Ali Al-Hellawi, on a number of occasions post-accident complaining of headaches, pain in her neck and shoulder. The applicant submits that Dr. Al-Hellawi classified her pain as chronic on April 9, 2024.

13The respondent submits that the applicant’s ‘chronic pain’ stems from complaints prior to the accident, and the applicant’s submissions are silent on how she meets the criteria for chronic pain as articulated by the Tribunal.

14I have reviewed the handwritten CNRs of Dr. Al-Hellawi and find that a CNR dated December 6 (although the year is cut off, it appears to be 2022 given the sequence of the clinical records), states “neck pain, constent [sic], shoulder joints discomfort, hands discomfort.” An x-ray of the left and right shoulder for a clinical history of joint pain, dated December 8, 2022, found no significant abnormality. An x-ray of the cervical spine and thoracic spine for a clinical history of joint pain, dated December 8, 2022, reported loss of the normal cervical lordosis and mild thoracic scoliosis. A CNR of Dr. Al-Hellawi dated December 16, 2022, notes “X-ray, cspine OK, tspine OK, shoulder OK, most likely muscle spasms” and the applicant was prescribed baclofen. A CNR of Dr. Al-Hellawi, dated January 27, 2023, two days post-accident notes “chronic” “back pain” and “? fibromyalgia” within the same entry. The accident is not referenced.

15A CNR, dated February 3, 2023, indicates that the applicant reported the accident to Dr. Al-Hellawi and complained of headache, neck pain, and right shoulder joint pain. Dr. Al-Hellawi reports the applicant’s range of motion in the right shoulder is normal. Dr. Al-Hellawi opines multiple soft tissue injuries. The applicant did not complain of left shoulder pain during this visit with Dr. Hellawi. Musculoskeletal ultrasound of the right shoulder, dated February 7, 2023, reported a normal examination.

16It is true that a CNR of Dr. Al-Hellawi, dated April 9, 2024, indicates “Lt shoulder pain chronic pain”, however, the accident is not referenced and as indicated prior, the applicant did not complain of left shoulder pain to Dr. Hellawi as a result of the accident during her initial accident-related visit on February 3, 2023, nor on subsequent visit dated March 1, 2023. I also note that an earlier CNR of Dr. Al-Hellawi, dated March 14, 2024, reports “Lt shoulder joint + 2 weeks”. The accident is not referenced in this clinical record. I am not directed to a CNR of Dr. Al-Hellawi between March 1, 2023 – the last report of accident-related complaints – and the CNR dated March 14, 2024, wherein the applicant presented with left shoulder pain.

17Based on the medical records tendered by the applicant, the next time the applicant complained of right shoulder pain was to Dr. Al-Hellawi on November 26, 2024. Dr. Al-Hellawi’s note indicates “Rt shoulder joint pain, 1 month, pt [sic] was @ the gym.” This is echoed by the CNR of walk-in practitioner, Dr. Hoda Rizkalla, dated January 4, 2025, wherein the applicant presented with complaints of “Rt shoulder pain and limited movement for approximately one month”. The accident is not referenced in either CNRs of Dr. Al-Hellawi or Dr. Rizkalla.

18The applicant’s submissions are silent with respect to her pre-accident complaints of neck and shoulder pain. The applicant has also not directed me to medical evidence that would support she has experienced chronic headaches as a result of the accident, nor a medical opinion diagnosing same. As such, I am unpersuaded that the applicant’s alleged chronic neck and shoulder pain are accident-related, nor am I persuaded that the applicant has sustained chronic headaches as a result of the accident.

19As such, I find that the applicant has not established, on a balance of probabilities, that she suffers from accident-related chronic pain with a functional limitation such that she should be removed from the MIG.

Physical Injuries

20I find that the applicant has not met her evidentiary onus to demonstrate that she suffers from physical injuries warranting removal from the confines of the MIG.

21The applicant submits that as a result of the accident she has sustained headaches; sprain and strain of the cervical spine, thoracic spine, lumbar spine, sacroiliac joint, shoulder joint, elbow, and ribs and sternum; radiculopathy cervical region; sleep disorders; chest pain; nervousness, anxiety disorders, dizziness, and giddiness, malaise and fatigue; and concussion. To support this, the applicant relies on the disability certificate (OCF-3) completed by chiropractor, Dr. Solmaz Zanjani, dated February 8, 2023.

22I am unpersuaded by the reported ‘concussion’ within the OCF-3 completed by Dr. Zanjani. It is not within the scope of practice for a chiropractor to diagnose a concussion and the applicant has not directed me to any other medical opinion that opines on concussion or concussion related symptoms as a result of the accident. I note that while the applicant made an initial complaint of headaches to Dr. Al-Hellawi on February 3, 2023, Dr. Al-Hellawi does not diagnose a concussion, nor does this practitioner refer the applicant to a neurologist for concussion related symptoms. While the subsequent CNRs of Dr. Al-Hellawi report headache complaints with respect to illness and IBS, I find that none of these attendances are in relation to the accident.

23With respect to the applicant’s shoulders, ultrasound of the left shoulder, dated March 15, 2024, reported long head of biceps tenosynovitis – mild, and tiny supraspinatus intrasubstance tear. However, as I have found above, the applicant has not established that the left shoulder injury is accident related.

24The remainder of the physical injuries the applicant purports to have sustained as a result of the accident are soft tissue sprains and strains which fall within the definition of a “minor injury”.

25As such, I am not satisfied on a balance of probabilities that the applicant has sustained an accident-related physical injury that falls outside of the definition of a minor injury.

Psychological Impairment

26I find that the applicant has not established, on a balance of probabilities, that she suffers from an accident-related psychological impairment that would warrant removal from the MIG.

27Although the applicant didn’t specifically submit that she should be removed from the MIG due to psychological impairment, the applicant argues that she has sustained psychological impairments such as anxiety disorders, and nervousness. Therefore, keeping in mind the consumer protection mandate of the Schedule and the fact that the respondent has also made submissions on this issue indicating that it had notice, I have considered whether the applicant should be removed from the MIG due to psychological impairment.

28The CNR of Dr. Al-Hellawi, dated January 27, 2023 notes “stress anxiety”. As I have indicated above, this clinical note does not reference the accident, and it is not clear why the applicant reported these complaints. I am unpersuaded that this psychological complaint is accident-related in light of the fact that the applicant first reported accident-related symptoms on February 3, 2023, and this CNR entry is devoid of psychological complaint. The applicant has not directed me to any further CNR of Dr. Al-Hellawi that reports psychological complaint, referral to psychological treatment, or prescription for psychotropics as a result of the accident. The applicant has not pointed me to any other corroborating evidence to support that she has sustained a psychological impairment as a result of the accident.

29I am also unpersuaded by the psychological impairments reported within the OCF-3 completed by Dr. Zanjani because, in my view, opining on psychological impairment is outside the scope of a chiropractor. Moreover, as I have indicated above, the applicant has not directed me to any corroborating medical evidence to support the psychological sequela listed in the OCF-3.

30As such, I find that the applicant has not provided medical evidence of significance to demonstrate, on a balance of probabilities, that she suffers from a psychological impairment as a result of the accident that would warrant removal from the MIG.

Non-Earner Benefit

31I find that the applicant is not entitled to an NEB of $185.00 per week from February 22, 2023 to date and ongoing.

32Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

33The applicant submits that she has proven on a balance of probabilities that she has suffered a complete inability to carry on her normal life as a result of the accident. The applicant submits that this is supported by her countless reports of severe and limiting pain, and her reports of inability to perform pre-accident tasks. The applicant relies on the OCF-3 completed by chiropractor, Dr. Solmaz Zanjani, dated February 8, 2023, wherein it is indicated by way of checkbox that the applicant has suffered a complete inability to carry on a normal life.

34I find that reliance on an OCF-3 alone is not sufficient to establish entitlement to NEBs. While the OCF-3 briefly states that the applicant has “difficulty with self-care activities, house chores, taking care of her 3 children, etc. as well as sleep and psychological issues”, the applicant has not provided submissions of her pre-accident activities of daily living, or more importantly, demonstrated how her engagement in these activities has changed as a result of the accident. Moreover, in her submissions, the applicant did not identify her pre-accident activities or provide evidence of how she is continuously prevented from engaging in said activities as required by Heath. In the absence of this information, I am unable to adequately compare her pre- and post-accident capabilities with respect to the activities she ordinarily engaged in.

35I acknowledge that the applicant submits that she reported to walk-in physician, Dr. Hoda Rizkalla, on January 4, 2025, that “pain is exacerbated when elevating her arm in any task, such as holding up a phone to her ear for longer than a minute.” However, I have reviewed this CNR and note that the accident is not mentioned and Dr. Rizalla reported that the applicant “reports experiencing Rt [sic] shoulder pain and limited movement for approximately one month”. I am not persuaded that this entry is accident related, nor do I find that this satisfies the principles in Heath. The applicant has not directed me to any additional or compelling evidence that speaks to an impairment that continuously prevents her from engaging in substantially all of the activities she ordinarily engaged prior to the accident.

36As such, I find that the applicant has not proven, on a balance of probabilities, that she is entitled to a NEB of $185.00 per week from February 22, 2023 to date and ongoing.

37As I have found the applicant remains within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

38However, the applicant submits the respondent denied all treatment plans in dispute on the basis that her injuries are considered minor in nature. It is the applicant’s position that the statements provided in the denial letters are merely boiler plate responses to the submission of the OCF-18s and provide an opinion of the injuries from the adjuster’s perspective, rather than a medical one.

39Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

40If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

2. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

41I find that the respondent’s denial letters are complaint with s. 38(8) of the Schedule, for the following reasons.

42The denial letter dated February 23, 2023, for the partially approved treatment plan for physical therapy services, dated February 8, 2023, states, among other things:

“The Co-operators has not received any supporting medical evidence to suggest your injuries fall outside the Minor Injury Guidelines, as such, we believe that your impairment may be one to which the Minor Injury Guideline applies. We require objective medical evidence to support that your injuries would fall outside those described in the Minor Injury Guideline (MIG). To date we have not been provided with any medical records from your treatment provider or your legal representative.”

43I find this letter to be clear, that the respondent requires further information from the applicant’s treatment provider or legal representative, as it had not been provided with medical records to establish the applicant’s injury status. I find that this is sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision.

44The denial letter dated July 19. 2023 for the treatment plan for physiotherapy, dated June 17, 2023; the denial letter dated June 30, 2023 for the treatment plan for a neurological assessment dated May 11, 2023; and the denial letter dated October 3, 2023 for the treatment plan dated September 19, 2023, all state the following:

“Your treatment provider has not provided any supporting compelling medical evidence to suggest your injuries fall outside those described in the MIG.

The Co-operators has received your clinical notes and the records from your GP, Dr. Ali Zedan Degan Al-Hellawi, which confirmed on February 3, 2023, you sustained soft tissue injuries from the above noted motor vehicle accident and no further recommendations were made.

Please submit your hospital records along with clinical notes and records from February 3, 2023 to present date for review.”

45The denial letter dated March 29, 2023, for the treatment plan for an orthopaedic assessment, dated March 16, 2023, states:

“It is not clear why an orthopaedic assessment would be required for the injuries sustained in the motor vehicle accident and additional medical documentation is required.

The Co-operators has received your clinical notes and the records from your GP, Dr. Ali Zedan Degan Al-Hellawi, which confirmed on February 3, 2023 you sustained soft tissue injuries from the above noted motor vehicle accident and no further recommendations were made.”

46I find that these denial letters comply with s. 38(8) of the Schedule, because in these letters, the respondent provided a medical reason, that being the opinion of the applicant’s family practitioner. As such, I find that the respondent’s denial was clear and sufficient such that an unsophisticated person could make an informed decision to either accept or dispute the denial. The applicant may disagree with the stated reasons, however, that does not render a denial invalid.

47Given the foregoing, I find that the respondent’s denial letters are compliant with s. 38(8) of the Schedule, and as such, the corresponding treatment plans are not payable pursuant to s. 38(11).

Interest

48As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

49The 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.

50As there are no overdue benefits, the applicant is not entitled to an award.

ORDER

51I find that:

1. The applicant’s injuries are predominantly minor as defined by the Schedule;

2. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The treatment plans are not payable pursuant to s. 38;

3. The applicant is not entitled to an NEB;

4. The applicant is not entitled to interest pursuant to s. 51 of the Schedule;

5. The respondent is not liable to pay an award; and

6. The application is dismissed.