Citation: Enagbare v. Intact Insurance Company, 2026 ONLAT 25-003290/AABS

Licence Appeal Tribunal File Number: 25-003290/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:

Maria Enagbare

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Matthew Frontini

APPEARANCES:

For the Applicant:

Michael Ferrante, Paralegal

For the Respondent:

Olivia Hajdas, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Maria Enagbare, the applicant, was involved in an automobile accident on October 16, 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, Intact 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. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from November 13, 2023, and ongoing?

ii. 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?

iii. Is the applicant entitled to $2,683.04 for chiropractic services, proposed by Ritz Clinic in a treatment plan/OCF-18 dated June 2, 2024?

iv. Is the applicant entitled to $2,825.00 for a chronic pain assessment, proposed by Q Medical in a treatment plan/OCF-18 dated November 25, 2024?

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

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

RESULT

3I find that:

i. The applicant is not entitled to an NEB of $185.00 per week from November 13, 2023, and ongoing;

ii. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit;

iii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary;

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and because it unreasonably withheld or delayed payments to the applicant; and

v. The applicant is not entitled to interest on any overdue payment of benefits.

4The application is dismissed.

ANALYSIS

The applicant is not entitled to an NEB

5I find that the applicant has not established on a balance of probabilities that she is entitled to an NEB or that the respondent breached the notice requirements established by s. 36(4) of the Schedule.

6Section 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 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

7The applicant’s submissions regarding NEB are brief and do not address whether she is substantively entitled to this benefit as a result of her injuries. Rather, the applicant submits that the respondent did not comply with the notice requirements established by s. 36(4) of the Schedule and consequently, she is entitled to payment of this benefit.

8Sections 36(4) and 36(6) of the Schedule set out strict notice requirements for insurers responding to applications for specified benefits such as NEBs, and specific consequences if they fail to comply. Section 36(4) requires an insurer to inform an insured person within ten business days after it receives an OCF-3 whether it agrees to pay for the specified benefit, and, if it does not, to provide the medical and other reasons why it believes the applicant is not entitled to the benefit. Section 36(6) provides that if an insurer does not comply with s. 36(4), the applicant is entitled to payment of the benefit until there has been compliance with proper notice.

9The applicant submits that the respondent’s letter, dated December 6, 2023 (the “Denial Letter”) contravenes s. 36(4) and further submits that the respondent did not provide proper notice until April 17, 2024, when it provided a section 44 report. The applicant does not describe how the Denial Letter contravenes s. 36(4). Rather she simply asserts it does not comply and therefore she is entitled to an NEB from November 13, 2023, and ongoing.

10As an initial matter, it is the applicant’s burden to establish that a notice does not comply with s. 36(4). Here the applicant’s submissions declare that the Denial Letter is non-compliant, but the applicant does not describe the content of the letter or why it is non-compliant. In her reply submissions, the applicant argues that the respondent has not demonstrated how the Denial Letter satisfies s. 36(4). There is no requirement for the respondent to do so when the applicant has not provided a basis to suggest that there is any non-compliance.

11Even if the applicant is correct that the Denial Letter does not comply with s. 36(4), she is only eligible to receive payment until the date when proper notice was given. The applicant’s submissions admit that proper notice was received on April 17, 2024. As such, the applicant cannot receive payment pursuant to s. 36(4) after April 17, 2024, and as such cannot be eligible for the ongoing benefit she is requesting in this application.

12Turning to the Denial Letter itself, there is a dearth of submissions as to why the applicant considers it to be deficient. The applicant asserts:

It is the Applicants [sic] position that she submitted her OCF-1, which was received by Intact as confirmed by their letter of December 6, 2023, and her OCF-3. Therefore, the Respondent did not respond in accordance to Section 36 (4) and as a result the Respondent must pay the benefit as is required by Section 36 (6). It is the Applicant’s position that proper notice was given with the receipt of the Respondent’s Section 44 report via letter dated April 17, 2024.

13The applicant lists seven decisions of the Tribunal, asserting they support her position that the Denial Letter does not comply with s. 36(4) and the respondent is obligated to pay the NEB. Other than providing the citations to these decisions, the applicant has not provided any argument as to how these decisions relate to her case and does not cite to the specific portions of the decisions she believes are relevant to her application. Presumably, the applicant does not consider the Denial Letter to contain sufficient medical reasons, which I will now address.

14The Denial Letter states that there is insufficient medical documentation to support the claim in the applicant’s OCF-3 that she suffers a complete inability to carry on a normal life as a result of her accident-related injuries. The Denial Letter further advises that a s. 44 assessment will be scheduled.

15While the applicant may not agree with the respondent’s determination, that does not mean that the denial contravened section 36(4) by not including medical reasons. As the Ontario Court of Appeal held in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111 the purpose of the denial is to provide a reason for the denial, however that reason does not need to be legally correct. Citing its earlier decision in Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA) (Turner), the Court in Turner noted at para 8:

The purpose of the requirement to give reasons is to permit the insured to decide whether or not to challenge the cancellation. If the reasons given are legally wrong the insured will succeed in that challenge. Requiring that the reasons be legally correct goes beyond both the requirement in the relevant regulation, and the purpose of such a notice.

16The respondent’s denial letter provided a clear reason for the denial of the NEB: there was insufficient medical documentation to demonstrate that the applicant suffers a complete inability to carry on a normal life because of the accident. That is the medical reason for the respondent’s denial. It was open to the applicant to challenge that determination by providing evidence to establish on a balance of probabilities that she meets the legal test for entitlement to an NEB. I find that the Denial Letter complies with section 36(4) of the Schedule.

17As the applicant’s submissions were limited to the alleged invalidity of the respondent’s denial and did not provide any arguments regarding her substantive entitlement to NEB, I find that she has not met her burden to establish entitlement to this benefit.

The applicant is not removed from the MIG

18The applicant is not removed from the MIG. She has not established on a balance of probabilities that she has suffered more than a minor injury because of the accident.

19Section 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.”

20An 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 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.

21The applicant claims that she is entitled to be removed because she: (1) has pre-existing injuries that prevent recovery within the MIG limits; (2) suffers from accident-related psychological impairments; and (3) she suffers from chronic pain as a result of the accident.

The applicant has not established that she has a pre-existing condition that precludes recovery within the MIG limit

22I find that the applicant has not established on a balance of probabilities that she has a pre-existing condition that precludes recovery within the MIG limit as contemplated by s. 18(2) of the Schedule.

23In order for s. 18(2) to apply, the applicant bears the onus of establishing on a balance of probabilities with compelling medical evidence, two separate points: (1) the applicant has a documented condition that pre-dated the accident; and (2) the applicant’s documented pre-existing condition precludes recovery with the MIG limit.

24The applicant’s submissions, particularly her reply submissions, are to the effect that because she has documented pre-existing conditions, she is entitled to be removed from the MIG. However, her submissions and evidence only address the first part of the test under s. 18(2).

25While there is some evidence of documented pre-existing conditions, such as depression, anxiety and back and leg pain and numbness, the applicant has not identified compelling medical evidence that establishes that any pre-existing condition prevents recovery within the MIG limit. Aside from the lack of evidence, the applicant’s submissions do not even assert that her pre-existing conditions preclude recovery with the MIG limit. Consistent with the lack of submissions on this issue, the applicant also has not identified supporting medical evidence to meet this branch of the test under s. 18(2).

26I find that the applicant has not met the second part of the test pursuant to s. 18(2) of the Schedule. She has not established on balance of probabilities that any pre-existing condition precludes recovery if she is kept in the confines of the MIG and therefore she is not entitled to be removed from the MIG on this ground.

The applicant has not established that she suffers a psychological impairment as a result of the accident

27I find that the applicant has not established, on a balance of probabilities, that she sustained a psychological injury as a result of the accident that would warrant removal from the MIG.

28The applicant submits that, among other conditions, her medical records indicate that she has “psychological stress and insomnia” and that her psychological injuries warrant removal from the MIG as they are not “minor” injuries. That applicant does not provide any further argument or reference to evidence in support of her position.

29The respondent notes that the applicant was diagnosed with anxiety in January 2021 and had been taking anti-depression medication for 3 years before the accident. The respondent further notes that the records detail external sources of anxiety affecting the applicant that pre-dated the accident. It also noted references to anxiety after the accident that are unrelated to the accident itself. For example, financial duping in December 2023 and unelaborated “personal concerns” in February 2025. The applicant’s submissions did not direct me to any specific records that link any psychological complaints to the accident.

30I agree with the respondent, the applicant has not identified medical evidence establishing that she suffers a psychological impairment as a result of the accident. As such, I find that she has not established, on a balance of probabilities, that she sustained a psychological injury as a result of the accident that would warrant removal from the MIG.

The applicant has not established that she suffers chronic pain warranting removal from the MIG

31I find that the applicant has not established on a balance of probabilities that she suffers chronic pain with a functional impairment warranting removal from the MIG.

32As set out above, an insured may be removed from the MIG if they suffer from chronic pain because of the accident. However, it is not enough for the insured to have pain over an extended duration of time – there must be chronic pain with functional impairment.

33The applicant submits that the medical evidence establishes that she developed psychological and physical impairments as a result of the accident which establish that she suffers chronic pain warranting removal from the MIG. Her position on this issue is found in two sentences of her submissions:

Ms. Enagbare’s records indicate post-accident chronic pain with neuropathic features, psychological stress and insomnia, superimposed on controlled hypertension. Her course has continued to now be a combination of physical pain and mental-health care in 2024–25. It is the position of the Applicant that the combination of her physical and psychological injuries will remove her from the definition of the Minor Injury guidelines as there is objective medical evidence of sciatica and neuropathic pain; persistent neurological symptoms (ER note: right-sided numbness); psychological impairment via documented anxiety neurosis, insomnia, use of antidepressants, and finally Chronic pain.

34As noted above, the psychological issues and use of antidepressants referenced in the applicant’s submissions pre-date the accident. Once those listed impairments are removed from consideration, the remaining conditions are “chronic pain with neuropathic features”, “neurological symptoms (ER note: right-sided numbness” and “Chronic pain”. The applicant refers to neurological symptoms in an “ER note”, which is dated June 19, 2024. This record does not mention the accident and, under the heading “Past Medical History” lists hypertension and depression.

35Turning to the applicant’s submissions regarding pain, I note that they comprise a recitation of the applicant’s complaints of pain over an extended period. A review of the applicant’s evidence indicates that she began regularly complaining of numbness and pain in her right side, radiating through her lower back and right leg as early as September 2022, over a year prior to the accident. The applicant continued reporting the same types of pain, for example as reflected in the Humber River Hospital Emergency Department note dated June 19, 2024.

36As set out above, persistent complaints of pain over an extended period are insufficient to warrant removal from the MIG. Experiencing pain over a significant length of time is not the only criteria required to establish chronic pain. Medical evidence regarding impaired function is also necessary, which the applicant has not identified in her submissions. In this case, the applicant’s submissions do not reference any functional impairments, focusing instead on existence of reports of pain over an extended period to establish that she should be removed from the MIG.

37As the applicant’s submissions do not identify medical evidence of functional impairment with her reports of pain, I find that she has not established on a balance of probabilities that she suffers chronic pain as a result of the accident that warrants removal from the MIG.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant is not entitled to any disputed benefits, no payments are overdue, and interest does not apply.

Award

39The 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.

40As the respondent did not withhold or delay any payment of benefits, I find that the applicant has not established that she is entitled to an award.

ORDER

41I find that:

i. The applicant is not entitled to an NEB of $185.00 per week from November 13, 2023, and ongoing.

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

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

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664 and

v. The applicant is not entitled to interest on any overdue payment of benefits.

42The application is dismissed.