Licence Appeal Tribunal File Number: 24-013360/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:
Naila Saeed
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Francesco Blasi, Paralegal
For the Respondent: Amanda Lennox, Counsel
HEARD: In Writing
OVERVIEW
1Naila Saeed, the applicant, was involved in an automobile accident on September 3, 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, 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:
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 $4,844.21 for physiotherapy, proposed by Alpha Physio and Rehab Milton in a treatment plan/OCF-18 (“plan”) dated November 7, 2022?
iii. Is the applicant entitled to $4,540.25 for physiotherapy, proposed by Aspexx Physiotherapy in a plan dated August 28, 2023?
iv. Is the applicant entitled to $16,113.73 for a chronic pain program, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated July 13, 2023?
v. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated June 27, 2023?
vi. Is the applicant entitled to $4,165.06 for physiotherapy, proposed by Aspexx Physiotherapy in a plan dated March 23, 2023?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant remains subject to the MIG limits.
4As the applicant is found to be within the MIG, there is no need to assess the reasonableness and necessity of the disputed treatment plans.
5There is no entitlement to interest or an award under s. 10 of Reg 664.
ANALYSIS
The applicant remains subject to the 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.
The applicant did not prove chronic pain with a functional impairment which warrants removal from the MIG.
8I find the applicant has not proven chronic pain with a functional impairment which warrants removal from the MIG.
9The applicant submits that they should be removed from the MIG on the basis of chronic pain with a functional impairment.
10The applicant submits a s. 25 report of Dr. D. Ogilvie Harris, orthopaedic surgeon, as evidence that she suffers from chronic pain with a functional impairment and should be removed from the MIG.
11The respondent submits a s. 44 report from Dr. A Marchie, physiatrist, as evidence that the applicant sustained soft-tissue injuries in the accident and has not proven injuries which warrant removal from the MIG.
12The applicant was assessed by Dr. Ogilvie-Harris on July 13, 2023.
13Dr. Ogilvie-Harris’s report is indicative of an interview. He noted that the applicant was guarded and had widespread tenderness which made the examination difficult to perform and the results difficult to interpret.
14He administered the World Health Organization Disability Assessment Schedule (“WHODAS”), the Pain Disability Questionnaire (“PDQ”), and the Central Sensitization Inventory (“CSI”).
15On the WHODAS, the applicant scored moderate to severe disability in all six domains. On the PDQ, she showed severe pain-related functional limitations and on the CSI she scored consistent with ongoing chronic pain.
16Dr. Ogilvie-Harris also summarized how the applicant meets five of six criteria listed in the AMA Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”)
17While not incorporated into the Schedule, the Tribunal has accepted that the AMA Guides, are a useful analytical took in assessing chronic pain. According to the AMA Guides, at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established.
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
ii. Excessive dependence on health care providers, spouse, or family;
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
iv. Withdrawal from social milieu, including work, recreation, or other social contacts;
v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational need; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
18Dr. Ogilvie-Harris noted that the only criteria that the applicant does not meet is the use of prescription drugs beyond the recommended duration and/or abuse of prescription drugs.
19The applicant was seen by Dr. Marchie on November 18, 2023. Dr. Marchie conducted a physical examination on the applicant. Dr. Marchie found that the applicant suffered soft-tissue injuries in the accident which fall within the MIG.
20I give Dr. Marchie’s report more weight than that of Dr. Ogilvie-Harris for the following reasons:
i. Dr. Marchie reviewed hospital records, clinical notes and records, and diagnostic injuries from the applicant’s clinical history. Dr. Ogilvie-Harris did not indicate any documents were reviewed.
ii. Dr. Ogilvie-Harris’ findings on function relied on the applicant completing questionnaires and providing those results as his opinion. This resulted in his findings on function being entirely based on the applicant’s self-reports and not on his direct observations. His physical exam appeared to be limited and did not address functional impairment. Whereas Dr. Marchie conducted a thorough physical examination and documented the applicant’s reaction to touch and range of motion throughout.
iii. Dr. Ogilvie-Harris did not document how the applicant met 5 out of 6 criteria in the AMA guides, only that the applicant met the criteria without further explanation or detail
21For these reasons I give higher weight to the findings of Dr. Marchie. I find that the applicant more than likely suffered soft-tissue injuries that fall within the MIG.
22I find that the applicant has not proven chronic pain with a functional impairment that would warrant removal from the MIG.
The applicant has not proven a psychological impairment which would warrant removal from the MIG
23I find the applicant has not proven a psychological impairment which would warrant removal from the MIG.
24The applicant submits that she suffered an adjustment disorder, however has not pointed to any medical evidence to substantiate a psychological impairment.
25The respondent submits that a s.44 report of Dr. D. Saunders, psychologist, who found that the applicant’s complaints do not meet the clinical criteria for impairment.
26The applicant has not pointed me to any specific evidence which demonstrates she suffers from a psychological impairment as a result of the accident. I have reviewed the clinical notes and records of the applicant’s family physician, which were provided, and have not been able to find any records which would support an accident-related psychological impairment.
27It is the applicant’s burden to prove a psychological impairment which would warrant removal from the MIG. I therefore find that, on the balance of probabilities, the applicant has not proven a psychological impairment which would warrant removal from the MIG.
28As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, there is no entitlement to interest.
Award
30The 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.
31As there have been no benefits withheld, there is no entitlement to an award.
ORDER
32For the reasons above I find that:
i. The applicant’s injuries do not warrant removal from the MIG;
ii. As the applicant remains within the MIG, it is not necessary to consider the disputed treatment plans; and
iii. There is no entitlement to interest or an award under s. 10 of Reg 664.
33This application is dismissed.
Released: June 18, 2026
Julian DiBattista
Vice-Chair