Zainab Naji v. Definity Insurance Company, 2026 CanLII 6212

Citation: Naji v. Definity Insurance Company, 2026 ONLAT 24-007177/AABS

Licence Appeal Tribunal File Number: 24-007177/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:

Zainab Naji

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR: Harouna Saley Sidibé

APPEARANCES:

For the Applicant: Lisa Bishop, Counsel

For the Respondent: Ainsley Shannon, Counsel

HEARD: By way of written submissions

OVERVIEW

1Zainab Naji, the applicant, was involved in an automobile accident on April 4, 2019, 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, Definity 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 limit (“MIG”)?

ii. Is the applicant entitled to $5,470.50 for Occupational Therapy Services, proposed by Okell Rehabilitation Services in a treatment plan/OCF-18 (“plan”) dated August 22, 2022?

iii. Is the applicant entitled to $1,796.00 for Physiotherapy Services, proposed by OMNI Health and Rehab Clinic in a treatment plan dated August 29, 2022?

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

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

RESULT

3For the reasons below, I find that:

1. The applicant’s injuries are predominantly minor, so the MIG monetary limit applies.
2. Because the applicant is bound by the MIG, it is not necessary to consider whether a treatment plan in dispute is reasonable and necessary.
3. The applicant is not entitled to interest or an award.

ANALYSIS

Are the applicant’s injuries predominantly minor?

4I find that the applicant has not proven, on a balance of probabilities, that her accident-related impairments fall outside the definition of “minor injury” in s. 3 of the Schedule or otherwise warrant MIG removal.

5Section 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.”

6An 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.

7The applicant submits that she sustained a traumatic brain injury/concussion and experiences chronic pain and psychological symptoms that do not fall within the MIG.

Concussion

8I find that the applicant has not demonstrated that she sustained a concussion warranting removal from the MIG.

9The applicant relies on early-reported symptoms, including headaches and dizziness. She submits that her family doctor’s clinical notes support concussion-related symptoms soon after the accident, including headaches, dizziness, and photosensitivity. The applicant argues that the insurer improperly minimized or disregarded these symptoms when applying the MIG.

10The respondent submits that the applicant sustained minor soft-tissue injuries that resolved within months and that she returned to full-time work by July 2019 with a high level of function. The respondent relies on ambulance and emergency department records, noting the absence of documented loss of consciousness, the absence of a formal concussion diagnosis, and largely normal findings and imaging. The respondent argues that the evidence does not establish that the applicant sustained a concussion.

11The Disability Certificate (OCF-3) dated May 1, 2019, lists concussion among the applicant’s injuries.

12The clinical notes and records (“CNRs”) from the applicant’s family doctor, Dr. Mustafa Kamouna, dated April 8, 2019, include the notation “concussion?”, which reflects a query rather than a confirmed diagnosis. Subsequent CNRs dated April 26, 2019, indicate that the applicant continued to experience headaches and photosensitivity since the accident.

13A CT head scan performed on April 8, 2019, at Halton Healthcare Services reported no midline shift, normal ventricular calibre, and no evidence of acute intracranial hemorrhage or mass.

14On June 26, 2019, the applicant’s family doctor referred her to a neurologist. The neurological assessment, conducted on May 13, 2020, by Dr. Michel Rathbone, a neurologist, pertained to neck and low back pain rather than a concussion assessment.

15In CNRs dated January 26, 2023, the family doctor considered whether the applicant had sustained a concussion. He noted that an MRI was ordered on June 24, 2019, but was never performed. The doctor opined that the applicant met the criteria for a mild concussion. In CNRs dated October 21, 2024, the family doctor attributed the applicant’s headaches to tension-type headaches.

16I place significant weight on the contemporaneous medical records and imaging results. Although the applicant reported symptoms consistent with a possible concussion, including headaches, dizziness, and photosensitivity, these symptoms alone do not establish a diagnosis. The CT scan performed shortly after the accident showed no acute intracranial pathology, and there is no documented loss of consciousness or formal neurologist diagnosis.

17The notation “concussion?” in the April 8, 2019, CNR reflects uncertainty rather than confirmation. Although the OCF-3 lists concussion as an injury, this appears to be based on reported symptoms rather than objective findings. Although the family doctor opined in late 2023 that the applicant met the criteria for a mild concussion, this conclusion is retrospective and unsupported by contemporaneous clinical documentation or specialist evaluation. While concussions typically do not appear on MRI or other diagnostic imaging, the absence of corroborating medical evidence, such as timely clinical assessments, neurological evaluations, or documented symptom progression, reduces the overall probative value of this retrospective opinion.

18The applicant’s return to full-time work by July 2019, with a high level of function (see OT Attendant Care Assessment report, Rachel Schwarez, March 26, 2021, p. 8), further supports the respondent’s position that any injuries were minor and resolved within a reasonable timeframe. Attributing headaches to tension-type headaches in 2024 also undermines the argument that concussion-related symptoms persisted.

19On a balance of probabilities, I find that the evidence does not establish that the applicant sustained a concussion as a result of the accident.

Chronic Pain

20I find that the applicant has not demonstrated that she sustained chronic pain that warrants removal from the MIG.

21The applicant submits that her injuries extend beyond the MIG because she suffers from chronic pain syndrome resulting from the accident. She argues that her pain is widespread and persistent, affecting her neck, shoulders, lower back, and hips, and radiating into her limbs, with associated numbness and tingling. Despite physiotherapy and rehabilitation, she maintains that her pain has not resolved and continues to impair her mobility, sleep, and ability to perform activities of daily living.

22The applicant emphasizes that chronic pain has significantly affected her quality of life, work capacity, and independence. She argues that these factors exclude her injuries from the MIG.

23The respondent disputes this position, arguing that the evidence does not support a finding of chronic pain warranting removal from the MIG. The respondent contends that intermittent pain complaints are insufficient; credible evidence of severe, functionally disabling pain that is consistent and impacts daily or work function is required. The respondent relies on the AMA Guides, 6th edition, which require at least three criteria for a chronic pain diagnosis, and asserts that the applicant meets none of them.

24The clinical notes from the applicant’s family doctor, Dr. Kamouna, document early pain complaints and prescriptions for Tylenol #3 and, later, Lyrica. For example, on April 8, 2019, Dr. Kamouna noted tenderness in both shoulder blades and the lower lumbar spine.

25Occupational therapy assessments dated April 29, 2019 (Amaresh Parikshya) and March 26, 2021 (Rachel Schwarez) noted constant neck, shoulder, and lower back pain radiating into the legs; headaches twice weekly; dizziness; fatigue; and functional limitations requiring attendant care and assistive devices.

26A neurological assessment dated May 13, 2020, by Dr. Rathbone concluded that the applicant appeared to have sustained musculoskeletal injuries to the cervical and lumbar spine, with radicular symptoms in the right arm and leg. Further investigation with EMG and possible MRI was recommended, along with a physiatry consultation for pain management.

27On July 20, 2020, Dr. Ammar Gilani at Juravinski Hospital reported that EMG studies showed no evidence of mononeuropathy, radiculopathy, or generalized peripheral neuropathy. He suggested imaging of the cervical and lumbar spine and recommended evaluation for musculoskeletal sources, including tendinopathies and hip pathology.

28On January 5, 2021, Dr. Seyed Hosseini at Hamilton General Hospital diagnosed cervical and thoracolumbar spine sprains and strains, with possible degenerative changes, bilateral greater trochanteric syndrome, and possible hip and shoulder involvement. He recommended referral to a chronic pain clinic.

29Diagnostic imaging (MRI) performed on April 22, 2021, revealed mild disc bulges and degenerative changes, supporting ongoing lumbar pain.

30However, on September 9, 2019, Dr. Kamouna noted that the applicant was gradually improving and taking Advil as needed for residual pain. On January 26, 2023, the family doctor indicated that symptoms had resolved and that there had been no complaints since September 2019.

31The evidence also shows that the applicant returned to full-time work within three months of the accident and has maintained employment for over five years, including overtime and physically demanding tasks such as walking approximately seven kilometres daily (see OT Attendant Care Assessment report, Rachel Schwarez, March 26, 2021, p. 8).

32On a balance of probabilities, I find that while the applicant experienced pain following the accident and continues to report some symptoms, the evidence does not establish that she suffers from chronic pain of a severity or functional impact that warrants removal from the MIG. The applicant’s early complaints and subsequent assessments indicate musculoskeletal injuries and some ongoing discomfort; however, diagnostic testing was largely normal, and her high level of function, including sustained full-time employment in a physically demanding role, undermines the claim of disabling chronic pain.

33On a balance of probabilities, I find that the evidence does not establish that the applicant sustained chronic pain as a result of the accident.

Psychological Impairments

34I find that the applicant has not demonstrated that she sustained psychological impairments that warrant removal from the MIG.

35The applicant submits that she developed psychological symptoms after the accident, which removed her injuries from the MIG. She relies on occupational therapy assessments and clinical notes documenting depression, emotional lability, anxiety, nightmares, and sleep disturbances. The applicant also reports cognitive difficulties, including memory loss, forgetfulness, and concentration problems, that interfere with her daily functioning and work performance. Psychological testing during an OT assessment indicated severe depression. The applicant argues that these symptoms, together with physical and cognitive impairments, warrant multidisciplinary treatment, including psychological assessment and therapy, and justify removal from the MIG.

36The respondent submits that there is no evidence of a psychological impairment related to the accident. The applicant attended her family doctor regularly but did not report psychological symptoms and did not receive a diagnosis or treatment recommendation for any psychological condition. No psychotropic medication was prescribed. The respondent emphasizes that the first mention of psychological issues occurred years after the accident, during a discussion with the applicant’s lawyer and occupational therapist, which the respondent characterizes as litigation-driven. The respondent argues that these facts confirm the absence of an accident-related psychological impairment and that the applicant’s injuries remain within the MIG.

37Clinical notes dated June 26, 2019, indicate that the family doctor recorded the applicant’s report of worsening forgetfulness. No other entries document psychological complaints.

38An occupational therapy assessment dated April 29, 2019, noted that the applicant scored 37 on a depression scale, placing her in the “severe depression” range. Immediate psychological intervention was recommended.

39A subsequent occupational therapy assessment dated March 26, 2021, recorded cognitive and emotional concerns reported by the applicant, including memory and concentration difficulties, sadness, anxiety, irritability, social isolation, and tearfulness.

40On a balance of probabilities, I find that although the applicant reported certain emotional and cognitive symptoms, the evidence supports that these symptoms are sequelae of the minor physical injuries sustained in the accident and are therefore captured within the Minor Injury Guideline. The record does not establish a standalone psychological impairment that would remove the applicant from the MIG under the applicable legal test. The contemporaneous medical records from her family doctor do not document psychological complaints or diagnoses, and no psychotropic medication was prescribed. Although occupational therapy assessments noted depressive symptoms and recommended intervention, these findings were not corroborated by treating physicians.

41Accordingly, I find that the evidence does not establish that the applicant sustained psychological impairments as a result of the accident that warrant removal from the MIG.

42For these reasons, I find that the applicant has not proven that her accident-related impairments fall outside the definition of “minor injury” or otherwise warrant removal from the MIG. The applicant’s injuries are subject to the MIG limit.

Is the applicant entitled to disputed treatment plans?

43Since I have determined that the applicant remains within the MIG, it is not necessary to assess the reasonability and necessity of the disputed treatment plans.

Interest

44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found the disputed treatment plans are not payable and no other amounts are ordered, there is no basis for interest.

Award

45The 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.

46The applicant did not address this issue in her written submissions.

47The respondent argues that there's no basis for an award, contending that the applicant failed to meet procedural requirements or to demonstrate unreasonable conduct. It stresses the high threshold for a special award, requiring more than an incorrect denial, and maintains that its denials were reasonable, supported by medical evidence, and consistent with its stance on MIG applicability.

48The applicant bears the onus of establishing that the insurer unreasonably withheld or delayed payment of benefits. On the evidence before me, I accept the respondent’s submission that the denial rationales were documented and tied to its interpretation of the medical record and the MIG. Additionally, I have found that the applicant falls within the MIG and, therefore, no benefit is owed; any benefit was improperly withheld or delayed.

49Accordingly, the applicant is not entitled to an award.

ORDER

50For the above reasons, it is ordered that:

i. The applicant’s injuries are predominantly minor, so the MIG monetary limit applies.

ii. Because the applicant is bound by the MIG, it is not necessary to consider whether a treatment plan in dispute is reasonable and necessary.

iii. The applicant is not entitled to interest or an award.

Released: January 29, 2026

Harouna Saley Sidibé

Adjudicator