Citation: Saif v. RSA Insurance, 2025 ONLAT 24-003219/AABS

Licence Appeal Tribunal File Number: 24-003219/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:

Saif Uddin Saif

Applicant

and

RSA Insurance

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Muhammad Aftab Alam, Counsel

For the Respondent:

Nirvana Misir, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Saif Uddin Saif, the applicant, was involved in an automobile accident on February 23, 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, RSA Insurance, 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 services proposed by Mackenzie Medical Rehabilitation Centre (“Mackenzie Medical”) as follows:

1. $3,853.10 for physiotherapy services, in a treatment plan dated March 15, 2022;

2. $1,150 for physiotherapy services, in a treatment plan dated September 6, 2022;

3. $1,300.00 for physiotherapy services, in a treatment plan dated October 18, 2022; and

4. $1,525.84 for physiotherapy services, in a treatment plan dated February 19, 2023?

iii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Pearson Medical Assessment Centre (“Pearson Medical”) in a treatment plan dated April 29, 2022?

iv. Is the applicant entitled to $1,784.75 for prescription glasses and repairs to cell phone, submitted on a claim form (“OCF-6”) dated April 8, 2022?

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?

3The Case Conference Report and Order (“CCRO”) lists issue 6(i) as, “Is the applicant entitled to $1,651.00 for a home assessment, in a treatment plan dated April 11, 2022 and denied April 27, 2022?”. By letter dated April 2, 2025, the applicant withdrew this issue. Therefore, this issue is not in dispute.

4The CCRO lists issue 6(iii) as, “Is the applicant entitled to $1,525.52 for a work site assessment, in a treatment plan dated May 6, 2022 and denied May 13, 2022?” By letter dated April 2, 2025, the applicant withdrew this issue. Therefore, this issue is not in dispute.

RESULT

5The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG. The applicant is not entitled to the treatment plans or OCF-6 in dispute, interest or an award.

PROCEDURE

Submissions do not comply with the filing requirements

6The respondent submits that the applicant improperly narrowed its margins in its submissions. In reply, the applicant submits that other than the margins, the other requirements of the CCRO were complied with.

7The CCRO stipulated a ten-page limit for initial submissions. The CCRO further stated at paragraph 18 that “Submissions must be double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins and be index, bookmarked/tabbed and consecutively paragraph and page numbered. Submissions must make specific reference to the evidence and authorities by tab and page number.”

8Upon review of the applicant’s submissions, I agree with the respondent that the applicant’s submissions do not comply with the CCRO as the margins are significantly narrowed. I further find that while not raised by the respondent, that the applicant’s submissions contain close to 600 pages of documents, and they are not bookmarked or consecutively page numbered.

9Parties are required to comply with the Tribunal’s orders. Section 23(1) of the Statutory Powers Procedure Act provides that a Tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes. Thus, the Tribunal’s orders support procedural fairness by ensuring a clear and shared understanding of procedural expectations. In this case, I find that the applicant ignored the order of the Tribunal as it pertained to the margins in his submissions and the bookmarking and the page numbering of his documents.

10I find that the prejudicial effect of a party’s non-compliance with the Tribunal’s orders should weigh on a decision to admit or exclude evidence. In this case, the respondent did not address in its submissions any disadvantage it may have faced because the applicant used incorrect margins. In addition, I find that while the margins are clearly in non-compliance with the CCRO, the applicant’s submissions were only eight pages in length. With respect to the documents submitted, I found it increasingly difficult to locate the documents referred to by the applicant in his submissions without bookmarking and page numbers. It is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50.

11Although it is open to me to order otherwise, I find that it would be significantly prejudicial if I did not consider the entirety of the applicant’s submissions and evidence to determine the issues in dispute on their merits. However, the weight of the evidence provided will be assessed when determining the substantive issues in dispute.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

12I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

13Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

14An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.

15In this matter, the applicant submits that he should be removed from the MIG because he suffers chronic pain and a psychological impairment.

a. The applicant is not removed from the MIG on the basis of chronic pain

16I find that the applicant has not proven on a balance of probabilities that he suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.

17Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

18The applicant submits that he suffers from chronic pain as his pain has lasted beyond three years as evidenced in the Clinical Notes and Records (“CNRs”) of his family physician, Dr. Alia Ismat-Raheem, and other specialists. He claims that he suffered injuries to his neck, left shoulder, right wrist, right thumb, lower back and right knee as well as headaches, dizziness and sleep disorders. He submits that he was referred to Vaughan Pain Clinic by his family physician where he received two sets of injections which helped his pain temporarily. The CNRs from the clinic indicate that he reported 40% pain and functional improvement lasting for two to three days only after a pain injection. Dr. Wilfrid Chan prepared a report dated May 31, 2024, and diagnosed the applicant with myofascial pain, mechanical neck and low back pain, left shoulder rotator cuff tendinosis, upper crossed syndrome and chronic pain syndrome. Dr. Chan also referred him for an x-ray and ultrasound which showed a rotator cuff tear.

19The applicant submits that as he suffered a rotator cuff tear, his injuries do not fall within the MIG. He relies upon the left shoulder ultrasound report dated March 17, 2022, which indicated a partial rotator cuff tear.

20The applicant also relies upon the report of Dr. Joseph Wong, physiatrist, dated August 9, 2024, which diagnosed him with a myofascial injury of the cervical spine paraspinal muscles, a myofascial injury of the thoracic spine muscles with referred pain to the left shoulder, right elbow brachioradialis muscle tendinitis with referred pain to the right thumb, a myofascial injury of the lumbar spine paraspinal muscles and gluteal muscles, insomnia, psychological problems and chronic pain.

21In terms of his functional limitations, the applicant submits that as a result of the accident, he is unable to perform his household chores, including vacuuming and mopping, and outdoor maintenance activities of lawn mowing and snow shovelling, due to his ongoing pain. In addition, he rarely engages in his pre-accident activities of soccer, cricket, badminton, going for walks, socializing with family and friends, or going on picnics.

22With respect to his pre-accident employment as a delivery driver, following the accident he was off work for two weeks and only returned to modified duties doing office paperwork. He returned to his pre-accident duties a year after the accident, but he could only work for two days per week, rather than the four days per week he worked pre-accident. He started working as a driving examiner in March 2023, two to three days per week, eight hours a day, which is not a physically demanding job.

23The respondent submits that the applicant does not suffer from chronic pain as a result of the accident. The respondent relies upon the Tribunal decision in 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT), where it was held that for chronic pain to be more than sequelae from the soft tissue injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. The Tribunal held, “A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.” The respondent further relies upon the AMA Guide factors which it submits are necessary to establish chronic pain.

24The respondent argues that there is no evidence to indicate that the applicant has excessively depended on health care providers, that he had ongoing prescription drug usage, or that he suffers any functional impairments. It submits that the Decoded OHIP Summary and the CNRs provided to date confirm that the applicant did not attend for any treatment between November of 2022 and May of 2024. In addition, it submits that the applicant’s housekeeping abilities have no bearing on the MIG determination analysis.

25The respondent submits that the sole reference to a chronic pain diagnosis is in the records provided in the initial assessment report from the applicant’s first attendance at Vaughan Pain Clinic in May of 2024, over two years post-accident. The respondent submits that to date, the applicant has attended for injections twice. It argues that the Tribunal held in the decision of L.V.D. v. Aviva Insurance Company of Canada, 2019 CanLII 43875 (ON LAT), that attending for injections in and of itself is not sufficient to warrant removal from the MIG. The onus is on the applicant to adduce evidence to support a finding that injections are being administered beyond the recommended period of usage.

26The respondent relies upon the Insurer’s Examination (“IE”) report of Dr. Jaqueline Auguste, orthopaedic surgeon, dated January 10, 2023. Dr. Auguste noted that bilateral shoulder range of motion was full in all planes with no findings of impingement, tendinopathy, instability or capsular laxity on clinical testing. She concluded that the applicant sustained a WAD 1-2 cervical, lumbar spine, left shoulder and right thumb strain/sprain and that the applicant’s injuries were minor. In her Addendum report, dated April 4, 2023, upon review of additional records, she confirmed her opinion remain unchanged.

27The respondent also relies upon the IE report of Dr. Eric Silver, general practitioner, dated January 10, 2023. Dr. Silver concluded that the applicant sustained sprain and strain injuries to the right 1^st metacarpal phalangeal joint, cervical spine, left shoulder and lumbar spine and that the applicant’s injuries were minor. His Addendum report dated April 4, 2023, confirmed these conclusions.

28In his reply submissions, the applicant submits that his right thumb injury supports that he suffers chronic pain. He refers to the Diagnostic Addendum report dated March 17, 2022, which indicates, “Images re-reviewed. Thickness hypoechoic ulnar collateral ligament, right first digit, raising suspicion of ligament injury”. The report recommended an MRI to better evaluate the ligaments. The report of Dr. Haley, orthopaedic surgeon, dated April 4, 2022, noted that the ultrasound showed that the tendons were intact, however, they did not specifically look at the ulnar and radial collateral ligament. The applicant therefore submits that the diagnostic tests were incomplete to arrive at any comprehensible diagnosis. He argues that his right thumb injury has since become chronic.

29I find that the applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident. The applicant has not demonstrated that he is functionally impaired by pain. My reasoning is based on the following findings.

30Upon review of the CNRs of Dr. Ismat-Raheem, I find that the applicant regularly saw his family doctor from February 24, 2022 to October 31, 2022 with complaints of accident-related pain. The October 31, 2022 CNR notes a phone consultation where the applicant reported he was performing full duties and had low back pain. There are no further records provided from Dr. Ismat-Raheem, until a referral is made to Vaughan Pain Clinic on March 21, 2024. However, upon review of the CNRS, there is no indication that the applicant was seen at the time of the referral or on what basis the referral was made. The only subsequent CNR in the records provided is a CNR dated June 3, 2024, which notes a phone consultation where the applicant reported left shoulder pain, and he was referred for an x-ray. There is no evidence that the applicant attended for this x-ray. I find that the applicant has not provided any explanation for the lapse in appointments between October 31, 2022 and March 21, 2024. In addition, the applicant has not pointed me to any CNRs which discuss his functional limitations. Therefore, these records do not support the applicant’s ongoing pain after October 31, 2022 or that he has a corresponding functional impairment as a result of the accident.

31I find that while the applicant has attached his “physiotherapy clinic records – various” to his submissions, no submissions were made as to the treatment he received post-accident, to support his ongoing pain.

32I find that both the reports of Dr. Chan and Dr. Wong, were provided over two years post-accident. I give weight to the fact that the applicant did not attend for any treatment or assessments between October 31, 2022, the date of his last appointment with his family doctor, and May 31, 2024, his appointment with Dr. Chan. There is no evidence that the applicant continued to suffer ongoing pain or functional limitations during this time.

33Upon review of the report of Dr. Chan, I find that Dr. Chan based his findings on the self-reporting of the applicant and did not review any medical documentation. I further find that while Dr. Chan notes that the applicant’s symptoms have impacted the quality of his life and that he performs his daily activities with difficulty and experiences poor night sleep, there is no description or particulars provided of the applicant’s functional difficulties. In addition, Dr. Chan concluded that on examination he has some tendinosis, lower back pain, bilateral, non-radicular, and it’s very mild. I find that Dr. Chan’s findings of mild symptoms, combined with the lack of evidence about functional impairment, leads me to conclude that the applicant has not met his burden of proving chronic pain with functional impairment to escape the MIG.

34Upon review of Dr. Wong’s report, I find that multiple medical reports and records were reviewed and summarized in the report; however they were not referenced in his medical opinion. He concluded that “there is abnormal muscle tightness involving the neck, upper back and lower back, as well as the right elbow, which is compatible with ongoing soft tissue injuries.” While he notes that the applicant’s condition affects his ability with pushing and pulling, prolonged standing and walking activities, and that he had to reduce his working hours and requires assistance with heavy housekeeping activities, he relies on the applicant’s self-reporting, and he does not provide any specific details about these limitations. I find that he simply concludes that as the applicant has not healed from his injuries, he therefore has chronic pain.

35I prefer the evidence of the respondent set out in the IE reports of Dr. Auguste and Dr. Silver, which were both prepared a year following the accident and concluded that the applicant suffered minor injuries. In terms of the applicant’s functional abilities, he reported to Dr. Auguste that since the accident he cannot play cricket, only mows the lawn rarely and performs occasional garbage removal. He also does some light cooking and cleaning. She concluded that the functional and physical limitations described by the applicant are not consistent with her formal and informal observations as she noted no objective clinical findings of any substantive musculoligamentous, osseous or neurological impairment from an orthopaedic perspective. Dr. Silver noted in his report that, “In late August 2022, he returned to his regular hours and duties as a delivery driver, and he continues to do so. Despite some aggravation of pain with lifting totes and parcels, he is able to perform all of his usual activities without significant difficulties.” Dr. Silver further notes that “He has not returned to pre-accident snow removal and lifting of heavy garbage but has otherwise returned to his lighter home activities. He has returned to driving without restriction but reports having provocation of lower back pain with long drives. When asked to rate his overall improvements since the accident, Mr. Saif estimated a 60% overall reduction in pain symptoms.” I find the functional limitations reported by the applicant to these assessors are mere sequelae of the accident and are not sufficient to support a finding that the applicant suffers chronic pain.

36In terms of the AMA Guides, the applicant has not provided submissions as to whether he meets the criteria, however, I agree with the respondent that the applicant does not meet three out of six of the criteria for chronic pain. The applicant has not provided any prescription summaries or addressed the use of medication in his submissions. He is not excessively dependent on health care providers or family as he did not receive any medical attention between October 31, 2022 and May 31, 2024. None of the medical information before me suggests that he has deconditioned due to disuse. He returned to full duties at work in August 2022, and not a year after the accident as he submitted, and there is no evidence provided to support his submissions that he reduced his workdays or duties. While I accept that he may not be able to perform snow shovelling or lift heavy garbage, this is not sufficient to meet the criteria of chronic pain.

37With respect to the applicant’s argument that he should be removed from the MIG because he suffered a rotator cuff tear, the evidence supports that he suffered a partial tear and an MRI was recommended. The applicant has not submitted any evidence that he underwent an MRI. I find that a partial tear is a minor injury pursuant to s. 3 of the Schedule as it is considered a “sprain”. In addition, with respect to the applicant’s submissions that his thumb injury would remove him from the MIG, I find that he is not removed from the MIG on this basis, as the severity of the injury was never investigated by MRI despite recommendations for same.

38For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident and therefore he is not removed from the MIG on this basis.

b. The applicant is not removed from the MIG on the basis of a psychological condition

39I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition that would warrant removal from the MIG.

40The applicant submits that he suffered a psychological impairment as a result of the accident. He relies upon the psychiatric assessment report by Dr. Liaqat Ali, psychiatrist, dated August 19, 2024, which diagnosed him with somatic symptom disorder, predominantly pain, persistent, moderate; major depression disorder moderate; and unspecified trauma stressor-disorder.

41The respondent submits that the applicant does not suffer a psychological impairment. It relies upon the IE report of Dr. Rodney Day, psychologist, dated January 10, 2023 which concluded that the applicant did not meet the criteria for a psychological condition related to the subject accident. The respondent further submits that there are no psychological complaints noted in the family doctor’s records provided.

42The respondent relies upon the Tribunal decision in S.K. v. Wawanesa Insurance Company, 2020 CanLII 34436 (ON LAT), where it was held that in weighing competing psychological assessments with differing conclusions, the Tribunal is left to relying on corroborating evidence.

43I find that the applicant has not proven that he sustained an accident-related psychological condition that would warrant removal from the MIG. Other than the psychiatric assessment report dated August 19, 2024, I find that the applicant has not directed me to any other medical evidence to support that he suffers from a psychological condition.

44I find upon review of the CNRs provided by the applicant, that there is no mention of any psychological complaints throughout the CNRs. I therefore find no support in these records that the applicant was suffering from a psychological impairment. I find that the first mention of any psychological complaints is made in the psychiatric assessment report, prepared two and a half years post-accident. The applicant has not provided any explanation as to why no complaints were made to any treating medical practitioner about his psychological impairments prior to this report.

45I find that there are two competing reports that have differing conclusions. Both reports conducted psychometric testing, although the tests performed were different. Therefore, I am left to rely on corroborating evidence, and when looked at as a whole in terms of all of the medical documentation provided, I find on a balance of probabilities that the applicant does not have a psychological condition that would warrant him being removed from the MIG. The symptoms reported by Dr. Ali, who is not the applicant’s treating practitioner, are not noted anywhere else. I am not directed to any notations from his family physician or other medical practitioners that he has seen of any psychological symptoms that would warrant removal from the MIG.

46For the reasons outlined above, I find on a balance of probabilities that the applicant does not suffer a psychological impairment as a result of the subject accident and therefore he is not removed from the MIG on this basis.

The applicant is not entitled to the treatment plans or expenses in dispute

47As I have found that the applicant remains within the MIG, it is unnecessary for me to consider whether the disputed treatment plans and OCF-6 are reasonable and necessary.

Interest

48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed, 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 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

50For the reasons outlined above, I find:

i. The applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans or OCF-6 in dispute;

iii. The applicant is not entitled to interest;

iv. The respondent is not required to pay an award; and

v. The application is dismissed.