Licence Appeal Tribunal File Number: 24-003807/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:
Adrian Crawford
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Thomas Zwiebel, Counsel
For the Respondent:
Serena Gohal, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Adrian Crawford, the applicant, was involved in an automobile accident on June 28, 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, Wawanesa Mutual 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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from January 23, 2023, and ongoing?
iii. Is the applicant entitled to $2,200.00 for an occupational therapy assessment proposed by DRT in a treatment plan/OCF-18 submitted on July 5, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.
4Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plan.
5The applicant is not entitled to an IRB.
6The applicant is not entitled to interest.
7The application is dismissed.
ANALYSIS
Applicability of 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 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 he suffered from a tear in the shoulder from the accident and that he has pre-existing conditions that would remove him from the MIG.
The applicant has not demonstrated that he has a shoulder tear caused by the accident
11The applicant has not met his onus of proving on a balance of probabilities that he has a shoulder tear which was caused by the accident warranting removal from the MIG.
12The applicant relies on the OCF-3 dated September 10, 2022, that was prepared by Dr. Mohammed Agyemang, chiropractor, which lists the following accident-related injuries: injury to muscle and tendons at neck level, other headache syndromes, injury to muscle and tendons of the thoracic spine, dizziness and giddiness, injury to muscle and tendons of the shoulder and upper arm, contusion of toes and ankle, injury of muscle and tendon of abdomen, lower back, and pelvis, injury of muscle and tendon of hip thigh level, and knee sprain/strain.
13The applicant also relies on the following evidence to support his position:
i. An MRI of his right shoulder dated October 5, 2022, indicating that “there is a cyst adjacent to the labrum which may indicate an occult labral tear.” The applicant submits that the main cause of an occult labral tear is trauma.
ii. During an appointment on August 29, 2022 with his family physician, Dr. Hilario Lapnea, the applicant reported right ankle, left foot, knee, and back pain from the accident. Dr. Lapnea referred the applicant to Dr. Gilbert Yee, orthopedic surgeon, for a consultation.
iii. The applicant’s consultation was not accepted by Dr. Yee as additional information was required. The applicant’s neck and shoulder imaging was requested. The applicant submits that this confirms the relevance of this material, because Dr. Yee wanted this information prior to seeing the applicant.
14The applicant submits that his vehicle was struck with a force so impactful that it broke the rear axle of his commercial truck. He further submits that the applicant’s vehicle was a standard shift, which accounted for the right shoulder tear as he was holding the floor mounted shifter when his vehicle was struck. I do not find these submissions persuasive because the applicant does not refer me to any evidence to substantiate them. It is well settled that submissions are not evidence.
15The applicant makes extensive submissions regarding his view of the inadequacy of the Insurer Examinations (“IEs”). However, the onus is not on the respondent prove that the applicant is not in the MIG. The onus is on the applicant to prove on a balance of probabilities that he is outside the MIG. In any event, in coming to my decision, I did not find it necessary to refer to the IEs.
16The respondent refers to Dr. Lapena’s clinical notes and records dated October 12, 2022, indicating that Dr. Lapena called the applicant to review the October 5, 2022 MRI results, and the applicant did not respond. The respondent points out that there is no evidence that the applicant sought further treatment with Dr. Lapena, or any medical practitioner beyond this point.
17The respondent further submits that the applicant has not presented any evidence to establish that the post-accident MRI findings of his right shoulder are attributable to the accident. The respondent points out that:
i. No doctor has related his shoulder impairment to the accident.
ii. Despite Dr. Lapena’s follow-up regarding the MRI results, the applicant never responded.
iii. There is no evidence that the applicant ever saw Dr. Yee for his accident-related complaints.
18I have considered the evidence and submissions of the applicant, as set out above. I find that the applicant has not proffered evidence that he sustained a shoulder tear that was caused by the accident. I note that the entire impression noted on the October 5, 2022 MRI reads as follows: “Supraspinatus tendinosis. There is a cyst adjacent to the labrum which may indicate an occult labral tear. No discrete labral tear is identified in the study. There is no evidence of muscle denervation or edema.” I find that these results indicate that there “may” be an occult labral tear. There is no definitive diagnosis of a tear or evidence that it was accident related.
19For these reasons, I find that the applicant has not met his onus of demonstrating on a balance of probabilities that he has a shoulder tear which was caused by the accident warranting removal from the MIG.
The applicant has not demonstrated that he should be removed from the MIG pursuant to s. 18(2)
20The applicant has not met his onus of proving on a balance of probabilities that his pre-existing injuries should remove him from the MIG.
21The applicant relies on the following evidence of his pre-existing injuries:
i. X-rays dated January 22, 2015 of the cervical spine, thoracic spine, lumbosacral spine, sacroiliac joints, right tibia and fibula, and right knee. Impression: “Possible sacroiliitis. Benign appearing sclerotic area in the knee, no abnormality seen in the tibia and fibula.”
ii. MRI of the lumbar spine and SI joints on April 22, 2015. Impression: “6 lumbar type vertebrae. Disc findings at L3-4 and mild retrolisthesis resulting in some compression of left L4 nerve root may result in patient’s left-sided symptoms. No SI joint abnormality.”
iii. MRI of the right knee on May 3, 2016 indicates an old subtle MCL sprain.
iv. Letter from Dr. Lapena dated September 20, 2024 which refers to the above X-rays and MRIs, as well as the applicant’s pain complaints. Dr. Lapena indicates: “The patient believes that his previous injuries may be contributory to his current situation.”
22The applicant further submits that, if the tear to his right shoulder pre-existed the accident, this would speak to whether the injury was an exacerbation, which would justify removal from the MIG under s. 18(2).
23Although the applicant has proffered evidence of some pre-existing conditions, I find that he has not directed me to evidence to satisfy the second branch of the test in s. 18(2) of the Schedule. That is, the applicant has not pointed to compelling medical evidence stating that his conditions would preclude recovery if he was kept within the MIG.
24For these reasons, I find that the applicant has not met his onus of demonstrating on a balance of probabilities that his pre-existing injuries should remove him from the MIG.
25For the reasons set out above, I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.
26As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plan in dispute.
The applicant is not entitled to an IRB
27The applicant has not met his onus of proving on a balance of probabilities that he is entitled to an IRB.
28To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
29To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training, or experience.
30The applicant submits that, since the accident, he suffers from a substantial inability to perform the essential tasks of his employment. He directs me to the following evidence:
i. On the OCF-1 dated July 7, 2022, the applicant indicated that he had been working for XR Studios LLC, an American company, as a business tech lead, and earning $2,500.00 USD per week, working forty hours per week.
ii. An OCF-2 dated July 8, 2022 was completed by the applicant’s employer, confirming that the applicant earned $2,500.00 per week prior to the accident. The OCF-2 indicates that the applicant started working for the company on January 10, 2018 and that his last day worked was on June 28, 2022.
iii. On the OCF-2, the essential tasks of the applicant’s employment are listed as: prospecting, client engagement, sales, product and service presentation, procurement, quality assessment, tech lead for business solutions, and business process management.
iv. A letter dated April 19, 2022 from the applicant’s employer, indicates an exhaustive list of tasks of the applicant’s employment. There are thirty-three tasks listed. The applicant points out the following items he submits would be considered moderately or highly physically demanding: lifting heavy objects and carrying them to clients, travel to address potential investors at their companies to present company offerings and negotiate business transactions, and travel to coaching and mentoring to other members of the team.
v. An OCF-3 dated September 10, 2022 was completed by Dr. Agyemang, indicating that the applicant was substantially unable to perform the essential tasks of his employment at the time of the accident as a result of and within 104 weeks of the accident.
vi. Dr. Lapnea’s letter dated September 24, 2024 indicates that the applicant reported having continuing back pain and soreness, including shoulder pain, difficulty bending and sitting for any significant amount of time and that his right foot and ankle were tender and sore with difficulties extending his knees.
31The applicant further submits: “In law, the trier of fact looks to the simplest of answers to the most complicated questions.” The applicant points out that he earns approximately $200,000.00 CAD yearly and has not been able to return to his employment. Even if he received the maximum of $400.00 per week, this would be only 1/10 of his actual earnings from employment. The applicant argues that the simplest explanation is that he is not able to return to his pre-accident tasks of employment.
32The respondent submits that, except for an OCF-3, the applicant does not provide any submissions or evidence with respect to how he meets the test for IRBs payable within 104 weeks of the accident. The respondent relies on the Tribunal decision of Said v. Northbridge Insurance Company, 2020 CanLII 122073 (ON LAT) at para. 15, in submitting that it is well settled that an OCF-3 alone is not sufficient evidence to meet the applicant’s burden of proving entitlement to IRBs. Although I am not bound by other decisions of the Tribunal, I agree with this reasoning.
33I find that the applicant does direct me to evidence of the essential tasks of his employment. He does not, however, provide submissions or point to evidence with respect to which tasks he has been unable to perform and to what extent he is unable to perform them, as required by s. 5(1) of the Schedule.
34Since I find that the applicant has not established entitlement to IRBs under s. 5(1), I also find that he is not entitled to IRBs under s. 6 of the Schedule.
35For these reasons, I find that the applicant has not met his onus of proving on a balance of probabilities that he is entitled to an IRB.
Interest
36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
ORDER
37For the above reasons, I find:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.
ii. Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plan.
iii. The applicant is not entitled to an IRB.
iv. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
v. The application is dismissed.
Released: December 19, 2025
Laura Goulet
Adjudicator