Citation: Chaudhry vs. Intact Insurance Company, 2025 ONLAT 23-005946/AABS

Licence Appeal Tribunal File Number: 23-005946/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:

Farooq Chaudhry

Applicant

And

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Natalia Poliakova, Paralegal

For the Respondent: Raman Pandher, Counsel

HEARD: By way of written submissions

OVERVIEW

1Farooq Chaudhry, the applicant, was involved in an automobile accident on December 16, 2021, 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:

1. 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? Note: The parties agree that $1,825.00 was remaining for treatment within the MIG limit as of the date of the case conference.

2. Is the applicant entitled to $2,840.00 for physiotherapy services, proposed by 2299281 Ontario Inc. in a treatment plan/OCF-18 (“plan”) submitted June 21, 2022?

3. Is the applicant entitled to $2,200.00 for physiotherapy services, proposed by 2299281 Ontario Inc. in a plan submitted Oct 22, 2022?

4. Is the applicant entitled to $3,080.00 for physiotherapy services, proposed by 2299281 Ontario Inc. in a plan submitted March 19, 2022?

5. Is the applicant entitled to $3,080.00 for physiotherapy services, proposed by 2299281 Ontario Inc. in a plan submitted October 1, 2022?

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

RESULT

3I find the applicant’s impairments fit within the MIG. He is not entitled to any of the OCF-18s in dispute or interest because they seek treatment outside of the MIG limit.

PROCEDURAL ISSUE

4The respondent requested that the applicant’s submissions be excluded on the basis that they did not comply with paragraph [11] of the Tribunal’s case conference report and order (“order”). The Tribunal ordered that the parties’ submissions and document briefs shall be double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins and be indexed, bookmarked/tabbed and consecutively page numbered. Further, that the submissions shall make specific reference to the evidence and law by tab and page number. The Tribunal’s order advised the parties that the hearing adjudicator may choose not to review evidence not so referenced. Despite having the option to file reply submissions addressing the respondent’s request to exclude his submissions the applicant chose not to.

5I agree with the respondent and find that the applicant’s submissions did not comply with any of the requirements in paragraph [11] of the Tribunal’s order. The applicant also submitted the clinical notes and records (“CNRs”) of his family doctor and treating clinics in their entirety and did not reference the page numbers relied upon or explain their relevance to his position. Nor did his submissions discuss many of the records contained in his document brief. After a cursory review of these records, it is not evident to me what is relevant to the applicant’s claim. It is well established that it is not appropriate for the trier of fact to review hundreds of pages of records to make a parties’ case for them. However, in light of my decision in this matter, I decline the respondent’s request to exclude the applicant’s submissions because they did not impact the outcome of this decision.

ANALYSIS

The applicant’s accident-related impairments fit within the MIG.

6Section 18(1) of the “Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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 person may successfully be removed from the “MIG” if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that his accident-related impairments fall outside of the MIG.

8The applicant submits that he should be removed from the MIG because he had pre-existing shoulder and back pain which was exacerbated by the accident. Further, that these pre-existing impairments will prevent him from achieving maximum medical recovery in the MIG. He also maintains that he should be removed from the MIG because he suffers from chronic pain as a result of the accident because his pain has persisted longer than six months. The applicant relies on a disability certificate (“OCF-3), an MRI and various CNRs of his family doctor and treating clinics in support of his position.

9The respondent argues that the applicant’s accident-related impairments fall within the MIG. It submits that the various CNRs relied upon by the applicant support that he sustained a minor injury. It relies on the insurer examination (“IE”) report of Dr. Naiman, physician dated June 6, 2022, who diagnosed the applicant with soft tissue injuries which fall within the MIG. Further, the respondent maintains that the OCF-3 and OCF-18s submitted by the applicant all reference minor injuries.

10I find the applicant’s accident-related impairment fits within the MIG for the following reasons.

Pre-existing Medical Condition

11I find the applicant has not provided compelling medical evidence that any pre-existing condition would prevent him from achieving maximum medical recovery within the MIG. The applicant relied on his family doctor’s CNRs which reference pre-accident shoulder and back pain.

12It is well established that evidence of a pre-existing condition alone does not warrant MIG removal. I find the fact that the applicant reported a few instances of shoulder and/or back pain to his family doctor two years prior to the accident is not compelling evidence. Further, the applicant first reported shoulder pain on August 16, 2022, which was nine months post-accident. Because of the large gap in time, I find the applicant has not proven that any pre-existing condition was exacerbated by the accident. What I find lacking in this case is evidence from a treating practitioner supporting that the applicant’s pre-existing shoulder and back pain would prevent him from achieving maximum medical recovery in the MIG, which is required for removal as per s. 18(2). In contrast, Dr. Naiman concluded that there is no evidence of any pre-existing condition which would prevent the applicant from achieving recovery within the MIG. In the absence of compelling evidence to the contrary I accept this opinion. For these reasons, I find the applicant is not removed from the MIG due to a pre-existing impairment.

Chronic Pain

13The applicant’s submissions and evidence fell short of meeting his onus that he suffers from chronic pain as a result of the accident to warrant removal from the MIG.

14The applicant relies on a hospital record from the day of the accident which notes that he reported neck and mild lower back pain. The applicant also relies on the CNRs of Physiomed in support of his position that he suffered from ongoing pain which impacted his ability to function in carrying out his daily activities. As highlighted above, the applicant’s submissions did not highlight the specific CNRs which support his position.

15A review of these CNRs support that the applicant attended this clinic from March to September 2022 where he complained of ongoing neck and back pain. A note dated March 12, 2022, states that he had difficulty walking, standing, sustaining prolonged positions, bending and overhead arm movement which impact his activities of daily living, self care and work activities. The applicant submits that he did not return to work post-accident, however, I find that he did not submit any evidence to support this. Entries in April, June and September 2022 note that the applicant had problems with bending, lifting, sitting and standing for long periods of time. I find the CNRs of the clinic unclear regarding whether these notes reflect the applicant’s self-reports of his functional limitations as opposed to a medical opinion confirming functional impairment.

16Further, the CNRs of Vellore Medical Centre establish that he attended the clinic six times between March and August 2022 and did not make any complaints about any accident-related pain or functional impairment. Further, between September 2022 and July 2023 he visited this clinic several times and did not make any accident-related complaints. I find the large gap in time in which the applicant did not make any accident-related complaints does not support that he suffers from chronic pain.

17The applicant relies on the Reconsideration Decision in 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (“17-000835”) where the Executive Chair defined chronic pain as “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months” which adversely affects the individual's wellbeing. The applicant submits that his case is similar in that his pain has lasted longer than 6 months. I disagree. I find 17-000835 is distinguishable from the present case because in the original decision the adjudicator accepted that the insured was diagnosed with chronic pain syndrome yet concluded the insured was still in the MIG which was grounds for reconsideration. In this case there is no diagnosis of chronic pain syndrome and the evidence of functional impairment in this case is unclear.

18In addition, I find the OCF-3 and OCF-18s relied upon by the applicant note sprain and strain impairments which fit within the MIG. Further the post-accident MRI supports that the had degenerative changes of the lumbar spine. I find the applicant has not linked this condition to the accident.

19Finally, the IE of Dr. Naiman diagnosed the applicant with soft tissue injuries which fit within the MIG. The doctor conducted a physical examination which revealed that the applicant’s range of motion (“ROM”) was normal and that strength testing in the upper and lower extremities was normal. The doctor determined that the applicant sustained uncomplicated myofascial injuries which could be treated in the MIG. I accept Dr. Naiman’s opinion because the applicant did not direct me to sufficient evidence to refute this opinion.

20For the above-noted reasons, the applicant has not met his onus in proving on a balance of probabilities that he suffers from chronic pain as a result of the accident which warrants removal from the MIG.

The applicant is not entitled to the four OCF-18s for physiotherapy proposed by 2299281 Ontario Inc

21The applicant submits that the four OCF-18s recommending physiotherapy are reasonable and necessary because he suffers from chronic pain and has diligently attended and incurred any available treatment despite the respondent’s denials. Further, he maintains that the respondent has only paid $1,675.00 toward this treatment, leaving an outstanding balance at the clinic.

22The respondent argues that the applicant is not entitled to any of the disputed OCF-18s for physiotherapy proposed by 2299281 Ontario Inc. because each OCF-18 sought treatment outside of the MIG limits. Further, the goals of all of the OCF-18s were to increase strength, range of motion and reduce pain. It submits that Dr. Naiman’s IE demonstrates that as of the date the OCF-18s were submitted the applicant had full ROM and normal strength in the upper and lower extremities. Therefore, these goals are unnecessary because they have already been achieved.

23I find the applicant is not entitled to any of the OCF-18s in dispute because they all seek treatment outside of the MIG limit. Further, I agree with the respondent that Dr. Naiman’s physical examination of the applicant concluded that the applicant’s ROM and strength in his upper and lower extremities was normal. Therefore, I find the goals of increasing his ROM and strength would be unnecessary. As a result, I find the applicant has not proven on a balance of probabilities that the OCF-18s in dispute are reasonable and necessary. However, he may still apply for treatment within the MIG limit.

The applicant is not entitled to payment of interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.

ORDER

25For all of the above-noted reasons, I find the applicant’s impairments fit within the MIG. He is not entitled to any of the OCF-18s in dispute or interest because they seek treatment outside of the MIG limit.