Citation: Takwa v. Co-operators General Insurance Company, 2025 ONLAT 23-006361/AABS

Licence Appeal Tribunal File Number: 23-006361/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:

Ghassan Takwa

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Denis Chubar, Paralegal

For the Respondent:

Laura Emmett, Counsel

HEARD:

By way of written submissions

1Ghassan Takwa, (the “applicant”), was involved in an automobile accident on April 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 Co-operators General Insurance Company (the “respondent”), 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 $399.00 ($1,297.25 less $898.25 approved) for chiropractic services, proposed by OMNI Health in a treatment plan/OCF-18 (“OCF-18”) dated December 12, 2022?

iii. Is the applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week from February 13, 2023 to date and ongoing?

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

3For issue (iii), the Case Conference Report and Order, released on January 30, 2024, noted that IRBs were in dispute from April 10, 2022. However, the applicant in his submissions clarified that he was seeking IRBs from February 13, 2023 to date and ongoing. As such, for issue (iii) it has been reflected above, that the time period in dispute for IRBs is February 13, 2023 to date and ongoing.

RESULT

4I find that:

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

ii. He is not entitled to the OCF-18, nor interest.

iii. The applicant is not entitled to IRBs, nor interest.

iv. The application is dismissed.

ANALYSIS

The applicant remains within the MIG

5I find that the applicant has not demonstrated on a balance of probabilities that he suffers from an injury or condition that warrants removal from the MIG.

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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 person 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 injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury 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.

8In all cases, the burden of proof lies with the applicant. Here, the applicant argued that he suffered from both physical and psychological injuries from the accident. I infer from his submissions that this is his basis for removal from the MIG. To support his position, the applicant relies upon the Disability Certificate (“OCF-3”), dated April 11, 2022, an OCF-18, dated December 12, 2022, and an OCF-3, dated January 17, 2023.

9The respondent counters that the applicant has not provided sufficient medical evidence to suggest that he sustained a non-MIG injury as a result of the accident. To this end, it relies upon the s. 44 physiatry evaluation report of Dr. Andrew Gwardjan, physiatrist, dated January 25, 2023.

10The applicant’s claim of physical injuries warranting removal from the MIG lacks sufficient evidentiary support. Indeed, both the OCF-3s, dated April 11, 2022, and January 17, 2023, largely identified whiplash, and sprain/strain injuries that are captured within the MIG definition. I acknowledge that both OCF-3s completed by Dr. Kaushal, chiropractor, diagnosed the applicant with sciatica and bursitis. However, the applicant has not produced any corroborating medical evidence, such as diagnostic imaging, or clinical notes and records from a treating practitioner, to support these diagnoses. As a result, I place little weight on the diagnoses of sciatica and bursitis as it is not supported by any corroborating medical evidence and Dr. Kaushal provided no rationale on how he arrived at these diagnoses.

11In a similar vein, the OCF-18 also identified whiplash and sprain/strain type injuries that are within the MIG. I also place limited weight on the diagnosis of sciatica by Dr. Kaushal because the applicant has not produced corroborating medical evidence to support this diagnosis and Dr. Kaushal provided no rationale on how he arrived at this conclusion.

12Finally, the applicant did not tender evidence to support that he has a psychological impairment from this accident. I acknowledge that he argues that he has psychological injuries, however it is well-settled that submissions are not evidence.

13In short, I find that the applicant has fallen well short of establishing he should be removed from the MIG. My finding is supported by the dearth of medical evidence, that there is no evidence to support a psychological diagnosis and because Dr. Gwardjan diagnosed the applicant with soft tissue injuries to the axial spine, shoulders, and left wrist. On the limited medical evidence available, I see no reason to disagree with this opinion.

14Given the entire $3,500.00 funding limit under the MIG have been exhausted, no additional analysis is required to determine if the OCF-18 in dispute is reasonable and necessary pursuant to the Schedule.

The applicant has not established entitlement to IRBs

15I find that the applicant has not met his burden to prove his entitlement to IRBs

16Entitlement to an IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)1(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his employment or self-employment.

17Section 6(2) provides that the benefit is only payable after 104 weeks of disability if, as a result of the accident, the person suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.

18The applicant has not met his burden to prove his entitlement to IRBs. The applicant’s submissions provide a description of the accident, and a summary of the OCF-3s, and an Employer’s Confirmation Form (“OCF-2”), dated November 24, 2021, and that his physical and psychological injuries caused income loss. Significantly, the applicant provided no submissions on his previous employment, and whether or how he was substantially unable to perform the essential tasks of his pre-accident employment as a result of the accident. Further, there is no reference to the legal framework that sets out the criteria needed to prove that he meets the pre-104 IRB test. The applicant must direct the Tribunal to the relevant evidence in support of his case and explain why he meets the test for IRB. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make his case.

19Despite the fact that the submissions of the applicant are virtually devoid of any legal argument, I have considered the evidence provided. I find that the applicant has fallen well short of meeting his burden.

20First, the applicant provided no submissions on what the essential tasks of his employment were and why he was substantially unable to perform these tasks, which is the test for pre-104 IRBs. In a similar vein, the applicant did not address what employment he is reasonably suited for or why he suffers a complete inability to perform this employment.

21Second, in any event, I acknowledge that the OCF-2 identified that the applicant worked as a barber prior to the accident and was required to cut, trim hair, shave, and shape client’s beards, and mustaches. However, the applicant has tendered limited medical evidence to support that he was substantially unable to perform these tasks or that he suffers a complete inability to perform these tasks.

22Rather, the applicant relies solely on the OCF-3s to support entitlement to IRBs. However, an OCF-3 alone does not establish whether an applicant meets entitlement to IRB. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident. Moreover, Dr. Kaushal did not identify the applicant’s essential tasks of employment or why the applicant was substantially unable to perform these tasks, other than vaguely concluding that the applicant was unable to work. Further, the applicant has not produced any medical evidence that corroborates Dr. Kaushal’s opinion.

23Third, I also place significant weight on the surveillance footage and photographs that were taken by an investigator retained by the respondent. This is because the photographs and footage show that on August 25, 2023, the applicant was in his garage with unidentified male individuals and cutting their hair, trimming facial hair, and washing their hair. Therefore, I find that there is evidence before me that demonstrates that the applicant is able to perform the essential tasks of his pre-accident employment, as a barber during the period in dispute.

24Lastly, I prefer the opinion of Dr. Gwardjan over Dr. Kaushal for the following three reasons. First, Dr. Gwardjan conducted an in person-assessment, meanwhile it is unclear from Dr. Kaushal’s OCF-3s whether an assessment was conducted. Second, Dr. Gwardjan conducted an objective physical examination which revealed that the applicant had self-limited range of motion in the absence of positive orthopaedic findings. In comparison, Dr. Kaushal conducted no physical examination of the applicant in his OCF-3s. Third, Dr. Gwardjan’s opinion that the applicant does not suffer a substantial inability to perform the essential tasks of his employment was supported by the lack of medical evidence and his objective physical examination as noted above. Meanwhile, Dr. Kaushal provided no rationale on why the applicant is substantially unable to perform his essential tasks, other than vaguely stating that the applicant is unable to work.

25In short, I find that the applicant has not met his evidentiary onus to establish entitlement to IRBs because he provided no specific submissions on the legal test, there is no corroborating medical evidence to support the OCF-3s, Dr. Gwardjan has opined that the applicant does not meet the pre-104 IRB test, and there is surveillance footage of the applicant working in his garage on August 25, 2023.

The applicant is not entitled to interest pursuant to s. 51 of the Schedule

26Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

27For the reasons outlined above, I find that: