Shiraz Bhanji v. Wawanesa Mutual Insurance Company, 2025 CanLII 5885

Licence Appeal Tribunal File Number: 23-000790/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:

Shiraz Bhanji

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Arvin Gupta, Counsel

For the Respondent: Gabrielle Nigro, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Shiraz Bhanji, the applicant, was involved in an automobile accident on August 2, 2020 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 $2,486.00 for a psychological assessment, proposed by Paramount Medical Assessments in a treatment plan submitted February 5, 2021?

RESULT

3On the totality of the evidence submitted to me, I find:

i. The applicant sustained minor injuries and can be treated in the monetary limits in the MIG.

ii. The applicant is not entitled to the disputed treatment plan.

iii. The application is dismissed.

Minor Injury Guideline (MIG)

4Section 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.”

5An 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.

Analysis

The Applicant’s injuries can be treated within the MIG and are predominately minor in nature.

6I find that the applicant’s injuries don’t require removal from the MIG.

7The applicant submits on or about September 3, 2020, a (OCF- 3) states that the applicant has suffered from a sleep problem, headache, anxiety, sprain, strain of cervical spine, neck sprain and strain of lumbar spine, sprain and strain of sacalliac joint, lifestyle changes, sprain and strain of shoulder joint, limitation of activities, other physical and mental strain related to work.

8On September 3, 2020, the applicant received a treatment confirmation form (OCF-23) and was pre-approved for physical therapy and rehabilitation. The applicant attended his physiotherapy treatments.

9The clinical notes and records from Ajax Rehabilitation Centre indicate numerous complaints of severe vertigo and multiple complaints of pain and stiffness in neck and right low back. The CNR’s from Dr. Sinha suggest that the applicant was prescribed with serc for vertigo and a recommendation for a left shoulder x-ray and ultrasound for the pain.

10Furthermore, as indicated in the CNRs from Dr. Sinha, applicant’s family doctor dated July 19, 2022, the applicant was assessed at Pickering Centre for a sleep disorder on or about August 24, 2022. This test was supervised by Dr. K. Buttoo of the clinic and the results were 6 hours of total sleep. The sleep efficiency was 84.8%. The conclusion of this test states that the applicant’s sleep was normal, ECG showed a sinus rhythm. There was no PLM’s present during the study. There were recommendations to the applicant to improve his/her was to lose weight and the avoidance of alcohol and nicotine would potentially improve his/her nightly sleep.

11The respondent submits that the applicant’s injuries are predominately minor in nature and his injuries can be treated within the MIG.

12The respondent suggests, the applicant does not suffer a psychological impairment. The only documentation that the applicant has provided in support of same is a psychology screening report which is not sufficient evidence to establish removal from the MIG.

13I agree with the respondent that there is no expert medical evidence supporting the applicant’s injuries being a physical one or a psychological one. In the CNRs of Dr. Sinha dated July 19, 2022, I find the family doctor failed to refer the applicant to any expert medical professional for further assessment. On this basis, I find that there is a lack of any expert or additional medical evidence to suggest that the applicant’s injury is more than minor.

14The applicant has failed to submit any medical documentation to establish that he sustained injuries as a result of the of the accident. He did not attend hospital, no diagnostic imaging or other investigations have taken place. There have been no referrals to any specialists or medical experts. The applicant has not obtained any expert reports to support removal from the MIG. The Applicant has the onus to establish that he sustained injuries that fall outside the MIG, the respondent has suggested that he/she has failed to submit any medical documentation to the Insurer that would establish injuries beyond the MIG.

15I also find the applicant has not put before me any supporting evidence that would support any psychological injury to support his case. The sleep disorder test dated August 24, 2022, indicate that the applicant has no sleep disorder and that his sleep was normal at the time of testing. I find for the above reasons that applicant failed to establish that they suffer from a non-minor injury and therefore should be removed from the MIG.

16Since the applicant is held to the funding limit of the MIG, I find there is no need to assess whether the disputed treatment plan is reasonable and necessary.

ORDER

17As a result of the above and on a balance of probabilities, I find that:

i. The applicant’s injury is minor and can be treatment within the monetary limits of the MIG.

ii. The applicant is not entitled to the disputed treatment plan.

iii. The application is dismissed.