Kamal Mazraeh v. The Dominion of Canada General Insurance Company, 2025 CanLII 72419

Citation: Mazraeh v. The Dominion of Canada General Insurance Company, 2025 ONLAT 23-006526/AABS

Licence Appeal Tribunal File Number: 23-006526/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:

Kamal Mazraeh

Applicant

And

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Omar Duhaney, Paralegal

For the Respondent: Alfred Cheng, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kamal Mazraeh, the applicant, was involved in an automobile accident on October 2, 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, The Dominion of Canada General 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? Note: The parties agreed the MIG limits have been exhausted.

ii. Is the applicant entitled to $2,130.58 for chiropractic services, proposed by Avni Parmar in a treatment plan/OCF-18 (“plan”) submitted July 18, 2022, and denied October 20, 2022?

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

3Prior to the hearing, the applicant withdrew his dispute involving his entitlement to a non-earner benefit.

RESULT

4After reviewing both parties’ submissions and all the evidence, I find that the applicant sustained a minor injury which is subject to treatment within the MIG. He is not entitled to the OCF-18 for chiropractic treatment in the amount of $2, 130.58 or interest because the $3,500.00 MIG limits have been exhausted.

ANALYSIS

The applicant sustained a minor injury which is subject to treatment within the MIG.

5Section 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.”

6An 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.

7The applicant argues that he should be removed from the MIG because he had a pre-existing medical condition which would prevent him from achieving maximum medical recovery if kept in the MIG. In particular, he had a pre-existing tear of the ACL of his right knee which was exacerbated by the accident. The applicant relies on a disability certificate (“OCF-3”) completed by Dr. Maskan, chiropractor, dated November 22, 2021, which lists various impairments, the clinical notes and records (“CNRs”) of his family doctor, diagnostic imaging, and a consult note of Dr. Hanna, orthopaedic surgeon, dated February 23, 2022. He also submits that the insurer’s examination (“IE”) report of Dr. Naaman, physiatrist, dated February 5, 2022, supports that he had a pre-existing condition which warrants removal from the MIG.

8The respondent argues that the applicant’s accident-related impairments fall within the MIG. It acknowledges that there is medical evidence that supports that the applicant had a pre-existing medical condition. However, it contends that he has not provided compelling evidence of a treating health practitioner that this pre-existing condition would prevent him from achieving maximum medical recovery if kept in the MIG. It also maintains that the CNRs of the applicant’s family doctor and treating clinic do not establish that the applicant’s pre-existing right knee impairment was exacerbated by the accident as his right knee is rarely mentioned in these records. It relies on the IEs of Dr. Naaman and other medical assessors who determined that the applicant sustained a minor injury from both a physical and psychological perspective.

Pre-existing Condition

9I find the applicant is not removed from the MIG because of a pre-existing condition for the following reasons.

10First, although I agree with the applicant that there is evidence that he had a pre-existing medical condition in the form of an ACL tear, I find he has not submitted compelling evidence from a treating practitioner that states that this pre-existing medical condition would prevent him from achieving maximum medical recovery within the MIG, as required by s. 18(2). The applicant relies on a CNR of his family doctor dated October 5, 2021, where he reported bilateral knee pain. I find this one entry in the family doctor’s post-accident CNRs insufficient to support that his pre-accident medical condition supports MIG removal. The applicant attended his family doctor’s office two more times in 2021 where accident-related knee pain is not mentioned. Further, he attended three more times in 2022 where knee pain and functional impairment was not referred to.

11I also find the post-accident CNRs of the applicant’s treating clinic support that he attended 40 times in 2022 and was primarily treated for back and neck pain. I find that the CNRs of the family doctor and treating clinic are not compelling medical evidence that establishes that the applicant’s pre-existing knee injury would prevent him from achieving maximum medical recovery within the MIG.

12Second, I find the consult letter of Dr. Hanna, orthopaedic surgeon, dated February 23, 2022, unhelpful as it is brief and appears to be based on the applicant’s self-reports. The note states: “He did present today with a chronic history of right knee discomfort. He had multiple injuries to his right knee when in high school, he did have a football related injury. He also was involved in a fight in 2012 when he had an injury to his knee. He also had an mvc a couple months ago and has another trauma to his knee.” The note also indicated that the applicant complained of difficulty walking and discomfort and recommended that he have ACL reconstruction surgery and the doctor referred him to Dr. Rizek, who specializes in this type of surgery. As of the date of the hearing, the status of the applicant’s surgery is unknown.

13While I note that Dr. Hanna confirmed that the applicant had a chronic history of right knee pain and ACL tear, the doctor does not indicate to what extent this injury was exacerbated by the accident or that it would prevent him from achieving maximum medical recovery if the applicant is kept within the MIG.

14Third, in the IE occupational therapy report of Stewart Tsuji, the applicant reported that he was supposed to have ACL surgery on his right knee in 2020 but did not because of personal circumstances and delays caused by the COVID 19 pandemic. I find the applicant’s self-reports to the occupational therapist that he required surgery prior to the accident casts further doubt that his pre-existing ACL right knee injury was exacerbated by the accident or that the accident resulted in the need to have surgery. The applicant chose not to file reply submissions to address these arguments. Consequently, I was provided with no rebuttal to the respondent’s challenges to the medical evidence or the applicant’s position on removal from the MIG pursuant to s. 18(2).

15Finally, Dr. Naaman’s IE concluded that the applicant sustained a soft tissue injury to his right knee. The doctor’s physical examination of the right knee was normal and did not reveal any objective findings of ongoing impairment related to the accident. However, his physical examination did indicate some right knee laxity indicative of a pre-accident ACL injury. Despite this the doctor opined that these injuries could be treated in the MIG. Contrary to the applicant’s submissions, I find that Dr. Naaman’s reports do not support the applicant’s position. Further, I find the applicant has provided insufficient evidence to refute Dr. Namaan’s opinion.

16Although I acknowledge that the applicant had a pre-existing impairment to his right knee, what I find lacking is compelling medical evidence from a treating practitioner supporting that it would prevent recovery if he is treated within the MIG. This is the test that must be met for MIG removal as per s. 18(2) of the Schedule.

17For the above reasons, the applicant has not met his onus in proving on a balance of probabilities that he should be removed from the MIG due to any pre-existing condition.

18Since the MIG limits have been exhausted I need not address whether the OCF-18 for chiropractic treatment is reasonable and necessary.

The applicant is not entitled to interest.

19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that no payments are overdue the applicant is not entitled to interest.

ORDER

20For the above-noted reasons, I find the applicant sustained a minor injury which is subject to treatment within the MIG. He is not entitled to the OCF-18 for chiropractic treatment in the amount of $2,130.58 or interest because the $3,500.00 MIG limits have been exhausted.