Licence Appeal Tribunal File Number: 23-011068/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:
Rafel Singh
Applicant
and
Wawanesa Insurance
Respondent
AMENDED DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Nicholas Whelan, Paralegal
For the Respondent:
Laura Bruce Marco Fantin, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rafel Singh, the applicant, was involved in an automobile accident on November 26, 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, Wawanesa Insurance, 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 a non-earner benefit (“NEB”) of $185.00 per week from December 26, 2021, to November 26, 2023?
iii. Is the applicant entitled to $1,162.48 ($2,862.48 less $1,700.00 approved) for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated December 17, 2021?
iv. Is the applicant entitled to $1,242.71($2,342.71 less $1,100.00 approved) for physiotherapy services, proposed by 101 Physio in a plan dated March 30, 2022?
v. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan dated January 17, 2022?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant’s impairments are predominantly minor, and thus, the MIG limit applies.
As the applicant is subject to the MIG, it is not necessary to consider whether the disputed treatment and assessment plans are reasonable and necessary.
The applicant is not entitled to an NEB, interest, or an award.
ANALYSIS
Are the applicant’s injuries predominantly minor?
4I find that the applicant's injuries fall within the MIG.
5Section 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.”
6An 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 injury or 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.
7The applicant asserts that his injuries warrant removal from the MIG on the basis of chronic pain and supported this claim with psychological reports and treatment records. He relies on the psychological assessment conducted by Dr. Konstantinos Papazoglou, a psychologist.
8The respondent argues that the applicant’s injuries are consistent with soft tissue damage, as there is no diagnostic imaging, and treatment concluded in early 2022. Dr. Ratheishan Rajesan’s clinical notes and records (“CNRs”) do not support injuries beyond the MIG.
Has the applicant sustained chronic pain with a functional impairment?
9I find that the applicant has not sustained chronic pain as a result of the accident.
10The applicant relies on the CNRs from his family doctor, Dr. Ratheishan Rajesan. On December 20, 2021, the family doctor confirmed that there are no imaging results or any specialist appointments relevant to chronic pain.
11The respondent contends that medical records do not confirm a diagnosis of chronic pain, pointing out that the applicant was not prescribed medication following the accident, which weakens claims of ongoing pain. The respondent maintains that the records do not substantiate accident-related chronic pain, as injuries are minor soft tissue injuries within the MIG definition.
12Based on my review of the CNRs from Dr. Rajesan dated December 22, 2021, I find that the evidence does not support the presence of a concussion or persistent accident-related symptoms. While the applicant occasionally reported lower back pain and discomfort on the left side of the upper back, he generally indicated feeling well. He also mentioned experiencing headaches, which he initially attributed to post-concussion syndrome. However, the CNRs do not document any signs of a concussion at the time of the accident. Instead, Dr. Rajesan concluded that the headaches were more likely related to sinus issues triggering migraines and did not identify any specific pain linked to the accident.
13The CNRs from Mr. Mohsen Afshar, a physiotherapist at LifeMark Kingston & Brock, covering the period from November 26, 2021, to May 5, 2022, indicate that the applicant reported pain at the front of the head. Mr. Afshar noted that the applicant did not exhibit any neurological symptoms and had a history of a concussion 14 years prior, with no current signs of recurrence. The applicant was diagnosed with Whiplash-Associated Disorder Grade 2 (WAD2) and a lumbar spine (LSP) sprain and strain.
14There have been no follow-ups with the family doctor regarding the accident-related complaints. In fact, on January 24, 2022, Dr. Rajesan noted that the applicant did not attend his appointment.
15I find that the applicant has not established that he suffers from chronic pain as a result of the accident. While the applicant relies on the CNRs from his family doctor, Dr. Rajesan, these records do not support a diagnosis of chronic pain. The CNRs dated June 12, 2023, reference unrelated medical issues, such as corns on both feet and a wrist injury from sporting activities, with no mention of ongoing accident-related symptoms. There is no indication that the applicant pursued further medical treatment or follow-up for pain allegedly stemming from the accident, despite being advised to report persistent symptoms.
16The applicant has not submitted an express diagnosis of chronic pain from any treating physician or specialist. Nor has he provided evidence that engages with the American Medical Association (AMA) Guides criteria to establish a severe or prolonged functional impairment. While he reported intermittent pain and headaches, these were not linked by any medical professional to the accident. The physiotherapy records from Mr. Afshar note a diagnosis of WAD2 and lumbar sprain/strain, but do not support a chronic condition or significant functional limitation. The applicant also returned to work and did not provide evidence of disruption to daily living or employment. On the balance of probabilities, I find that the applicant has not met the burden of proof to establish chronic pain or to justify removal from the MIG.
17As I have determined the applicant has not established that he has chronic pain, I do not need to consider the second part of the test related to functional impairment.
18Consequently, I conclude, based on the balance of probabilities, that the applicant did not demonstrate that he sustained chronic pain that warrants removal from the MIG.
Has the applicant sustained psychological impairments that warrant removal from the MIG?
19I find that the applicant did not sustain psychological impairments that warrant removal from the MIG as a result of the accident.
20The applicant relies on the s.25 report dated April 20, 2022, by Dr. Konstantinos Papazoglou, a psychologist. Dr. Papazoglou evaluated the applicant through several psychological tests, of which most produced moderate scores. However, he diagnosed the applicant with adjustment disorder (with mixed anxiety and depressed mood) and specific (isolated) phobia (Driving/Passenger).
21The respondent did not comment on psychological impairments or provide evidence about mental or emotional issues from the accident.
22I place limited weight on the s.25 psychological report for several reasons. While the diagnosis itself, reflecting a mild emotional response to a motor vehicle accident, is not uncommon, the severity scores reported in the assessment appear elevated relative to the diagnosis provided. For example, the scores suggest moderate to severe psychological impairment, yet the diagnosis does not reflect a condition of that intensity, such as major depressive disorder or PTSD. This discrepancy raises questions about the internal consistency of the report.
23Additionally, there is no corroborating medical evidence from other treating providers to support the presence of psychological symptoms. While I acknowledge that family doctors and physiotherapists are not mental health specialists, it is reasonable to expect that if the applicant were experiencing significant psychological distress, some reference to such symptoms would appear in the broader medical record, particularly given the duration of treatment and follow-up. In this case, the applicant did not report any psychological concerns to his family doctor or other providers before or after the psychological report was issued. As such, I find the report lacks sufficient support from contemporaneous medical documentation to be given significant weight.
24The applicant relies on a referral from his family doctor to Lakeridge Health Mental Health & Addictions Central Connect, dated June 14, 2023, as evidence of psychological impairment. However, this referral specifically concerns an assessment for ADHD and is not related to any psychological condition arising from the motor vehicle accident. As such, it does not support the Applicant’s claim of accident-related psychological impairment.
25While the section 25 psychological report does contain a diagnosis of a psychological impairment, I assign it limited weight in this case. The diagnosis appears to be an outlier when considered against the broader body of evidence, including the CNRs from the applicant’s family doctor and other treating providers. These records do not document any psychological complaints or symptoms before or after the report was issued. Moreover, the applicant did not seek or receive any psychological treatment related to the accident, nor did he report psychological concerns to his family doctor or physiotherapist during the relevant period. The absence of any corroborating or contemporaneous documentation reduces the reliability of the diagnosis in this context.
26The respondent did not make submissions specifically addressing psychological impairments but maintained that the applicant’s injuries fall within the MIG. On the balance of probabilities, and in light of the limited supporting evidence, I find that the applicant has not demonstrated that he sustained psychological impairments arising from the accident that would warrant removal from the MIG.
27Consequently, I find, on a balance of probabilities, that the applicant's injuries fall within the MIG.
Is the applicant entitled to the disputed treatment and assessment plans?
28Since I have determined that the applicant has not demonstrated that his accident-related impairments necessitate treatment beyond the MIG limits, it is unnecessary for me to evaluate the reasonableness and necessity of the disputed treatment and assessment plans.
Is the applicant entitled to an NEB?
29The applicant is not entitled to an NEB.
30Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) of the Schedule defines a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre- and post-accident activities.
31Section 36(4) of the Schedule states that within 10 business days of receiving the application and disability certificate, the insurer shall either pay the benefit, notify the applicant of reasons for denial and examination requirements, or send a request under subsection 33(1) for further information or s.33 (2) for an examination under oath. Section 36(6) provides that if the insurer does not comply, it shall pay for the specified benefit for the benefit starting on the day the insurer received the application and completed OCF-3, and ending the day the insurer gives a compliant notice.
32The applicant raises two arguments. First, he contends that the denial letter dated March 23, 2022, was boilerplate and failed to meet the requirements set out in s. 36(4) of the Schedule. Second, apart from the procedural argument under s. 36, he also makes a substantive claim of functional impairment, relying on Dr. Papazoglou’s assessment to support this position.
33The respondent argues that the denial was due to insufficient medical evidence supporting the criteria for NEB and that the applicant had resumed work.
Was the respondent’s denial letter in compliance with the Schedule?
34The applicant contends that the denial is non-compliant with the Schedule because it lacks specific medical reasons on why the insurer does not believe the applicant is entitled to a NEB. He claims that the benefit should be granted.
35The respondent submits that the denial was appropriate and based on the evidentiary record available at the time.
36I find that the denial letter dated March 23, 2022, satisfies the procedural requirements under section 36(4) of the Schedule. The letter clearly states that the applicant was denied the NEB due to insufficient medical evidence to support a complete inability to carry on a normal life as a result of the accident. It also notes that, at the time of the denial, the respondent had not yet received the applicant’s CNRs. While the applicant later submitted additional medical documentation, this was provided after the denial was issued. As such, I find that the respondent’s explanation was timely, specific, and based on the evidentiary record available at the time, thereby meeting the Schedule’s procedural requirements.
Did the applicant meet the NEB criteria?
37The applicant relies on the Disability Certificate (OCF-3), which states that he is substantially unable to perform the essential tasks of his employment as a result of the accident. The form indicates that he may attempt to return to work as tolerated, with modifications as needed. It further notes that the applicant suffers from a complete inability to carry on a normal life, citing limitations in his physical capacity and a reduction in his previously active lifestyle due to pain.
38The applicant did not provide detailed information comparing his pre- and post-accident activities. However, he submits that the respondent failed to specify which diagnoses it disputes and has not conducted any medical assessments to evaluate his entitlement to the benefit. He relies on the CNRs and Dr. Papazoglou’s s. 25 report to support his position that he has sustained impairments preventing him from engaging in most of the activities he performed prior to the accident. For example, the applicant states that, despite returning to work out of financial necessity, he still experiences significant physical pain and psychological distress. His job involves physical tasks like lifting, carrying, bending, prolonged sitting, and driving, which he cannot perform efficiently. He reports avoiding heavy traffic, spending less time on the road, and shifting to more administrative duties due to his limitations.
39The respondent explains that the applicant was working as a Director of Operations during the time of the accident and did not miss any work, according to the CNRs of Dr. Rajesan from December 20, 2021, to November 16, 2023. It maintains that denying the applicant’s claim for an NEB was appropriate because the evidence shows that he is still able to live a normal life after the accident. The respondent points out that the medical records do not show any physical or mental impairments and indicate that he remains active, employed, and managing other health issues. For instance, although Dr. Papazoglou’s report mentions that the applicant experienced performance issues at work due to the accident, a closer look at Dr. Rajesan’s CNRs shows that his complaints of pain at work were caused by factors unrelated to the accident. Overall, the respondent feels this context weakens the applicant’s claim of incapacity due to the accident.
40While I place limited weight on Dr. Papazoglou’s report for the reasons outlined above, I find that it is the only document in the record that provides any detail regarding the applicant’s pre- and post-accident activities. The applicant did not provide his own submissions or evidence addressing how his functional abilities have changed under the Heath framework, which would have allowed for a more thorough analysis. Instead, he appears to rely solely on the activity limitations described in Dr. Papazoglou’s report to support his entitlement. According to that report, the applicant was working in the family courier business at the time of the accident and returned to work afterward. However, the report also notes that he experienced difficulty performing physically demanding tasks and had to modify his duties. Based on the totality of the evidence, I find that while the report offers some insight into the applicant’s functioning, it is not sufficiently supported by other contemporaneous or corroborating medical records to establish a complete inability to carry on a normal life.
41According to the CNRs from Dr. Rajesan dated June 12, 2023, the applicant is in the process of obtaining a real estate licence. I find this information relevant to the Heath test, as it suggests that the applicant is actively pursuing a new professional qualification, which may indicate a level of functional capacity and engagement inconsistent with a complete inability to carry on a normal life. While retraining or career changes do not automatically disqualify a person from entitlement, the pursuit of a real estate licence, particularly in the absence of medical evidence showing that this effort is significantly impaired, undermines the applicant’s claim of a complete functional incapacity resulting from the accident.
42Consequently, I find that the applicant did not demonstrate on a balance of probabilities that he meets the requirements for an NEB; therefore, he is not entitled to an NEB.
Interest
43Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are awarded, the issue of interest does not arise.
Award
44The applicant seeks an award under s. 10 of O. Reg. 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As the respondent did not withhold or delay benefits, it is not liable to pay an award.
ORDER
45For the above reasons, it is ordered that:
The applicant’s impairments are predominantly minor, and thus, the MIG limit applies.
As the applicant is subject to the MIG, it is not necessary to consider whether the disputed treatment and assessment plans are reasonable and necessary.
The applicant is not entitled to an NEB, interest, or an award.
Released: August 12, 2025
Harouna Saley Sidibé
Adjudicator