Yousaf v. Aviva General Insurance, 2025 CanLII 8027

Citation: Yousaf v. Aviva General Insurance, 2025 ONLAT 22-012081/AABS

Licence Appeal Tribunal File Number: 22-012081/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:

Zulfiqar Yousaf

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Mariana Slomyanski, Counsel

For the Respondent: Alicia Edwards, Counsel

HEARD: By way of written submissions

OVERVIEW

1Zulfiqar Yousaf, the applicant, was involved in an automobile accident on November 8, 2017, 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, Aviva General 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:

1. Are the applicant's injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit?

2. Is the applicant entitled to $3,370.33 for chiropractic services, proposed by Prime Plus Care Health Centre in a treatment plan/OCF-18 ("plan") dated June 10, 2021?

3. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Perfect Choice Psychological Services in a plan dated July 12, 2021?

4. Is the applicant entitled to $2,825.00 for a chronic pain assessment, proposed by Optimal Assessment Health Centre in a plan dated June 10, 2021?

5. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

1. The applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to treatment within the $3,500.00 MIG funding limit.

2. The applicant is not entitled to any of the disputed treatment plans nor interest.

3. The applicant is not entitled to an award.

4. The application is dismissed.

PROCEDURAL ISSUES

4The respondent argues that the applicant's submissions were filed close to the end of business on March 18, 2024, 12 days after the deadline, which prejudiced the respondent by leaving it too little time to properly review or respond to the submissions or file a Notice of Motion. The respondent requested that the applicant's submissions be struck from the record in accordance with Rule 9.4 of the Rules, or in the alternate, be given less weight.

5I agree with the respondent that the applicant did not meet the deadlines as listed in the CCRO. It is important to follow the Tribunal's orders, however, the respondent has not provided any evidence that it was prevented from providing a defence in this hearing. Considering the prejudice to both parties, I find that excluding the entirety of the applicant's submissions would be unduly prejudicial and contrary to procedural fairness, as it would effectively bar the applicant from participating in these proceedings. I therefore deny the respondent's request to strike the applicant's submissions.

6I further deny the respondent's request to afford the entirety of the submissions less weight, as the respondent has provided submissions which address the issues in dispute in this matter. I will assign the weight to the parties' submission as I consider appropriate in light of the evidence and arguments they each put forward.

ANALYSIS

The applicant is not removed from the MIG

7I find that the applicant has not met his onus to prove on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

8Section 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."

9An 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.

10In this matter, the applicant submits that he suffers from chronic pain and a psychological impairment that warrant the applicant's removal from the MIG. The respondent submits that the applicant has not met his onus to prove that his injuries are not predominately minor and that they cannot be treated within the confines of the MIG.

a) Chronic Pain

11I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident such that he is removed from the MIG on this basis.

12The applicant submits that he suffers from chronic pain in the neck, thorax, lower back and pelvis as a result of the accident. The applicant relies on the plan for a chronic pain assessment prepared by of Dr. Michael Gofeld of the Optimal Health Assessment Centre dated June 10, 2021. The applicant further relies on the Clinical Notes and Records (CNRs) of the Scarborough Hospital Network (Centenary Hospital), the CNRs of Dr. Karan Nagra, physician, of Markham Corners' Clinic, and the CNRs of Dr. A. H. Babar of Doctors Urgent Care and Family Medicine.

13The respondent relies on the insurer's examination reports (IEs) of Dr. Pravesh Jugnundan, physician, dated November 8, 2021, in which Dr. Jugnundan opines that his examination of the applicant found "no suspicion of a chronic pain disorder."

14I find that the applicant has not established that he experiences ongoing neck pain. The applicant submits that he was taken to the Scarborough General Hospital by ambulance immediately after the accident, on November 8, 2017with back and neck pain, as well as pain and swelling in his left arm and leg. The applicant further submits he was taken for imaging that day, however, the applicant did not provide any evidence in support of his claim that he attended Scarborough General Hospital on the day of the accident. Further, the applicant has not directed me to any evidence that he has complained of neck pain to any treatment provider since the accident, and the applicant did not complain of neck pain to Dr. Jugnundan at his s.44 examination on October 28, 2021

15Further, I find that the applicant has not established that he experiences ongoing thoracic pain. The evidence reveals that the applicant sought treatment for upper abdominal pain in the days following the accident. He visited Markham Corners Clinic on November 11, 2017 and Centenary Hospital emergency department on November 12, 2017 with complaints of abdominal pain and vomiting. The Scarborough Hospital Network (Centenary Hospital) CNRs reveal that the applicant was sent for x-ray imaging of his abdomen and cardiac testing, and was discharged the same day. The applicant has not directed me to any evidence that he complained of abdominal or chest pain to his family doctor or other treatment provider since November 12, 2017, and the applicant did not complain of thoracic pain to Dr. Jugnundan at his s.44 examination on October 28, 2021.

16The applicant did not complain of pain to his family physician, Dr Babar, until November 11, 2019, 2 years after the accident, when he complained of wrist and knee pain. The CNRs of Doctors Urgent Care and Family Medicine reveal that the applicant first complained to Dr. Babar of intermittent lower back pain, which he had been experiencing for 2 weeks, on February 16, 2021, more than 3 years after the accident. The applicant complained of lower back pain again on 4 further occasions in February 2021, May 2021, September 2021, and March 2022. Dr. Babar prescribed pain medication and recommended physiotherapy to the applicant. The applicant did not direct me to any evidence to explain how this pain is related to the accident.

17Even if I were to accept that the applicant's view that his lower back, calf and wrist pain is accident related, I am not persuaded that the applicant has met his burden to prove that he is experiencing chronic pain as a result of the accident.

18The CNRs of Doctors Urgent Care and Family Medicine include no diagnosis of chronic pain by a qualified healthcare practitioner, and the applicant has not directed me to any such diagnosis.

19In his plan for a chronic pain assessment dated June 10, 2021, Dr. Gofeld opines that the applicant's pain has lasted for more than six months and has become chronic, however Dr. Gofeld identifies multiple conditions, only one of which, lumbar back strain, is corroborated by contemporaneous medical evidence. As noted above, the applicant first complained lower back pain to his family doctor 5 months before on February 16, 2021. Additionally, Dr. Gofeld does not identify the specific locations of the referenced pain, and does not indicate that he has reviewed the applicant's medical records. Therefore, I assign Dr. Gofeld's plan less weight.

20I assign more weight to the IE because Dr. Jugnundan conducted a thorough physical examination and interview, and reviewed the applicant's medical records.

21In his s.44. examination on October 28, 2021, the applicant complained of ongoing lower back and left calf pain, and occasional wrist pain. Dr. Jugnundan diagnosed the applicant with mechanical low back pain, unspecified soft tissue injuries to the left calf, and residual wrist symptoms. Dr. Jugnundan opined that there was no suspicion that applicant was suffering from chronic pain.

22Further, I am not persuaded that the applicant demonstrated that his injuries had a detrimental impact on his functionality. While the OCF-3 indicates that the applicant has a complete inability to carry out a normal life, it was completed on December 18, 2017, less than six weeks after the accident. Dr. Gofeld's plan, dated June 10, 2021 indicates that the applicant is having difficulty with work and household chores, but is not sufficiently detailed to explain the extent of the difficulties. The applicant has not directed me to any evidence that he complained of any functional limitations to his family doctor, nor has the applicant identified how the pain affects his function. Absent any supporting medical or other evidence, or detailed explanation of functional impairment, the self-reports of the applicant to his plan preparers and IE examiners are not sufficient evidence to warrant a finding of chronic pain with functional impairment.

23For these reasons, the applicant is not removed from the MIG based on chronic pain.

b) Psychological impairment

24I find that the applicant has not proved on a balance of probabilities that he suffers from a psychological impairment that would remove him from the MIG.

25The applicant submits that he has sustained a psychological injury as a result of the accident. The applicant relies on the OCF-18 of Dr. Li Xin Bau, psychologist, dated July 12, 2021, which identifies adjustment, mood, and sleep disorders and recommends a psychological assessment and psychotherapy.

26The applicant also relies on the disability certificate (OCF-3) dated December 18, 2017, prepared by Dr. A. Nalli, chiropractor, of the Scarborough Health and Wellness Center, and the plan for chiropractic treatment prepared by Dr. Payam Pirnia, of Prime+ Care Health Centre, dated June 10, 2021 which both identify that the applicant complained of various psychological conditions including anxiety disorders and sleep disturbances.

27The respondent submits that the applicant has not met his evidentiary burden to prove that the applicant suffers from a psychological impairment. The respondent relies on the IE of Dr. Godwin Lau, psychologist, November 16, 2021.

28I assign less weight to Dr. Bau's plan, as his recommendations are based on a pre-screening telephone interview and are not supported by any medical evidence. Further, I place little weight on the OCF-3 and Dr. Prinia's plan, because they are not supported by contemporaneous medical evidence. Furthermore, Dr. Nalli and Dr. Pirnia are chiropractors, and it is beyond their scope of practice to opine on psychological conditions.

29I assign more weight to the IE, because Dr. Lau reviewed the applicant's medical records, and conducted a 2 ½ hour examination, which included an interview and psychometric testing. Dr. Lau opined that the applicant had "no indication of psychological impairment or need for treatment."

30Additionally, the applicant has not directed me to any evidence to establish that the applicant has complained of symptoms of a psychological impairment to any physician or treatment provider since the accident, and the IE reveals that the applicant told Dr Lau that he did not see a need for mental health intervention for himself.

31For these reasons, I find that the applicant has failed to meet his onus to prove on a balance of probabilities that he sustained a psychological injury that would remove him from the MIG.

Conclusion

32For the reasons detailed above, I find that the applicant suffered minor injuries in the accident. He has failed to demonstrate chronic pain with a functional impairment or psychological injuries which would warrant removal from the MIG.

33As a result, the applicant remains within the MIG and is subject to its $3,500.00 limit.

34As I have found that the applicant is not removed from the MIG, the applicant is also not entitled to any of the disputed treatment plans.

Interest

35As none of the disputed treatment plans are found to be owing, no interest applies.

Award

36The applicant sought an award under s. 10 of Reg. 664. Under s. 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.

37As no submissions were made referencing an award under s.10 of Reg. 664, there is no basis upon which to consider an award in this matter.

ORDER

38I find that:

1. The applicant's injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

2. The applicant is not entitled to any of the disputed treatment plans nor interest;

3. The applicant is not entitled to an award; and

4. The application is dismissed.