Licence Appeal Tribunal File Number: 23-013719/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:
Renwick Babwah
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Doug Wright, Counsel
For the Respondent: Tefiney E Scarlett, Paralegal
HEARD: In Writing
OVERVIEW
1Renwick Babwah, the applicant, was involved in an automobile accident on March 31, 2023, 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 Insurance Company of Canada, 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 $4,190.04 for physiotherapy services, proposed by Taunton Garden Physio and Rehab in a treatment plan/OCF-18 (“plan”) dated April 6, 2023?
iii. Is the applicant entitled to $325.00 ($1,625.00 less $1,300.00 approved) for physiotherapy services, proposed by Taunton Garden Physio and Rehab in a treatment plan dated July 4, 2023?
iv. Is the applicant entitled to $2,554.40 for physiotherapy services, proposed by Taunton Garden Physio and Rehab in a treatment plan dated October 18, 2023?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed.
i. The applicant is being held to the Minor Injury Guideline.
ii. As the applicant is in the MIG, I do not need to consider if the treatment plans in dispute are reasonable and necessary.
iii. No interest or award are payable.
ANALYSIS
Minor Injury Guideline
Partial Thickness Tear
4The applicant has not met his onus to establish that he should be removed from 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 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 submits he should be removed from the MIG due to a partial tear in a tendon in his left shoulder which occurred in the accident. He submits this tear has led to chronic and persistent pain.
8To support his claim, the applicant is relying on diagnostic imaging reports – specifically, an ultrasound image taken April 4, 2023, and an MRI taken on December 20, 2023.
9The ultrasound report indicates the applicant has suffered a “low-grade instrasubstance subscapularis tear.” This finding is further confirmed by the MRI, where the report describes a “posteroinferior labral tear with small paralabral cysts” and further states “the subscapularis tendon is otherwise intact without a discrete tear.”
10The respondent submits that the injury is minor in nature. To support its claim, they are relying on the s.44 Insurer Examination (IE) medical report of Dr. Esmat Dessouki, an Orthopaedic Surgeon, from November 20, 2023. They also rely on an addendum report from Dr. Dessouki dated January 30, 2024.
11Dr. Dessouki stated in his original report that there was no objective evidence of residual musculoskeletal impairment attributable to the injuries the applicant sustained in the accident. He confirmed this opinion in his addendum report, saying his accident diagnosis is consistent with cervical and left shoulder strain, and should be considered a minor injury.
12A partial tear, such as an intrasubstance tear, is caught within MIG guidelines and does not meet the threshold of a major injury. Superintendent’s Guideline No. 01/14,(section 2.c) defines a strain as “an injury to one or more muscles, including a partial but not a complete tear.”
13I have not been provided with objective medical evidence which indicates the applicant has suffered an injury more severe than a partial tear.
14For these reasons, I find the applicant has not met the onus to warrant removal from the MIG due to his partial thickness tear.
Chronic Pain
15I also find the applicant has not met the onus to warrant removal from the MIG due to chronic pain.
16It should be noted that reports of ongoing pain on its own do not merit removal from the MIG. Rather the applicant must establish chronic pain with a functional impairment.
17While it is the applicant’s onus to prove his claim, I was only provided with limited medical evidence. While the applicant has also provided the accident report and the ER report from the date of the accident, I have not been provided with ongoing medical clinical notes and records or other further contemporaneous medical evidence to support the applicant’s claim. Nor have I been led to sufficient medical evidence to support that the applicant is suffering a functional impairment as a result of chronic pain.
18For these reasons, I find, on the balance of probabilities, that the applicant has not met his onus to establish he should be removed from the MIG due to chronic pain.
19As the applicant is being held to the MIG, it is not necessary to determine if the treatment plans in dispute are a reasonable and necessary.
Interest
20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
21The 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. As no benefits are withheld or delayed, no award is payable.
ORDER
22The application is dismissed.
i. The applicant is being held to the Minor Injury Guideline.
ii. As the applicant is in the MIG, I do not need to consider if the treatment plans in dispute are reasonable and necessary.
iii. No interest or award are payable.
Released: September 26, 2025
Jeff Chatterton
Adjudicator