Citation: Sarwar v. Definity Insurance Company, 2026 ONLAT 24-006558/AABS

Licence Appeal Tribunal File Number: 24-006558/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:

Saira Sarwar

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jim Zotalis

APPEARANCES:

For the Applicant:

Michelle Arzaga, Counsel

For the Respondent:

Jordan Hochman, Counsel

HEARD:

In Writing

OVERVIEW

1Saira Sarwar, the applicant, was involved in an automobile accident on July 3, 2022, 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, Definity 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 agree the MIG limits have been exhausted.

ii. Is the applicant entitled to chiropractic services proposed by Good Health Rehab Centre as follows:

a. $200.00 ($1,300.00 less $1,100.00 approved) in an OCF-18/treatment plan (“plan”) submitted on October 19, 2022?

b. $3,554.00 in a plan submitted February 8, 2023?

iii. Is the applicant entitled to $2,200.00 for psychological services proposed by Health Bound Health Network in a plan submitted October 26, 2023?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant’s injuries are predominantly minor, and the applicant is therefore subject to the MIG limits of $3,500.00.

4As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

5The applicant is not entitled to interest nor an award.

6The application is dismissed.

ANALYSIS

Is the applicant subject to the MIG?

7The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s.3(1) of the Schedule 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.” The terms “strain”, “sprain”, “subluxation”, and “whiplash associated disorder” are also defined in s.3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.

8An 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.

9The applicant submits that she has a pre-existing condition in the form of depression and anxiety as confirmed in a clinical note and record (“CNRs”) by her family doctor, Dr. Shabana Sikander, dated April 8, 2022, and that such condition pre-dates the subject accident of July 3, 2022. The applicant’s submissions are not clear as to whether the applicant is arguing that such a pre-existing condition is being advanced to take the applicant out of the MIG based on evidence that such condition precludes her recovery if she is kept within the MIG limits.

10In any event, I find that the notation of a pre-existing condition of depression and anxiety alone do not serve to take the applicant out of the MIG. This is because the test in section 18(2) as set out above has two parts. Even if I were to find that the applicant has a documented pre-existing condition, I have not been directed to compelling medical evidence stating that the condition precludes recovery if the applicant is kept within the limits of the MIG. Further, the CNRs of Dr. Sikander (family doctor), dated April 8, 2022, note that the applicant was not following up with a psychiatrist or psychotherapist. This is the case even though the complaints of depression and anxiety had been ongoing for some six (6) months prior to that date. I find that the same reasoning applies to the family doctor’s notation of suspected fibromyalgia. I have not been directed to medical evidence establishing that the applicant in fact suffered from fibromyalgia and that maintaining her medical and rehabilitation benefits within the MIG limits would preclude her recovery from such condition.

11For the reasons stated above, I find that the applicant does not have a pre-existing injury or condition that warrants removal from the MIG.

Does the applicant suffer from chronic pain with functional impairment as a result of the accident that warrant her removal from the MIG?

12I find the applicant does not suffer from chronic pain with functional impairment as a result of the accident that warrant her removal from the MIG.

13The applicant made submissions that, following the subject accident, the applicant complained to her family doctor on July 11, 2022, of sharp pain from her neck radiating to the shoulders and arms and an onset of muscular pain affecting the chest area. On August 5, 2022, the applicant complained of ongoing pain in her bilateral arms, shoulders, neck, axillary region, and issues with sleep and insomnia. The applicant submits that she was diagnosed with degenerative disc disease and chronic neck pain. She was also recommended to be assessed for Post Traumatic Stress Disorder (PTSD).

14The respondent made submissions that the applicant has never been diagnosed with chronic pain syndrome and is attempting to obfuscate by using the term chronic pain syndrome interchangeably with the words chronic pain. Further, the respondent argued that any alleged chronic pain the applicant suffers is not from the subject accident, but rather due to a previous or subsequent accident, or other causes that pre-date the accident. The respondent argued that the onus is on the applicant to demonstrate why a particular diagnosis of chronic pain, when considered with the functional limitations of such a diagnosis removes the applicant from the MIG limits.

15I am not persuaded on a balance of probabilities that the applicant has established she has chronic pain syndrome to warrant removal from the MIG. Although a CNR from her family doctor dated November 15, 2022, assessed the applicant with degenerative disc disease and chronic neck pain, there is no mention of the functional limitations of such a diagnosis on the applicant.

16In the s.44 IE report prepared by Dr. Stewart, general practitioner, dated May 12, 2023, he opined that the applicant’s pain complaints should have resolved within 4-6 weeks after the subject accident even without treatment.

17The respondent argued that the applicant has not referenced the AMA Guides, 6^th edition, of which at least three of the six criteria would need to be met for the applicant to meet the test for chronic pain syndrome. However, I note that this is not a legal requirement. Although the Tribunal has held it is a useful interpretive tool, it is not incorporated into the Schedule. The burden is on the applicant to satisfy the Tribunal that she suffers from chronic pain with functional impairment or chronic pain syndrome to be removed from the MIG. The applicant has not done so in this case. While I accept that the applicant has made continuous pain complaints to her family doctor post-accident, I have not been directed to evidence that demonstrates, on a balance of probabilities, that this pain is accompanied by a functional impairment of the nature and severity required to be removed from the MIG.

18Nor have I been directed to evidence that the applicant meets the AMA Guides for chronic pain syndrome. For example, I have not been provided with evidence of the applicant’s use of prescription drugs beyond the recommended duration, or excessive reliance on healthcare providers. As well, there has been no indications of secondary deconditioning or evidence that the applicant has withdrawn from social milieu including work, recreation or other social events. The applicant has returned to work albeit with modified duties (administrative tasks) and reduced hours as reported by the applicant. The applicant has also returned to driving, although she reports nervousness during this activity. The CNRs provided by the applicant do not provide evidence of functional limitations and the applicant’s reporting indicate independence with most self-care and many daily living activities, although she reports requiring help from family members with some tasks and uses pacing as a strategy.

19For the reasons stated above, I find the applicant has not demonstrated on a balance of probabilities that she suffers from chronic pain with functional impairment that warrants removal from the MIG.

Does the applicant suffer from psychological symptoms as a result of the accident that warrant her removal from the MIG?

20I find the applicant has not persuaded me on a balance of probabilities that she suffers from psychological symptoms as a result of the accident that warrant her removal from the MIG.

21The applicant submits the following records to establish a psychological impairment. The family doctor’s CNRs from Dr. Sikander, dated September 28, 2023, wherein she is assessed as having depression, anxiety and post-traumatic stress disorder. The applicant also submits and relies on the psychological assessment of Dr. Fahimeh Aghamohseni, psychologist, dated February 23, 2024, wherein the applicant is diagnosed with major depressive disorder, single episode, with anxious distress, somatic symptom disorder, with predominant pain, in the persistent range, at severe levels, and specific phobia, situational type, vehicular.

22The respondent made submissions that based on documentation provided, there is reason to doubt the applicant’s credibility in her reporting for the following reasons: the applicant reported to the s.25 assessor that she saw her doctor two days after the accident but the applicant’s family doctor CNRs show that she did not see her doctor until eight days after the accident. Also, despite reporting to the s.25 assessor that she felt extreme head pain after the accident, the applicant only complained of left-side neck pain radiating to the left arm when she saw her family doctor on July 11, 2022. The respondent also contends that the psychological assessment prepared on behalf of the applicant does not account for either the subsequent motor vehicle accident (“MVA”) on October 12, 2023, the applicant was involved in, nor the prior MVA she was involved in eight (8) to nine (9) years prior to the s.44 general practitioner assessment conducted by Dr. James Stewart in May of 2023.

23On balance, I have not been persuaded that the applicant suffers from psychological impairments for the following reasons.

24First, I agree with the respondent that the applicant did not disclose to the s.25 assessor any pre-accident health issues, whether physical or psychological. This contrasts with the April 8, 2022, CNR from Dr. Sikander, wherein her note states, in part:

…patient is presenting with fatigue and excessive stress. This has been going on for the past 6 months. It seems to be persistent in nature as well. She is not following up with a psychiatrist or psychotherapist. She also indicated that she experiences a lot of muscle tension and proximal muscle pain…

25Second, I place little weight on the report prepared by Dr. Aghamohseni as it does not contain sufficient details to support the conclusions in the report. For example, the doctor references reviewing CNRs from the family doctor, and on page 10 of her report she goes on to say that the applicant’s symptomatology commenced following the subject accident; however, there is no mention of the family doctor’s CNR dated April 8, 2022, which the assessor (Dr. Aghamohseni) had as part of her file review that speaks to fatigue, excessive stress along with muscle tension and proximal muscle pain that the applicant complained of prior to the subject accident. The report also does not mention the fact the applicant was involved in both a previous and subsequent MVA at the time of the assessment and what, if any, effect this may have on the author’s conclusions.

26Third, I note the applicant reported to the s.25 assessor that she required medical attention from her family physician because of the intense accident-related pain she suffered from the accident and that she did so within two (2) days of the accident. However, this is contradicted by the CNRs of the family doctor that indicate she attended at her office eight (8) days after the accident and complained of having left-sided neck pain for the past one week and that radiates towards her left arm. The applicant did not report any other injuries or pain over her body.

27I find the opinion provided by Dr. Aghamohseni is not corroborated by other evidence before me. Although the applicant has made complaints of depression and anxiety to her family doctor, I have not been directed to any evidence of consultations with a psychiatrist or psychotherapist post-accident.

28For the reasons stated above, I find the applicant has not demonstrated on a balance of probabilities that she has suffered a psychological impairment as a result of the accident to warrant removal from the MIG.

Is the applicant entitled to the treatment plans?

29As I have found that the applicant is not removed from the MIG on either a chronic pain or psychological impairment basis, there is no need to engage in an analysis of whether the proposed treatment plans are reasonable and necessary as the applicant is entitled to benefits only to the limits of the MIG.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that no overdue benefits are payable to the applicant, it follows that no interest is due to the applicant.

Award

31The 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. Given that no benefits are found payable to the applicant, there is no basis to make an award under s.10 of Reg. 664.

ORDER

32The Tribunal Orders as follows:

i. The applicant’s injuries are predominantly minor, and the applicant is therefore subject to the MIG limits of $3,500.00.

ii. As the applicant is in the MIG, it is not necessary to consider if the proposed treatment plans are reasonable and necessary;

iii. The applicant is not entitled to interest nor an award; and

iv. The application is thereby dismissed.