Licence Appeal Tribunal File Number: 24-007299/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:
Ahmad Fawad
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Sevda Guliyeva, Paralegal
For the Respondent:
Nisaa Khan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ahmad Fawad, (“the applicant”), was involved in an automobile accident on August 6, 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 Unifund Assurance Company, (“the respondent”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2Is the applicant barred from proceeding to a hearing for a non-earner benefit as they failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
SUBSTANTIVE ISSUES
3The substantive 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? The respondent submits that there is $315.75 remaining in the Minor Injury Guideline limit.
ii. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from September 6, 2021, ongoing?
iii. Is the applicant entitled to $2,558.32 for a chronic pain assessment, proposed by Q Medical in a treatment plan/OCF-18 (“plan”) submitted April 23, 2024?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is barred from proceeding to a hearing for a NEB in the amount of $185.00 per week from September 6, 2021, and ongoing in accordance with s.36(2)(3) of the Schedule.
5The applicant remains in the MIG and therefore it is not necessary to consider whether the disputed assessment plan is reasonable and necessary.
6The application is dismissed.
PROCEDURAL ISSUES
7I find that the issue of NEB is properly before me and I do not accept the applicant’s email of March 5, 2025, as notice of his intention to withdraw the NEB as an issue in dispute. Accordingly, I will consider the NEB for the purposes of this hearing.
8On March 5, 2025, the applicant’s counsel’s law clerk advised the respondent by email that the issue of NEB was being withdrawn, however in his submissions dated June 5, 2025, the applicant made submissions in relation to the NEB and did not notify the Tribunal of its intention to withdraw the issue.
9The respondent argues that the email it received from the applicant’s law clerk on March 5, 2025, serves as notice that the applicant withdrew the NEB as an issue and dispute, therefore I should not consider the issue of NEB in my deliberation.
10I find that the issue of NEB is properly before me, and I will consider the NEB in my deliberation. Both parties provided written submissions on the NEB. As the respondent made submissions refuting the applicant’s claim to a NEB, I find that there is no prejudice to the respondent in considering the NEB as an issue in dispute for this hearing.
ANALYSIS
Preliminary Issue-Disability certificate (OCF-3)
11I find on a balance of probabilities that the applicant is barred from proceeding to a hearing for a NEB in the amount of $185.00 per week from September 6, 2021, and ongoing in accordance with s.36(2)(3) of the Schedule.
12Section 36(2) of the Schedule specifies that an applicant applying for a specified benefit shall submit a completed disability certificate with his or her application under section 32. Section 36(3) states “An applicant who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted”. Section 55(1) provides that the Applicant shall not apply to the Tribunal if he “has not notified the insurer of the circumstances giving rise to a claim for a benefit or has not submitted an application for the benefit within the times prescribed by (the Schedule).”
13The respondent submits the applicant failed to notify it of the circumstances giving rise to his claim for a NEB, therefore pursuant to s.36(3) and s.55 of the Schedule the applicant is not entitled to proceed to a hearing for the NEB. It argues that the applicant has yet to provide it with an OCF-3 and given that 104 weeks have passed since the accident, follows that the NEB is not payable.
14The applicant argues that the preliminary issue ought not to be struck as he notified the respondent of the circumstances giving rise to a claim for benefits. The applicant argues that the NEB issue should proceed to a full merit hearing with the understanding that the executed disability certificate will be delivered forthwith.
15For the reasons that follow, I find that the applicant has not provided the respondent with a completed OCF-3, therefore, the applicant is barred from proceeding to a hearing for a NEB.
16On August 19, 2021, the respondent by way of letter provided the applicant with an OCF-1 and explains that the OCF-1 must be completed and returned to the respondent if he intends to present a claim for any accident benefits. On January 20, 2022, the respondent notified the applicant by way of letter that it had received his application for accident benefits (OCF-1). The letter further informs the applicant that for it to consider his eligibility for a NEB the applicant must submit a completed OCF-3. To date the applicant has not provided a completed OCF-3 to the respondent or to the Tribunal to support his claim.
17I have considered s.34 of the Schedule, and its time-based requirements and it is important to note that I was not pointed to submissions as to why the applicant did not provide an OCF-3 to the respondent. The applicant’s submission of delivering an executed disability certificate forthwith does not support his case because approximately four years have past since the accident with no explanation as to why he has not provided an OCF-3 to support his claim.
18I find on a balance of probabilities that the applicant is barred from proceeding to a hearing for a NEB in the amount of $185.00 per week from September 6, 2021, and ongoing in accordance with s.36(2)(3) of the Schedule.
Substantive issue MIG-Accident related and pre-existing physical injuries
19I find on a balance of probabilities that the applicant has not demonstrated that he should be removed from the MIG. I further find on a balance of probabilities that the applicant has failed to demonstrate that his documented pre-existing injury or condition combined with compelling medical evidence that shows his condition precludes recovery within the confines of the MIG. Accordingly, the applicant remains in the MIG.
20Section 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.”
21An 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
22The applicant submits that three years post accident his clinical picture has worsened and not yet resolved. He argues that conservative care within the MIG has been exhausted with only ten percent of functional improvement to his accident-related injuries. The applicant submits that he suffered a reaggravation of injuries from a previous motor vehicle accident in October of 2020, namely a multi region injury of whiplash and lumbar strain of a documented WAD II, rotator cuff impingement and right elbow strain, accompanied by restricted cervical and lumbar motion.
23To support his claim the applicant relies on the clinical notes and records (“CNRs”) of his family physician Dr. Dashti, the CNRs of Triangle Physiotherapy and an MRI of the applicant’s cervical spine dated May 19, 2022, conducted by Dr. Knapp, radiologist.
24The respondent argues that the applicant has failed to establish entitlement beyond the MIG limits from the soft tissue injuries he sustained from the accident. It argues that the MRI shows age related degenerative changes unrelated to the accident. It argues that the applicant reported neck and back pain, that is deemed to be soft tissue in nature. It argues that that the applicant did not provide evidence of why he cannot reach maximal medical recovery within the MIG from his pre-existing medical condition and that the applicant was involved in a subsequent MVA on April 22, 2022. The respondent relies on an insurer’s examination report prepared by Dr. Mohammed, physician dated September 10, 2024.
25In this case the applicant has failed in his onus to provide the Tribunal with evidence that his documented pre-existing injury or condition combined with compelling medical evidence that states that his condition precludes recovery with the confines of the MIG, because the applicant did not tender contemporaneous medical evidence to support his claim to be removed from the MIG, either from his subject accident injuries or his pre-existing injuries.
26The CNRs from the applicant’s family physician relate to injuries sustained from the April 2022 motor vehicle accident and do not provide a linkage from the subject accident nor do they point me to injuries sustained from the applicant’s previous motor vehicle accident of October 2020.
27The only evidence provided by the applicant of a pre-existing injury are from his treating physiotherapist Christine Wang CNRs dated September 7, 2021. Ms. Wang’s CNRs opine that the applicant has reaggravation of previous MVA injuries “WAD II, right lateral epicondylitis, left RC syndrome, LSP and TSP strain”; however, I note that that no further detail was provided and no evidence deduced on how these injuries require treatment outside of the MIG confines. In addition, the applicant’s MRI results shows that his lumbar spine complaints are due to age-related degenerative changes unrelated to the subject accident.
28Given the lack of contemporaneous evidence linking the subject accident to injuries outside of the confines of the MIG, or a documented pre-existing injury or condition that precludes his recovery within the confines of the MIG, I accept the medical opinion of Dr. Mohammad, that there are no impairments identified during his examination, and that the applicant suffered soft tissue injuries consistent with the MIG guideline.
29In addition, I accept Dr. Mohammad’s opinion that “the insured’s health practitioner did not provide compelling evidence to support that the insured has a pre-existing medical condition that would prevent him from achieving maximal medical recovery from the minor injury if the insured is subject to the $3,500.00 limit or is limited to the goods and services authorized under this guideline”.
30I find on a balance of probabilities that the applicant has not demonstrated that he should be removed from the MIG. I further find on a balance of probabilities that the applicant has failed to demonstrate that his documented pre-existing injury or condition combined with compelling medical evidence that shows his condition precludes recovery within the confines of the MIG. Accordingly, the applicant remains in the MIG.
The disputed assessment
31The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed assessment is not required.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.
ORDER
33It is ordered that:
i. The applicant is barred from proceeding to a hearing for a NEB from September 6, 2021, and ongoing.
ii. The applicant remains in the MIG and therefore it is not necessary to consider whether the assessment plan is reasonable and necessary.
iii. The application is dismissed.
Released: February 17, 2026
John Mazzilli
Adjudicator