Licence Appeal Tribunal File Number: 24-010033/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:
Ishaq Chamadia
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
VICE-CHAIR:
Henry Harris
APPEARANCES:
For the Applicant:
Kim Mohammed-Sieudhan, Paralegal
For the Respondent:
Kevin Mitchell, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ishaq Chamadia (the “applicant”) was involved in an automobile accident on October 25, 2020, 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 Belair Insurance Company (the “respondent”) 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 $1,800.00 for a cognition assessment, proposed by Ontario Independent Assessment Centre Inc. in a treatment plan/OCF-18 (“plan”) dated March 3, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3For issue (ii) above, the case conference report and order dated December 9, 2024 (the “CCRO”) refers to a plan dated September 8, 2022. However, in reviewing the plan it is signed by the applicant on March 3, 2022, which I have reflected above.
RESULT
4The applicant remains subject to the MIG.
5As the applicant remains in the MIG, I have not considered if any of the plans in dispute are reasonable and necessary.
6The applicant is not entitled to interest or an award.
7The application is dismissed.
PROCEDURAL ISSUE
8In his reply submissions, the applicant submits that the respondent’s submissions exceed the page limit requirement set out in the CCRO, and requests that the Tribunal only consider the submissions that have complied with the page limit requirement.
9I find that the CCRO orders that the parties’ initial submissions are to be limited to 10 pages. I find the respondent’s submissions are 10 and a half pages in length. However, the applicant has not led any evidence to establish that he would be prejudiced as a result of the extra half page of submissions. In contrast, excluding a portion of the respondent’s submissions would limit its ability to conclude its arguments with respect to the issues in dispute. Given the potential prejudice to the respondent if I were to exclude a portion of its submissions, I decline the applicant’s request and will consider the respondent’s submissions in their entirety.
ANALYSIS
The applicant remains within the Minor Injury Guideline (MIG)
10I find that the applicant has not established on a balance of probabilities that he suffers from an accident-related injury or condition that warrants removal from the MIG.
11Section 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.”
12An 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.
13In all cases, the burden of proof lies with the applicant.
14The applicant submits that he should be removed from the MIG on the basis of:
a) Pre-existing physical impairments;
b) Chronic pain as a result of the accident; and
c) Accident-related psychological impairment.
a) Pre-existing condition
15I find that the applicant has not proven on a balance of probabilities that he has a pre-existing condition that would warrant removal from the MIG.
16The applicant submits that he has pre-existing right shoulder pain and back pain, which are documented and treated by various health practitioners, and are a barrier to achieving maximum recovery within the MIG limits.
17The respondent submits that the applicant has not provided compelling medical evidence to support that his alleged pre-existing injuries prevent him from achieving maximal recovery if subject to the MIG.
18I find that the applicant has established that he has pre-accident right shoulder pain. The clinical notes and records (“CNRs”) of Dr. Caroline Scott, orthopaedic surgeon, document a pre-accident consultation on February 12, 2020. Dr. Scott noted that the applicant had surgery to his right shoulder on November 12, 2019 in India. The surgery was arthroscopic repair of a labral tear. Further, the April 11, 2022 s. 44 in-person IE report of Dr. Esmat Dessouki, orthopaedic surgeon, documents the applicant reporting having right shoulder surgery six months prior to the accident, which the applicant indicating that he had not fully recovered at the time of the accident. In his report, Dr. Dessouki referred to this as a pre-existing medical condition.
19However, for the following reasons, I am not satisfied that the applicant has met the second part of the test pursuant to s.18(2) of the Schedule. As set out above, there must be compelling medical evidence that the pre-existing condition would preclude recovery from the accident-related minor injury if the applicant were subject to the MIG.
20While the applicant has pre-existing right shoulder pain, I was not pointed to any contemporaneous evidence establishing how the pre-existing condition is a barrier to recovery from his accident-related minor injuries. The applicant attended Scarborough Hospital two days after the accident complaining of left shoulder bruising. X-rays were normal. Dr. Dessouki’s report references a right shoulder x-ray on December 2, 2020, approximately five weeks post-accident, which showed no abnormalities. These records do not support that the applicant’s pre-existing pain interferes with his recovery from minor injuries if kept in the MIG.
21The applicant relies on the OCF-3 Disability Certificate dated June 11, 2021, completed by Dr. Timothy Damoso, chiropractor (the “OCF-3”), to support that his pre-existing condition prevents maximal recovery if subject to the MIG limits. The applicant argues that the OCF-3, 8 months post-accident, confirms the anticipated duration of the disability is more than 12 weeks. I disagree. The OCF-3 alone is not sufficient for the applicant to satisfy his evidentiary burden. Further, although the box is checked off for anticipated duration of disability more than 12 weeks, there is nothing in the OCF-3 that relates refers to the pre-existing right shoulder injury as the reason why the applicant is prevented from recovering in the MIG.
22The applicant further relies on the CNRs from a walk-in clinic, Markham McNicoll Urgent Care Centre, as medical evidence to confirm exacerbation of his pre-existing medical conditions. In particular, he points to six visits over the period of August to December 2021, which document his complaints of pain in his shoulder, neck and back. In reviewing these entries, some visits do not specify which shoulder was causing pain and one visit was specifically for left shoulder pain caused by exercise. While I accept that the applicant has reported right shoulder pain at some of his visits to the walk-in clinic several months post-accident, there is no statement or opinion provided in such CNRs that the applicant’s pre-existing condition precludes maximal recovery of accident-related minor injuries if he is kept in the MIG.
23Further, the IE report of Dr. Dessouki found that the applicant’s pre-existing right shoulder condition did not prevent him from achieving maximal medical recovery in the MIG, which he found to have already been achieved. I find Dr. Dessouki’s opinion persuasive as he reviewed the applicant’s medical history, and conducted an examination. The applicant was assessed to have full range of motion in his right shoulder and opined that there was no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident.
24Finally, I find the applicant has not established that his back pain is a pre-existing condition that would prevent him from achieving maximal recovery if subject to the MIG, as the applicant reported to Dr. Dessouki that such pain, which is aggravated by prolonged sitting, is a common problem for truckers, and that he does not attribute it to the accident. Further, the CNRs from a walk-in clinic only have a single complaint of back pain in the six visits highlighted by the applicant.
25Accordingly, I find that the applicant has not established on a balance of probabilities that his pre-existing condition would prevent him from achieving maximal medical recovery if he were kept within the MIG.
b) Chronic pain
26I find that the applicant has not proven on a balance of probabilities that he has accident-related chronic pain with functional impairment that would preclude recovery if held within the MIG.
27The applicant submits that he should be removed from the MIG due to his accident-related chronic pain in his right shoulder. In support of his position, the applicant relies on an OCF-18 dated July 21, 2021 prepared by Dr. Michale Gofeld, physician, seeking funding for a chronic pain assessment. I note this OCF-18 is not in dispute. The applicant refers to the additional comments section of the OCF-18 to an extract from the April 15, 2021 psychological assessment report of Ms. Farzaneh Pariman, MA, Clinical Psych. Assoc. The extract lists the applicant’s reported pain scale for neck, shoulder, arms and back pain, and recommends a chronic pain assessment. Although not identified in the applicant’s initial submissions, I note the report is also signed by Dr. Hanrinder Mrahar, psychologist, in her capacity as supervisor. I will refer to this as Ms. Pariman’s report, and note that, as a psychological associate, she does not hold the title of “Dr.”, as the applicant has referred to her in his submissions.
28The respondent counters that there is no evidentiary basis of chronic pain with functional impairment that would warrant the applicant’s removal from the MIG.
29I find that the evidence presented does not support a finding that the applicant has chronic pain with functional impairment as a result of the accident. While I agree with the applicant’s assertion that an actual diagnosis of chronic pain syndrome is not required to remove an applicant from the MIG, accident-related chronic pain alone is not enough for an applicant to be removed from the MIG; it must be accompanied by ongoing functional impairment evidenced through the impact of chronic pain on the applicant’s daily life and/or work.
30Although diagnosed with chronic pain, the applicant has not met the second part of the test of demonstrating functional impairment. He continues to work as a self-employed truck driver. In the OCF-1 Application for Accident Benefits dated November 18, 2020, the applicant indicated at Part 8 that the accident did not prevent him from working. In the June 6, 2022 IE report of Dr. Charlotte Gooden, psychologist, the applicant reported that he returned to work 1-2 days after the accident, and decreased the amount of time he spent as a driver as he has 5-7 drivers that work for him. He reported that he maintains his personal grooming, and can maintain his personal household chores and cooking, though said more minimally due to decreased energy. While I accept that the applicant has reported pain during some visits to his walk-in clinic, complaints of pain are not sufficient to establish impairments.
31Accordingly, I find that the applicant has not proven on a balance of probabilities that he has accident-related chronic pain with a functional impairment to warrant removal from the MIG.
c) The applicant is not removed from the MIG on the basis of psychological impairment
32I find that the applicant has not proven on a balance of probabilities that he sustained a psychological impairment due to the accident that warrants removal from the MIG.
33In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. Psychological impairment is not included in the minor injury definition. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”
34The applicant submits that he suffers from a psychological injuries as a result of the accident and, as such, should be removed from the MIG. In support of his position, the applicant relies on the December 18, 2020 psychological progress report of Dr. Svetlana Gabudulina, psychologist, and the April 15, 2021 report of Ms. Pariman. Ms. Pariman diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood.
35The respondent counters that the applicant has not established that he has any psychological impairments as a direct result of the subject accident. The respondent relies on the May 21, 2021 IE report of Dr. Louise Koepfler, psychologist, and June 6, 2022 IE report of Dr. Gooden, psychologist. Dr. Koepfler deferred a psychological diagnosis due to lack of medical records at time of assessment, seven months post-accident. Dr. Gooden found her assessment of the applicant was invalidated due to scoring on the psychometric test interview (M-FAST) being suggestive of malingering psychopathology and the Clinical Assessment of Depression scoring in the atypical range for inconsistency of responses. As a result, no psychological treatment was recommended by the IE assessors.
36I find that the applicant has not proven on a balance of probabilities that he sustained a psychological impairment due to the accident. There is no indication of the applicant making any post-accident complaints of psychological impairments during his visits to the walk-in clinic. I acknowledge Dr. Gabudulina’s progress report less than two months post-accident, but find a report in support of an OCF-18 to be less persuasive than the IE because there are no contemporaneous accounts to family doctors or other treating health care practitioners. Further, the timing of the provisional diagnoses may be premature for ruling out post-accident sequelae.
37I find there is a lack of corroborating evidence to the applicant’s own reports to Ms. Pariman of psychological difficulties. The report does not indicate any reviewing of medical documents, but rather relies exclusively on the applicant’s reporting. In my view, this diminishes the probative value of the diagnoses offered. Further, the assessment was conducted entirely by phone (there is no total time of the assessment indicated). While I recognize the report indicates this was due to COVID protocol, there was no mention of why the virtual assessment was not done over video. In contrast, Drs. Koepfler and Gooden reviewed or sought the applicant’s medical records and conducted in-person assessments of the applicant, Dr. Gooden’s assessment lasting two hours. I find this to be significant, given Dr. Gooden’s determination that the assessment was invalidated due to scoring suggestive of malingering psychopathology.
38Accordingly, I find that the applicant has not proven on a balance of probabilities that he sustained a psychological injury due to the accident that would warrant removal from the MIG. Therefore, I find that the applicant is subject to the MIG.
39As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
41The 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 the respondent did not unreasonably withhold or delay payment of benefits, no award is payable.
ORDER
42For the reasons outlined above, I find that:
i. The applicant shall remain in the MIG;
ii. As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary;
iii. The applicant is not entitled to interest or an award; and
iv. The application is dismissed.
Released: March 9, 2026
Henry Harris
Vice-Chair