Licence Appeal Tribunal

Citation: Patel v. TD General Insurance Company, 2026 ONLAT 24-004521/AABS

Licence Appeal Tribunal File Number: 24-004521/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:

Kishorbhai Patel

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Egidio Stagnitta, Counsel

For the Respondent: Michael P. Fox, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Kishorbhai Patel, the applicant, was involved in an automobile accident on November 21, 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 the respondent, TD General 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?

ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Prime Health Care Inc. in a treatment plan/OCF-18 (“plan”) submitted September 6, 2023?

iii. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Prime Health Care Inc. in a plan submitted November 9, 2022?

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?

PRELIMINARY ISSUE:

3In paragraph twelve of the respondent’s submissions, it states that the applicant served a request that the William Osler Health System records, dated November 17, 2022, be excluded as evidence at this hearing. The respondent argues that these records were served late by the applicant—specifically, outside the 90-day document deadline stipulated in the Case Conference Report and Order (CCRO), dated September 4, 2024.

4I find that the respondent is correct: the final day for service on the respondent would have been December 3, 2024. However, the documents were not provided to the respondent until January 8, 2025. There were no submissions from the applicant on this issue in their reply to submissions.

5Since the date of the hearing is June 6, 2025, I find that the applicant has not complied with the document exchange requirements set out in the CCRO. However, the respondent has not directed me to any prejudice suffered under Rule 9.3 of the Schedule as a result of the late service of the records. Therefore, I order that the records from the William Osler Health System, dated November 17, 2022, are included as evidence for the purposes of this hearing.

RESULT

6The applicant’s injuries are predominately minor as per the s. 3(1) of the Schedule and therefore the applicant remains in the MIG.

7As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

8No interest or award are payable.

ANALYSIS

MIG

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are 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.”

10An 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 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.

11The applicant in this case submits that he should be removed from the MIG on the basis of his pre-existing injuries, chronic pain, and a psychological condition.

The applicant does not suffer from a chronic pain impairment.

12I find that the applicant does not suffer from accident-related chronic pain which would remove him from the MIG.

13The applicant relies on an OCF-3 (Disability Certificate) dated February 4, 2022, prepared by N. Patel, Physiotherapist which states injuries as: headaches, sprain and strain of the shoulder joint, sprain and strain of unspecialized parts of the knee, Also, the applicant relies on an OCF-18, by Prime Heath Care Inc. dated September 2023 for a psychological assessment. Further, the applicant submits that he has pre-existing injuries that consist of gout and hypertension. He argues that this gout pain was exacerbated since the accident and would preclude maximal recovery if he remained in the MIG. Finally, the applicant relies on the clinic notes and records, (CNRs) from his family doctor Dr. I. Ghani of Rexdale Doctors Clinic from December 31, 2021, to June 6, 2024, and the CNRs from Pal Physiotherapy and Rehabilitation from November 17, 2018, to August 19, 2024.

14On November 17, 2021, the accident occurred. Police and ambulance attended, but the applicant was not hospitalized. He reported hitting his head on the steering wheel and window, losing consciousness for 2–3 minutes, and striking his knees on the dashboard. On December 30, 2021, during a telephone consultation, he reported intermittent dizziness and bilateral knee pain; his physician renewed Tylenol 3 and prescribed Indomethacin for gout.

15On January 19, 2022, he visited the emergency department for chest pain and worsening forgetfulness since the accident, reporting concussion symptoms. A CT scan showed no acute findings, and follow-up with a specialist was recommended. Subsequently, the applicant attended physiotherapy sessions involving passive treatments (electrical modalities, ice, heat, stretching, massage, acupuncture) and active exercises (flexibility and strengthening), along with a home exercise program performed daily.

16The applicant attended physiotherapy at Pal Physiotherapy and Rehabilitation Centre with each session lasted approximately 30 to 50 minutes and included passive interventions such as electrical modalities (e.g., TENS/IFC), cryotherapy (ice), thermotherapy (heat), therapist-assisted stretching, massage therapy, and acupuncture.

17The applicant also participated in an active therapy program comprising flexibility exercises for the cervical spine, upper extremities, lumbar spine, and lower extremities, and strengthening exercises for the upper extremities using resistance bands. He was provided with a home exercise program (HEP) that mirrored the clinic-based exercises and reports performing these daily.

18The respondent relies on the s. 44 assessment of Dr J. Gordon, Physiatrist and her report dated January 25, 2024. Dr. Gordon states that the applicant’s injuries met the criteria of minor injuries.

19I reiterate that it is the applicant's onus to prove on a balance of probabilities that his chronic pain injuries do not fall within the MIG. The applicant submits that as a result of the accident, he suffers from chronic pain in his knee, shoulder, and neck. He relies in large part on his family doctor’s CNRs to establish his claim. However, from my review of Dr. Ghani’s CNRs they only reveal one visit on December 31, 2021, for his physical injuries. In the phone consultation, Dr. Ghani noted that, “the applicant’s head hit the steering wheel in an accident on or about November 17, 2021, and was O.K. and that he returned to work, and has intermitted dizziness spells. Dr. Ghani prescribed Tylenol # 3 for pain and Indomethacin. Also, all of the entries except for the December 31, 2021, entry are all non-related accident visits.

20I find that the applicant only once reported her injuries to Dr Ghani about the November 17, 2021, accident. Dr Ghani has never opined on those injuries that would prevent her from maximum recovery if treated within the MIG. I find the applicant has provided no contemporaneous evidence with respect to his pain that would persuade me about his chronic pain impairment.

21I find the s. 44 assessor, Dr. J. Gordon states in her report dated January 25, 2024. Dr. Gordon concluded that the applicant suffered from a left elbow sprain/strain with a query of underlying inflammatory arthritis, left wrist sprain/strain with a query of underlying inflammatory arthritis and right knee sprain/strain with s query of underlying inflammatory arthritis. As a result, she concludes that the applicant from a musculoskeletal perspective, the claimant’s injuries resulting from the motor vehicle accident in question do meet the criteria of a Minor Injury as described in the MIG.

22On the totality of the evidence, I find that the applicant has not established that he has sustained chronic pain, with functional impairment as a result of the accident.

23For these reasons, and on a balance of probabilities, I find the applicant does not warrant removal from the MIG for his chronic pain injuries.

The applicant’s pre-existing injuries do not prevent maximal recovery within the MIG.

24An 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) of the Schedule, 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 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.

25I find the applicant has not met his onus and remains in the MIG for his pre-existing injuries.

26The applicant states that his pre-existing conditions, including gout and hypertension, would preclude maximal recovery He relies on Dr. Ghani’s CNRs to substantiate his claim that gout from his feet and hands should exclude him from the MIG. I disagree. Dr. Ghani’s .notes from 2018 to 2024 indicate that gout has been a persistent issue, for which the applicant was prescribed Tylenol #3. On the April 21, 2024, entry of Dr. Ghani, he notes that the gout in his right hand is significantly improved since the last time Dr. Ghani seen the applicant.

27I am persuaded by Dr. Gordon’s report dated, January 25, 2024, because Dr. Gordon considered the applicant’s pre-accident gout and hypertension concludes that, from a physical perspective, there is no compelling evidence of a pre-existing condition that would prevent the claimant from achieving maximal recovery relative to his pre-accident functionality. While the claimant has a history of gout and possible underlying inflammatory arthritis, the applicant has not directed me to any medical opinion or medical evidence that these conditions prevent him from reaching maximal medical recovery for his minor injury, as required by s. 18(2) of the Schedule. I find that the applicant has not meet his onus and on a balance of probabilities is not remove from the MIG for his pre-existing injuries.

The applicant does not suffer from a psychological condition

28To establish his claim, the applicant relies on the CNRs from William Osler Health System and the CNRs of Dr. I. Ghani and the disputed OCF-18, dated September 6, 2023, for a psychological assessment. The injuries listed in part 6 of the OCF-18 by Dr. J. Brunshaw’s, Psychologist, assessed the applicant with a state of emotional shock and stress, unspecified symptoms and signs involving emotional state, insomnia and PTSD, unspecified behavioural syndromes associated with physiological disturbances and physical factors and limitation of activities due to disability.

29The respondent relies on the psychological assessment of Dr. T. Seon, dated January 24, 2024, to support its position that the applicant’s psychological injuries fall outside the Minor Injury Guideline (MIG) and are unrelated to the accident. I accept this evidence. Dr. Seon conducted an in-person assessment to determine MIG applicability and eligibility for a psychological assessment. In her report, she concluded that the applicant did not meet DSM criteria for any psychological diagnosis and had no impairment warranting removal from the MIG.

30In contrast, the applicant relies on the disputed OCF-18 prepared by Dr. Brunshaw, which was based solely on an interview and the applicant’s self-report. No psychological testing was conducted, and Dr. Brunshaw expressly states that her report is only a brief outline and should not replace a comprehensive psychological assessment.

31I find Dr. Seon’s report to be more persuasive and reliable of the psychological test for DSM Criteria. I find that the applicant has not met his evidentiary onus to establish accident-related psychological impairments warranting removal from the MIG. Dr. Seon examined the applicant to determine MIG applicability and eligibility for a psychological assessment. In her report, Dr. Seon concluded that the applicant did not meet DSM criteria for any psychological diagnosis and had no impairment warranting removal from the MIG.

32For the reasons above, I find on a balance of probabilities that the applicant has not met his onus and is not warranted removal from the MIG.

33As I have determined that the applicant is still remaining in the MIG, it is not necessary for me to conduct an analysis of whether the treatment plans in dispute are reasonable and necessary.

Interest

34No interest is awarded because no benefits are payable.

Award

35Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. I find that since no benefits are payable, no benefits have been unreasonably withheld or delayed. The applicant is not entitled to an award.

ORDER

36On the totality of the evidence, I find that:

i. The applicant is not removed from the MIG.

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

iii. No interest or award is granted.

iv. The application is dismissed.