Licence Appeal Tribunal File Number: 24-007461/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:
Irfan Khan
Applicant
and
Definity Insurance Company
Respondent
DECISION
VICE-CHAIR: Kevin Kovalchuk
APPEARANCES:
For the Applicant: Alex Nikolaev, Counsel
For the Respondent: Jeremy Hanigan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ifran Khan, the applicant, was involved in an automobile accident on July 2, 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 Guidelines (“MIG”), limit. Note: The parties agree the MIG limits have not been exhausted.
ii. Is the applicant entitled to physiotherapy services proposed by Thermax Rehab, as follows:
a. $1,164.67, in a treatment plan/OCF-18 (“plan”) dated December 19, 2022, and
b. $1,263.57, in a plan dated November 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?
RESULT
3Based on the totality of evidence before me I find:
i. The applicant has not demonstrated that his accident-related injuries warrant treatment beyond the MIG.
ii. As the applicant is in the MIG, it is not necessary to determine if the disputed benefits are reasonable and necessary.
iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.
iv. As there are no overdue benefits the applicant is not entitled to interest.
ANALYSIS
Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured suffers 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.
5An 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 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.
The applicant is not removed from the MIG on the basis of spinal bulging.
6The applicant submits that he should be removed from the MIG because of the following findings on an MRI:
i. A small posterior broad-based disc bulge at L2-L3.
ii. A small to moderate posterior broad based disc bulge with superimposed small disc protrusion in the left foraminal and extraforaminal zone at L3-L4.
iii. A moderate broad-based disc bulge at L4-L5; and
iv. A moderate posterior broad-based disc bulge with moderate right neural foraminal narrowing and mild left neural foraminal narrowing at L5-S1.
7The respondent submits that the applicant has not met the burden of proving that the accident caused injuries that fall outside of the MIG.
8The applicant was seen in the emergency department of Scarborough Health Network on the day of the accident. The impression was “MVC-soft tissue injuries.
9A review of the MRI of March 31, 2023, also notes “There are 5 lumbar-type vertebral bodies. Vertebral body heights and alignment appear maintained. Mild degenerative disc disease in the lumbar spine with disc space narrowing most evident at L5-S1. Degenerative endplate changes at superior endplate L2and L5. The conus ends at the L1-L2 level. Visualized lower spinal cord demonstrates normal signal and morphology. Limited visualization of the retroperitoneal structures is unremarkable.” However, the MRI does not speak to the cause of the degenerative changes or disc space narrowing.
10The respondent submits that there is no expert evidence from the applicant that supports his position that the results of the MRI remove the applicant from the MIG.
11I could find no evidence in the applicant’s submissions that link the findings of his MRI to his motor vehicle accident.
12In my view it is not enough to simply say that the MRI showed certain degenerative changes and disc bulges. I find the recital of the MRI results to be unhelpful in meeting the applicant’s burden as to why he should be removed from the MIG as they do not speak to the cause of the degenerative changes or disc bulges.
13Because the applicant has not shown a link between the findings of the MRI and his motor vehicle accident and because he has not provided further evidence as to why he should be removed from the MIG, I find that he has not met his burden of proof that he sustained injuries that would remove him from the MIG.
The applicant is not removed from the MIG because of sciatica.
14The applicant submits that his orthopaedic surgeon Dr. Khodabandehloo “suspected” he was suffering from right sciatica and recommended anti-inflammatory medication, physical therapy and massage therapy as well as an MRI. The appellant submits that sciatica does not fall within the definition of “minor injury” within the meaning of the Schedule.
15The respondent submits that there is no expert evidence from the applicant that supports his position that sciatica is not a minor injury.
16I could find no evidence in the applicant’s submissions that links his sciatica to his motor vehicle accident.
17In my view it is not enough to simply say that Dr. Khodabandehloo suspected the applicant was suffering from right sciatica. I find this submission to be unhelpful in meeting the applicant’s burden as to why he should be removed from the MIG as it does not address whether the sciatica was caused by the accident.
18Without submissions focussed on why the applicant should be removed from the MIG the applicant has not provided sufficient evidence to indicate support for his claim that he should be removed from the MIG because of right sided sciatica.
None of the treatment plans is payable.
19As I have determined that the applicant is subject to treatment within the monetary limits of the MIG there is no need for me to consider if the treatment plans are reasonable and necessary. The applicant is entitled to treatment within the MIG limit.
No Interest is payable.
20As no benefits are overdue no interest is payable/
The applicant is not entitled to an award pursuant to Regulation 664.
21Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled.
22It is well-settled that in order for an award to be made the respondent’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate and the evidentiary onus is on the applicant to demonstrate this.
23The applicant has made no submissions or provided any particulars as to why he is entitled to an award pursuant to section 10 of Regulation 664.
24I find that the applicant has not met his onus to demonstrate, on a balance of probabilities that, the respondent acted in an excessive, imprudent, stubborn, inflexible, unyielding or immoderate way and therefore the applicant is not entitled to an award.
ORDER
25As a result of the above and on a balance of probabilities I find that:
i. The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.
ii. As I have found the applicant’s injuries to be subject to treatment within the MIG it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary. The applicant is entitled to treatment up to the MIG limit.
iii. As there are no overdue benefits payments the applicant is not entitled to interest.
iv. The applicant is not entitled to an award pursuant to Regulation 664.
26The application is dismissed.
Released: March 16, 2026
Kevin Kovalchuk
Vice-Chair