Citation: Daruwala v. Unifund Assurance Company, 2026 ONLAT 24-007919/AABS

Licence Appeal Tribunal File Number: 24-007919/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:

Cyrus Daruwala

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Gary Marshall

APPEARANCES:

For the Applicant:

Bianca Crocetti, Paralegal

For the Respondent:

Christina Campoli, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Cyrus Daruwala, the applicant, was involved in an automobile accident on May 21, 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, Unifund Assurance 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 $3,777.50 for Psychological Services, proposed by Life Point Medical Inc. in a treatment plan/OCF-18 (“plan”) dated November 23, 2023?

iii. Is the applicant entitled to $2,618.88 for Chiropractic Services, proposed by E Clinic United Healing in a plan dated May 26, 2023?

iv. Is the applicant entitled to $2,998.88 for Chiropractic Services, proposed by E Clinic United Healing in a plan dated September 11, 2023?

v. Is the applicant entitled to $1,780.67 ($3,080.64 less $1,299.97 approved) for Chiropractic Services, proposed by E Clinic United Healing in a plan dated January 26, 2024?

vi. Is the applicant entitled to $2,486.00 for an Orthopaedic Assessment, proposed by Q Medical in a plan dated July 14, 2022?

vii. Is the applicant entitled to $2,000.00 for a Psychological Assessment, proposed by Life Point Medical Inc. in a plan dated October 19, 2022?

viii. Is the applicant entitled to $2,200.00 for a Chronic Pain Assessment, proposed by Life Point Medical Inc. in a plan dated April 20, 2023?

ix. Is the applicant entitled to $3,383.56 for Chiropractic Services, proposed by Safe Space Rehabilitation Centre in a plan dated June 7, 2024?

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

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

RESULT

3For the reasons that follow, I find:

1. The applicant’s injuries are predominately minor, and thus, the MIG monetary limit applies.

2. As the applicant is in the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.

3. The applicant is not entitled to an interest or an award.

PROCEDURAL ISSUES

4The respondent has requested that the Tribunal dismiss the special award issue, as the respondent did not receive particulars which were to be served 30 days after receipt of the redacted adjuster’s log notes as per the Case Conference Report and Order.

5The respondent also submits that the applicant’s submissions reference records from the Applicant’s family doctor, Dr. Bhupinder Purewal, from October 28, 2024, to May 8, 2025. However, these were not served in accordance with the CCRO and should not be admitted as evidence. The Respondent was never served with these productions until the Applicant’s written submissions were filed.

6With respect to the special award, I acknowledge the respondent’s submissions but find the issue of an award is properly before me, and I will consider the lack of particulars in the context of my analysis below, as appropriate. Further, while I am alive to the consideration there may be prejudice to the respondent with the admission of the CNR’s of Dr. Purewal from October 28, 2024, to May 8, 2025, I am of the opinion that any prejudice to the respondent from their admittance is outweighed by prejudice to the applicant with their exclusion. The respondent has had an opportunity to review the updated CNRs and respond to them. Therefore, I am denying the respondent’s request.

ANALYSIS

Applicability of the Minor Injury Guideline

7Section 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.”

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.

Is the applicant removed from the MIG due to a pre-existing injury?

9The applicant submits that his pre-existing shoulder pain sustained from a previous right shoulder dislocation in 2021 was exacerbated as a result of the accident and warrants removal from the MIG. The applicant relies on the CNRs from his family physician, Dr. Bhupinder Purewal, dated January 23, 2023, and a subsequent x-ray and ultrasound examination conducted by Orthopaedic Surgeon Dr. Read Abughaduma, on February 10, 2025, that shows tendinitis and a partial rotator cuff tear in his right shoulder.

10The respondent submits that the mere reference to a pre-existing condition does not automatically remove the applicant from the MIG. It submits that the applicant already had tendinitis prior to the accident and was referred for pre-accident right shoulder dislocations related to a pre-accident epilepsy injury. More importantly, the respondent submits that there are no medical reports or records stating that his pre-existing epilepsy, shoulder or back pain has impacted his ability to recover within the MIG limits. Furthermore, contrary to the applicant’s submissions, a partial tear is not sufficient for a MIG removal.

11I find that the applicant has a documented pre-existing right shoulder condition. However, I find that the applicant has not pointed to evidence that satisfies the second part of the test in s. 18(2). That is, he has not pointed to compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.

12In the absence of compelling medical evidence that states that the applicant’s pre-existing right shoulder condition precludes recovery within the MIG, I find that the applicant has not met his onus under s. 18(2).

13In addition, the applicant has not shown that his accident-related injuries are non-minor as they are captured by the definition of a minor injury in s. 3 of the Schedule.

Is the applicant removed from the MIG due to chronic pain with a functional impairment?

14The applicant has not met the onus to be removed from the MIG due to chronic pain with a functional impairment.

15The applicant submits he should be removed from the MIG due to chronic pain. To support their claim, he is relying upon the Clinical Notes and Records (“CNRs”) of the family physician, Dr. Purewal, and a Psychological Assessment with Psychologist Dr. Julie Sarwan, dated July 30, 2023.

16I did not find the applicant’s submissions regarding chronic pain to be helpful in meeting his burden. The family physician notes consistently mention injuries that fall within the MIG. Furthermore, there is no reference to chronic pain from any of the applicant’s treating physicians.

17The respondent disagrees with the applicant. It submits that the applicant has no functional impairment or disability, since the applicant’s pain in not ongoing, severe or functionally debilitating to rise to the level of chronic pain, given the minimal records and treatment, and that he continues to work.

18The respondent refers to the s. 44 Orthopaedic Report of Orthopaedic Surgeon, Dr. Jacqueline Auguste dated March 20, 2023, who diagnosed the applicant with myofascial strain/sprain injuries and right knee/distal femoral contusion with a favourable prognosis. His injuries were concluded to be under the MIG. Dr. Auguste completed an Addendum Report dated July 26, 2023, which did not change the findings.

19The respondent also argues that the applicant does not meet any of the six criteria for chronic pain under the AMA Guides: there is no use of prescription drugs; he has barely seen his family doctor and has no excessive dependence on health care providers or family; no secondary physical deconditioning; no withdrawal from social milieu as he continues to work; no failure to restore pre-injury function; and no psychosocial sequelae due to the accident.

20While a diagnosis of chronic pain syndrome is not required, the presence of intermittent pain or a standalone diagnosis of chronic pain is not enough to justify a removal from the MIG. There must be evidence of severe or functionally disabling pain. In this case, the evidence shows that the applicant’s treating physicians do not refer to chronic pain. The respondent’s experts have assessed the applicant and opine that he has minor injuries. The applicant has not made arguments that he meets three of the six criteria in the AMA Guides for chronic pain. Accordingly, I find the applicant has not referred to consistent, compelling and contemporaneous evidence of chronic pain with a functional impairment as to warrant removal from the MIG.

21Therefore, I find that the applicant has not satisfied her onus to prove that she warrants removal from the MIG on the basis of chronic pain with functional impairment.

Is the applicant removed from the MIG due to a psychological impairment?

22The applicant has not met the onus to prove he should be removed from the MIG due to psychological injury.

23The applicant argues he has sustained a psychological injury and been diagnosed with psychological disorders due to the accident. To support his claim, he again relies on the CNRs from his family physician and a psychological assessment with Psychologist Dr. Julie Sarwan, dated November 9, 2022.

24The expert report from Dr. Sarwan says the applicant has been diagnosed with post-traumatic stress disorder; adjustment disorder with mixed anxiety and depressed mood; somatic symptom disorder, with predominant pain, persistent, severe; and specific phobia, situational type (travelling in a motor vehicle). Dr. Sarwan goes on to recommend 16 sessions of psychological treatment, a driving reintegration assessment, psychotherapy counselling and a functional abilities evaluation.

25The respondent argues that the applicant’s symptoms are simply sequalae from the accident and relies upon a Section 44 Psychological Assessment conducted by Psychologist Dr. Fabio Salerno who conducted in person psychometric testing on March 20, 2023. Dr. Salerno found no accident-related psychological symptoms warranting a DSM-5-TR psychological diagnosis and that he is in the MIG. The July 26, 2023, Addendum Report of Dr. Salerno concluded that the additional documentation did not change this opinion. Further, on September 30, 2024, Psychologist Dr. Ricardo Harris assessed the applicant, administered various tests, and also opined that the Applicant’s injuries are in the MIG; there were no accident-related psychological impairments under the DSM-5-TR.

26I am persuaded by the submission of the respondent that the s. 44 assessments are more recent and reviewed the medical documentation and should be afforded more weight. I place significant weight on Dr. Salerno’s IE report because it involved psychometric testing and a clinical review. Dr. Salerno found no accident-related psychological symptoms and reported no DSM-5 condition. The report directly addresses the psychological dimension and remains unchallenged by any equally thorough contemporary assessment.

27In this case, I find that the applicant has not demonstrated on a balance of probabilities that she sustained a psychological impairment that would warrant a removal from the MIG.

28I found the applicant is kept within the MIG; she is subject to the treating limit of $3,500.00. Therefore, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.

Interest

29Since no benefits are awarded, the issue of interest under s. 51 of the Schedule does not arise.

Award

30The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld of delayed the payment of benefits.

31The applicant argues that the respondent should be liable to pay an award under regulation 664 because it unreasonably withheld or delayed payments to the applicant. While the applicant concedes that the actions of the respondent were not of malice intent, the result of those actions still withheld the payment of benefits and for that reason an award be granted.

32The respondent asserts that it complied with s. 38(8) of the SABS for all issues, with the exception of issue #5 which was responded to one day late; however, treatment from this plan was not incurred on this late day. The respondent’s notice letters detailed adequate medical and/or other reasons for the denials.

33The applicant must prove, on a balance of probabilities, that the respondent’s conduct was “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate to justify an award” under s. 10. I acknowledge the applicant’s position but find that the applicant is not entitled to the treatment plans in dispute and agree with the respondent that the denials were supported by medical evidence. The respondent has not unreasonably withheld or delayed payment.

34Consequently, the applicant is not entitled to an award.

ORDER

35For the reasons above, it is ordered that:

1. The applicant’s injuries are predominately minor, and thus, the MIG monetary limit applies.

2. As the applicant is in the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.

3. The applicant is not entitled to an interest or an award.

36The application is dismissed.