Citation: Bajwa v. Definity Insurance Company, 2026 ONLAT 24-007277/AABS

Licence Appeal Tribunal File Number: 24-007277/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:

Khalid Bajwa

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR: Steve Gilchrist

APPEARANCES:

For the Applicant: Muhammad Aftab Alam, Counsel

For the Respondent: Jeremy Hanigan, Counsel

HEARD: In Writing

OVERVIEW

1Khalid Bajwa, the applicant, was involved in an automobile accident on January 13, 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 IN DISPUTE

2The issues to be decided in the hearing are:

1. 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?
2. Is the applicant entitled to the physiotherapy services, proposed by Limitless Rehab in a treatment plan/OCF-18 (“plan”) as follows: i. $1,995.56 for physiotherapy service, in a plan submitted July 20, 2022; ii. $1,346.67 for physiotherapy service, in a plan submitted August 12, 2022; and iii. $3,010.88 for physiotherapy service, in a plan submitted November 17, 2023.
3. Is the applicant entitled to $3,977.71 for psychological services, proposed by Pearson Medical Assessment Centre in a treatment plan submitted July 17, 2023?
4. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Pearson Medical Assessment Centre in a plan submitted August 31, 2022?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld of delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3For the reasons that follow, I find that:

i. The applicant’s injuries are predominantly minor as defined in the Schedule, and he is held within the Minor Injury Guideline. ii. As the applicant is held within the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. iii. The applicant is not entitled to an award. iv. The applicant is not entitled to interest as there are no payments overdue for the benefits claimed.

Procedural issue

4The respondent raised the issue of the format and length of the written submission of the applicant. The respondent asked the Tribunal to exercise its discretion but did not request a specific remedy.

5In paragraph 20 of the Case Conference Report and Order (“CCRO”) for this matter, the parties were directed to prepare their materials according to the following format:

All submissions, evidence and authority briefs filed with the Tribunal must be double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins and be indexed, bookmarked/tabbed and consecutively paragraph and page numbered.

6The consequence of a party’s failure to abide by this requirement is laid out in paragraph 21 of the CCRO, namely:

The hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the Tribunal’s filing requirements.

7The respondent noted that the applicant did not provide 1.5-inch margins and, in several instances, did not double-space his submissions. The respondent noted that, in her decision regarding Ayub vs. Wawanesa Mutual Insurance Company, 2025 CanLII 8022 (ON LAT), paras 6-7, Adjudicator Hines warned the applicant’s counsel in that case, “margins were significantly widened and did not include proper spaces in between sentences or paragraphs.” Adjudicator Hines warned that failure to comply with margin width would run the risk of a future Adjudicator not considering their submissions.

8In his reply, the applicant notes that the submissions of the respondent also fail to meet the 1.5-inch margin rule.

9CCRO’s form the basis for the conduct of all Tribunal hearings and parties are required to comply with the requirements demanded of them in that document. I agree with the respondent that the applicant’s submissions breached the formatting directions in the CCRO…However, the respondent did not specify the relief it was seeking or any prejudice is suffered as a result and I note the applicant’s submissions that the respondent’s submissions similarly were outside the margin limits. I won’t exercise my ability to disregard the submissions which fell outside the proscribed format limits, in this matter, but only because both parties failed to abide by the formatting requirements.

ANALYSIS

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 limit?

Should the applicant be removed from the MIG on the basis of chronic pain?

10The applicant has not met his onus to prove he should be removed from the MIG on the basis of chronic pain.

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 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.

13The applicant is a 61-year-old male who is employed as a press operator in a job that involves prolonged standing/walking, bending, lifting, carrying and manipulation of objects. The applicant testified that he returned to work two weeks after the subject accident.

14The applicant submits that he should be removed from the MIG as a result of accident-related chronic pain.

15The applicant claims that chronic pain has compromised his ability to carry out the activities of daily living in which he was engaged prior to the accident. He claims he cannot do heavy lifting, such as heavy laundry or groceries, nor can he engage in prolonged periods of bending, which limits his ability to vacuum, mop and other household chores and he must rely on family members for assistance.

16The applicant relies on the clinical notes and records (“CNRs”) from his family physicians, Dr. Simarjot Grewal and Dr. Manpreet Singh, from Northpoint Family Medicine, and the CNRs of Limitless Rehabilitation to support his claim.

17Two days after the accident, the applicant attended at his family doctor, Dr. Simarjot Grewal, who prescribed Naproxen, heat treatments and stretching to deal with the post-accident injuries. At that visit, the patient reported “chest pain, neck pain, back pain” and “No head injury or loss of consciousness.”

18Dr. Grewal ordered a thoracic MRI for the applicant. The results of that MRI, taken on April 29, 2023 was “mild thoracic spine DDD (degenerative disc disease). No focal disc herniation or annular fissuring.” The applicant has made no submissions that DDD could be, in any way, related to the subject accident.

19Similarly, the results of a lumbar MRI of the applicant, taken on June 3, 2023 was “Multilevel mild degenerative changes as described above. There is no evidence for recent or remote posttraumatic bony injury.”

20The CNRs of Dr. Grewal include two more references to leg and back pain, in June and July 2023, which were the visits at which the doctor discussed the results of the MRI with the applicant. The doctor notes the degenerative disc disorder and makes no reference to any pain being accident related.

21The CNRs of Northpoint Family Medicine record the applicant first complained about back pain on November 15, 2019, and, on December 5, 2020, over a year prior to the subject accident. During the December visit, the family doctor noted that the applicant claimed he “had been doing continued lifting that (sic) his job but not heavy lifting”. Dr. Grewal opined that “the physical and repetitive nature of his work was the likely cause of his low back pain.” The CNRs of Northpoint Family Medicine on January 7, 2022, six days prior to the accident, note “Patient presents for right mld (sic) back pain for 2-3 weeks”.

22The applicant relies on a Disability Certificate (OCF-3) prepared by Harleen Kaur, a physiotherapist at Limitless Rehab on February 4, 2022. In that certificate, the applicant was diagnosed with sprain and strain of the cervical spine, sprain and strain of the lumbar spine, low back pain, whiplash disorder, lumbago with sciatica, stress, nervousness, sleep disorders and chest pain.

23The applicant undertook physiotherapy treatments, which he submits were providing relief, but he claims he was forced to discontinue those treatments when the respondent denied the corresponding treatment plan. After his first treatment, on March 4, 2022, the applicant only attended one treatment before June 3, 2022. After regular visits between June and September 2022, there was then an eight-month period where no treatment sessions were attended. His last physiotherapy treatment was on June 18, 2023.

24The respondent challenged the applicant’s explanation for his discontinuation of physiotherapy, noting that the applicant has been approved for coverage to the MIG limit and respondent maintains the applicant has $1,331.00 for physiotherapy treatments remaining under an approved treatment plan. The applicant replied that the respondent has been unwilling to pay that outstanding amount but did not direct me to any correspondence which would substantiate that claim.

25Dr. James Kenneth Stewart, GP, performed an Insurer’s Medical Examination on the applicant, and then reported on that examination on September 29, 2022. In that report, Dr. Stewart noted that his examination revealed no functional impairments for the applicant and diagnosed his back pain as preceding the accident and arising from the applicant’s occupation. Dr. Stewart further noted that the applicant had achieved full functional recovery from the accident-related soft tissue injuries and there is no ongoing musculoskeletal accident-related impairment.

26Dr. Stewart further noted “Mr. Bajwa reported that his wife did all of the overall housekeeping tasks prior to the subject accident and he reported no changes post-accident. He remains independent in his personal care tasks. Mr. Bajwa reported he attended the Mosque prior to the accident, which he has continued post-accident. He did not report any further recreational or social activities prior to the accident.”

27The applicant relies on a chronic pain assessment report by Dr. Grigory Karmy, MD, dated November 12, 2024. In the “Pre-Accident Medical History”, Dr. Karmy reported that the applicant had suffered a series of accidents or medical complaints which could be considered relevant, including:

• Broken ribs from a work-related accident in 2015
• Notes from Dr. Simarjot Grewal, his family physician, on November 15, 2019, December 5, 2020, and April 3, 2021, noting pain in the claimant’s lower back, which “could be muscular in nature” and “likely from repetitive work.”
• On September 8, 2021, the family doctor indicated pain and stiffness in Mr. Bajwa’s left shoulder after another fall at work. The physician referred him for physiotherapy. According to a progress report from Mr. Stuti Dhingra, a physiotherapist, dated October 13, 2021, the claimant had his “left shoulder tendinopathy and upper back myofascial tightness.”
• On January 7, 2022, Dr. Lisha Chander, a general practitioner, noted pain in the claimant’s right middle back and recommended Naproxen and Baclofen along with stretching exercises.

28Dr. Karmy notes that the applicant remains independent in his activities of daily living, albeit with some pain, for some tasks, which he mitigates by taking breaks.

29In his report, Dr. Karmy opined that the applicant met four of the six criteria for chronic pain syndrome found in the 6th edition of the AMA Guides for the Evaluation of Permanent Impairment. Dr. Karmy diagnosed the applicant with the following injuries he considered to be caused by the subject accident:

1. Possible mild Traumatic Brain Injury
2. Chronic Post-Traumatic Headache,
3. Chronic mechanical neck pain
4. Chronic mechanical lower back pain
5. Sacroiliac joint dysfunction
6. Chronic mechanical right shoulder pain
7. Chronic mechanical left hip pain
8. Myofascial pain syndrome
9. Chronic Pain Syndrome

30Dr. Karmy’s conclusion that the applicant has withdrawn from the social milieu and has failed to restore pre-injury function are contradicted by the evidence of Dr. Stewart and the fact the applicant has returned to full-time work and continues to attend his mosque. The applicant did not point or direct me to any evidence to demonstrate that there has been any functional limitations on his ability to maintain full-time employment since the accident.

31The applicant attended a second Insurer’s Physician Examination by Dr. Stewart on May 9, 2025. During that examination, the applicant indicated there has been no change to his housekeeping tasks, pre- and post-accident, he remained independent in his personal care and he continues to attend his mosque. While the applicant complained of some back pain, Dr. Stewart concluded that any pain was related to the applicant’s occupation and was unrelated to the subject accident. Dr. Stewart concluded that the applicant did not require any additional assessments or treatment.

32I am not persuaded that the evidence, in the CNRs of his treating physicians or from the conflicting claims made by the applicant during the assessments, support the applicant having a functional impairment. I prefer the assessment by Dr. Stewart over that of Dr. Karmy both because Dr. Karmy’s assessment is based, primarily, on the self-reporting of the applicant and because Dr. Stewart’s assessment is more current and he had access to a more extensive list of the applicant’s medical records. Dr. Stewart’s most recent assessment noted that the applicant has returned to work, maintains his regular attendance at his mosque and continues to engage in all his pre-accident activities of daily living, albeit with some pacing and pain. The CNRs of the family doctor, who is in the best position to judge the progress made by the applicant, post-accident, do not support the proposition that the applicant suffers from chronic pain related to the subject accident. Similarly, the results of the MRIs taken of the applicant note the absence of any injury to his back but, instead, the presence of degenerative disc disease, which is unrelated to the accident.

33While the applicant may have reported pain in the first months immediately post-accident, what is required for removal from the MIG is evidence of persistent pain with a functional impairment. The applicant has not established he has chronic pain, and I have not been led to supportive medical evidence which indicates a functional impairment.

34For this reason, I find that the applicant has not, on a balance of probabilities, met his onus to prove he should be removed from the MIG on the basis of chronic pain.

Should the applicant be removed from the MIG due to psychological injury?

35I find the applicant has not met his onus to prove he should be removed from the MIG due to psychological injury.

36The applicant submits that he should be taken out of the MIG because of his ongoing accident-related psychological impairments.

37The respondent sought to have the applicant’s injuries defined as “minor” and the applicant held within the MIG. The respondent cited Diaz v Pembridge Insurance, 2023 CanLII 44327 (ON LAT) ; MA v Wawanesa Mutual Insurance Company, 2020 CanLII 12762 (ON LAT); and 16-00438 v The Personal Insurance, 2017 CanLII 59515 (ON LAT) in support of its position that it isn’t sufficient for an applicant to self-report psychological issues, rather there must be a demonstrable impairment.

38The CNRs of his family doctor reveal that the applicant only made three references, in almost three years, to any psychological issues.

39In the CNR entry of Northpoint Family Medicine on February 11, 2022, one month after the accident, the doctor notes the applicant indicated he is depressed since the accident but he doesn’t know why. He then suggests it may be because he is alone in Canada, and the rest of his family is in the United States. In that same CNR, the applicant notes that he is sleeping okay. In response to the applicant’s complaints of depression, the doctor issued a prescription for Cipralex, an anti-depressant.

40Despite visiting his family doctor on multiple occasions, in the intervening months, there is no mention of any psychological issue until August 18, 2022. During that visit the applicant complained of stress/anxiety related to ongoing pain but admitted he had not filled the prescription for Cipralex. He was, again, given a prescription for Cipralex and advised to take it to deal with his anxiety.

41On October 19, 2024, at the request of the applicant, Dr. Grewal issued a reference letter which noted “The above named patient is recommended Psychotherapy and Counselling for Anxiety Symptoms, Stress and Insomnia related to his MVA.” There had been no references to psychological issues in the previous 22 months.

42The applicant attended a s. 25 Psychological Examination performed by Dr. Toneatto, on June 19, 2023. Dr. Toneatto diagnosed the applicant as suffering from somatic symptom disorder and unspecified trauma and stress related diagnosis, adjustment disorder with mixed anxiety and depressed mood, and insomnia disorder. A recommendation for 12 sessions of cognitive behaviour therapy, with a component of systematic desensitization, sleep management, relaxation training and processing the motor vehicle accident trauma was noted.

43The respondent suggests that I give no weight to the assessment by Dr. Toneatto as his conclusions were based solely on the self-reporting by the applicant. The respondent cited Perri v Allstate Canada, 2022 CanLII 65660 (ON LAT); Raveenthiran v Aviva Insurance Canada, 2023 CanLII 72605 (ON LAT); and Muhumed v Economical Insurance Company, 2024 CanLII 49090 (ON LAT) as decisions which support the proposition that limited weight should be given to self-reporting when it is inconsistent with medical records and other assessments.

44In terms of the clinical interview and the four clinical tests administered by Dr. Toneatto, I note that all involved self-reporting. I note the disclaimer that Dr. Toneatto, himself, places in his report, namely: “Please note that the contents of this report are based, to a large degree, on Mr. Khalid’s presumed truthfulness. As such, any inconsistencies in self-report may influence the clinical impressions and conclusions.”

45In the notes of Dr. Toneatto, the applicant reported that he took the anti-anxiety medication Cipralex for one year but then discontinued its use noting “I feel better now”. The respondent suggests the applicant never filled either of the two prescriptions he was given for Cipralex. As the applicant has not provided a prescription summary, I have insufficient evidence to make a finding in this matter.

46On February 6, 2024, the applicant attended a s. 44 Psychological Examination by Dr. Alfonso Marino. In addition to a clinical interview, Dr. Marino administered a series of psychometric measures, including validity tests to ensure a more objective consideration of the applicant’s responses. The applicant indicated that he understood the measures, and he was assisted by an Urdu translator.

47The applicant failed the validity testing on all three of the clinical tests. Results of all psychometric measures administered were invalid. Dr. Marino notes that the results of the Personality Assessment Inventory (PAI) and the Structured Inventory of Malingered Symptomatology (SIMs), in particular, suggested significant negative impression management.

48Dr. Marino concluded: “The extent of the validity issues is significant enough that I am unable to formulate or communicate a psychological diagnosis with any degree of confidence.”

49On April 2, 2025, the applicant underwent a s. 44 Insurer’s Psychology Examination by Dr. Sharleen McDowall. Dr. McDowall reviewed by far the most extensive list of medical evidence of any of the applicant’s assessors, including several documents which were not made evidence in this hearing. As such, it is reasonable to conclude that Dr. McDowall had the broadest perspective when considering the input of the applicant at examination.

50In this assessment, the applicant denies losing consciousness after the accident. Dr. McDowall indicated the applicant “stated that he continues to independently perform all activities of personal care and daily living post-accident” and that the applicant reported that, at work, he “is performing all of his pre-accident duties but will take frequent breaks and sit to do his work.”

51When it came to psychological and social functioning, Dr. McDowall noted the applicant “expressed that he feels his mental health is “better than before” and advised that many of the psychological symptoms he had experienced have largely resolved.” In contrast to his claims to Dr. Toneatto, the applicant told Dr. McDowall that he denied having noticed any changes surrounding energy and motivation and advised that he has re-engaged in all of his pre-accident activities of daily living. The applicant indicated he continues to attend prayers and visits his mosque on a regular basis, he continues to attend regular social and family gatherings, and he maintains positive relationships with his family. In addition, the applicant denied having noted any changes surrounding his cognitive functioning.

52It is Dr. McDowall’s clinical opinion that the applicant does not currently meet the clinical criteria for an accident-related DSM-5 (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) diagnosis.

53There are considerable disagreements between the conclusions of the three psychological assessors. Even considering the opinions of Dr. Marino and Dr. Toneatto, I am convinced that the most current assessment, by Dr. McDowall, offers the most reliable conclusions as to the applicant’s psychological condition because she had access to the most extensive list of the applicant’s medical records and her observations were more consistent with the family doctor CNRs. I am not persuaded that the CNRs establish accident-related psychological impairments due to the long gaps between symptoms reported by the applicant.

54For the reasons outlined above, on the balance of probabilities, I find the applicant has not met his onus to prove he should be removed from the MIG due to psychological injury.

Is the applicant entitled to the treatment plans in dispute?

55The applicant is not entitled to the treatment plans in dispute.

56As I have found that the applicant continues to be held within the MIG, it is not necessary for me to determine whether the treatment plans in dispute are reasonable and necessary.

Award

57I find the respondent is not liable to pay an award.

58The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this test.

59The applicant did not lead submissions or evidence to support his award claim, and it therefore has not established grounds for an award.

Interest

60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, the applicant is not entitled to interest.

ORDER

61The Tribunal orders:

i. The applicant’s injuries are predominantly minor as defined by the Schedule, and his treatment should be held within the Minor Injury Guideline. ii. As the applicant is held within the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. iii. The applicant is not entitled to an award. iv. The applicant is not entitled to interest as there are no payments overdue for the benefits claimed.