Licence Appeal Tribunal File Number: 24-013192/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:
Abhishek Sharma
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Patrick Baker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Abhishek Sharma, the applicant, was involved in an automobile accident on November 14, 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, Certas Direct 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 $10,022.57 for chronic pain treatment services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated March 15, 2023?
iii. Is the applicant entitled to $2,686.00 for an Orthopedic Assessment, proposed by Complete Rehab Centre in a plan dated October 25, 2022?
iv. Is the applicant entitled to $1,996.80 for a Functional Abilities Assessment, proposed by MedMax Assessment Centre in a plan dated August 26, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant’s injuries are predominantly minor; therefore, he remains within the MIG limits.
As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
The applicant is not entitled to interest.
ANALYSIS
Are the applicant’s injuries predominantly minor?
4I find that the applicant has not established that his accident-related impairments fall outside the MIG.
5Section 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.”
6An 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.
7The applicant submits that he sustained both chronic pain and psychological impairments as a result of the accident, such that his claim falls outside the MIG.
Chronic Pain with functional limitations
8I find that the applicant has not sustained chronic pain with a functional impairment warranting removal from the MIG.
9In support of his position, the applicant relies on the orthopaedic assessment by Dr. Manoj Bhargava, dated November 21, 2022, as well as family physician records, diagnostic imaging, and an OCF‑3.
10The respondent submits that the applicant sustained, at most, soft‑tissue injuries as a result of the accident. Strain‑type injuries to the neck, back, shoulders, and wrist fall squarely within the definition of “minor injury” under the Schedule.
11In my view, contemporaneous primary care records are an important starting point. The applicant first saw his family physician on April 14, 2022, approximately five months after the accident. He reported right shoulder, right wrist, and low back pain. The pain was described as mild and improving with physiotherapy. There were no neurological symptoms, such as radiation, numbness, or weakness. Dr. Abeer El Morsy, the applicant’s family physician, assessed low back strain and right shoulder tendinosis and recommended continued physiotherapy, anti‑inflammatory medication, and imaging.
12At a follow‑up three months later on July 13, 2022, the applicant again reported low back and right shoulder pain, with continued improvement with physiotherapy. Imaging dated July 4, 2022, showed only mild straightening of the cervical lordosis, no fractures, no significant lumbar pathology, a normal right shoulder X‑ray, and no evidence of acute rotator cuff pathology or bursitis on ultrasound. The assessment remained musculoskeletal strain, with conservative treatment continued.
13Records from Dr. Sherif Paul Nessim, a primary care provider, dated July and August 2022, document ongoing subjective complaints of pain, including persistent upper back pain, neck, back, and right shoulder pain, along with diagnoses of cervical myofascial strain, thoracic and lumbar strain, insomnia, and a resolving wrist strain.
14I accept that the applicant experienced ongoing pain after the accident. However, persistent pain alone does not remove an applicant from the MIG. The test is chronic pain with a functional impairment.
15The applicant relies heavily on Dr. Bhargava’s opinion that he experiences chronic pain involving the cervical spine, lumbar spine, and right shoulder, including subacromial bursitis or rotator cuff tendinitis, with a guarded prognosis. By its nature, chronic pain may persist beyond tissue healing and is not necessarily expected to correspond with abnormalities on diagnostic imaging. In this context, Dr. Bhargava, as an orthopaedic specialist, is qualified to diagnose chronic pain. However, while the presence of chronic pain may be accepted, the difficulty lies in reconciling this opinion with the objective evidence of functional impairment. Imaging studies did not demonstrate fractures or significant structural pathology, and the treating records predominantly describe strain‑type soft-tissue injuries managed conservatively, with no consistent objective findings indicating ongoing impairment or functional limitation.
16Even acknowledging chronic pain, the evidentiary focus must be on whether it results in functional impairment. In this regard, the record contains limited objective evidence of functional restriction, and the applicant has not clearly identified specific activities he cannot perform due to his symptoms. The applicant’s return to full‑time employment in December 2021, which continued thereafter, weighs against a finding of significant or ongoing functional impairment.
17I also accept the respondent’s submission that the medical evidence is limited after August 2022. The most recent primary care note in evidence is dated August 29, 2022, and there is minimal contemporaneous documentation thereafter describing the applicant’s clinical status or treatment course.
18I have considered the applicant’s self‑reported limitations and the OCF‑3 dated November 29, 2021, which documents the applicant’s reported functional difficulties at that time. While this form supports the presence of symptoms and perceived limitations, it offers limited detail on objectively verifiable restrictions or on the duration and impact of those limitations over time. Considered alongside the entire record, including objective clinical findings, subsequent treatment history, and the applicant’s return to sustained full‑time employment, the OCF‑3 does not establish ongoing functional impairment sufficient to support removal from the MIG.
19Therefore, I find that the applicant has not established that he has chronic pain with a functional impairment that warrants removal from the MIG.
Psychological Impairments
20I find that the applicant has not established psychological impairments sufficient to remove him from the MIG.
21The applicant relies primarily on the psychological report of Dr. Kenneth Keeling, a psychologist, based on an assessment conducted by Ms. Mila Popova, a registered psychotherapist, on June 30, 2022.
22The respondent relies on a section 44 psychological assessment conducted by Dr. Tatiana Dumitrascu, a psychologist, on June 13, 2022, which concludes that the applicant did not sustain an accident‑related psychological disorder.
23Primary care records from Dr. Nessim for July and August 2022 include a reference to “PTSD” in one assessment line. However, the accompanying clinical notes do not otherwise describe a psychiatric history, detailed mental status examination, or functional limitations attributable to a psychological condition. Subsequent chart entries focus primarily on pain complaints and insomnia.
24Dr. Keeling diagnosed Major Depressive Disorder, single episode, moderate, and Pain Disorder with Related Psychological Factors, and reported extreme impairment on the WHODAS 2.0. He concluded that the applicant’s psychological condition takes him outside the MIG.
25I place greater weight on the section 44 assessment conducted by Dr. Dumitrascu. She conducted an in‑person assessment, reviewed the medical records, and administered psychometric testing. She noted that the applicant was working full‑time as a forklift operator, managing personal care, and performing household tasks. He did not report significant emotional symptoms related to the accident, except for feeling irritable or low when in pain.
26Dr. Dumitrascu identified symptom magnification and validity concerns in the psychometric testing and concluded that the applicant did not meet DSM‑5 criteria for a psychological disorder. She further concluded that there were no accident‑related psychological restrictions affecting the applicant’s daily functioning.
27I prefer Dr. Dumitrascu’s evidence because it is more consistent with the contemporaneous primary care records, clearly explains psychometric validity concerns, and aligns with the applicant’s demonstrated level of functioning, including sustained full‑time employment.
28Although a formal DSM‑5 diagnosis is not always required to remove an applicant from the MIG, the applicant must still establish, through persuasive evidence, a genuine and functionally limiting psychological impairment. On this record, that burden has not been met.
Conclusion
29After considering the totality of the evidence, I find that the applicant sustained predominantly strain‑ and sprain‑type soft‑tissue injuries and associated sequelae.
30Accordingly, on a balance of probabilities, I conclude that the applicant has not established that his accident-related impairments fall outside the MIG.
Is the applicant entitled to the disputed treatment and assessment plans?
31As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Because I have found that none of the disputed benefits are payable, no amount is overdue, and no interest is owing.
ORDER
33For the above reasons, it is ordered that:
i. The applicant’s injuries are predominantly minor; therefore, he remains within the MIG limits.
ii. As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: May 6, 2026
Harouna Saley Sidibé
Adjudicator