Licence Appeal Tribunal File Number: 24-013699/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:
Kishawn Hemmings
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Phillip Paglino, Counsel
For the Respondent:
Mark Esteireiro, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Kishawn Hemmings, the applicant, was involved in an automobile accident on June 30, 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 the services proposed by Alma Rehab Inc., as follows:
a. $1,995.33 for psychological services, in a treatment plan/OCF-18 (“plan”) dated October 31, 2022;
b. $2,534.34 ($3,244.58 less $710.24 approved) for physiotherapy services, in a plan dated November 22, 2022; and
c. $2,912.56 for physiotherapy services, in a plan dated February 2, 2023?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
i. The applicant’s injuries are predominantly minor as defined in the Schedule; therefore, the applicant remains within the MIG.
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.
PROCEDURAL ISSUES
4The procedural issue to be determined is whether the respondent’s written submissions, which exceed the page limit set out in the Case Conference Report and Order (“CCRO”), should be excluded.
5In his reply submissions dated October 1, 2025, the applicant objects to the respondent’s written submissions on the ground that they exceed the seven-page limit set by the CCRO dated March 10, 2025. He requests that the final two pages of the respondent’s submissions not be considered.
6The CCRO specifies that the parties’ initial written submissions are limited to seven pages and that the applicant’s reply submissions are limited to three pages. The CCRO further provides that the hearing adjudicator retains discretion to accept and consider submissions that do not strictly comply with these filing requirements.
7The respondent acknowledges that its submissions exceed the permitted length by two pages and submits that the excess resulted from inadvertence. The respondent requests that the Tribunal exercise its discretion to consider the submissions in their entirety.
8The applicant maintains that considering the excess pages would be procedurally unfair and contrary to the CCRO, although he does not identify any specific prejudice arising from the additional length, beyond merely asserting non-compliance with the page limit.
9I am not persuaded that excluding the two excess pages is warranted in this case. The respondent exceeded the page limit by a modest margin. The applicant was aware of the respondent’s submissions and addressed them in his reply. He has not shown that the additional pages impaired his ability to meaningfully participate in the proceeding or otherwise caused procedural unfairness.
10Although the respondent exceeded the page limit by two pages, the applicant has not identified any resulting prejudice, and the determinative issue can be decided irrespective of the excess length. I therefore exercise my discretion to consider the submissions in full.
ANALYSIS
Are the applicant’s injuries predominantly minor?
11I find that the applicant has not established that his accident‑related impairments fall outside the MIG.
12Section 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.”
13An 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.
14The applicant submits that he should be removed from the MIG due to pre-existing chronic back pain and psychological impairment.
Pre-existing Condition
15For the reasons below, I find that although the applicant has established the existence of a pre‑existing back condition, he has not provided compelling medical evidence that the condition would prevent maximal medical recovery if he were limited to MIG‑level care.
16The applicant submits that he had a documented history of chronic back pain prior to the accident, which was aggravated by the accident. He relies on the clinical records from Howden Medical Clinic, records from his family physician, Dr. Gnanindra Manawadu, and the OCF‑3 completed by Dr. Roger Singh, chiropractor, to support persistent pain and functional impairment before and after the accident.
17The respondent submits that the evidence supports a finding that the applicant sustained predominantly minor soft‑tissue injuries. It relies primarily on the s. 44 multidisciplinary assessment, including the general practitioner assessment by Dr. Sabrina Ming Wai Tu. The respondent argues that although there was a history of back pain, it had resolved before the accident and would not materially complicate recovery.
18Clinical evidence confirms pre‑accident back complaints. On February 28, 2020, Dr. Seyed Hamid Reza at Howden Medical Clinic recorded that the applicant performed heavy lifting daily for work and bodybuilding and reported left groin pain and a lump. He was advised to refrain from heavy lifting. A note dated April 24, 2020, records “whole back pain” related to loading and unloading trucks. The pain was documented as non‑radiating and manageable, with conservative treatment recommended.
19Dr. Manawadu’s November 1, 2020, entry states that the applicant injured his back at work in January 2020, that it was “now better,” and that he denied ongoing symptoms. Subsequent post‑accident records describe pain as “worse since MVA” and later characterize the condition as “chronic back pain – worsened after the MVA.” These records document escalating pain but do not contain an opinion linking the pre‑existing condition to impaired recovery that would warrant removal from the MIG.
20The OCF‑3 dated August 12, 2022, lists multiple soft‑tissue diagnoses, sleep disturbance, fatigue, psychosocial stressors, and acute pain. While this form documents reported symptoms, it does not provide objective findings or a medical opinion on whether a pre‑existing condition would prevent maximal recovery under the MIG framework.
21During the January 4, 2023, insurer examination, Dr. Tu documented that the applicant performed full duties as a FedEx shuttle driver, including prolonged driving and heavy lifting of up to 100–115 pounds, with assistance if required. Dr. Tu noted that although the applicant had experienced intermittent back pain in the past, his symptoms improved after starting at FedEx in November 2021 and resolved entirely before the accident. Dr. Tu diagnosed a thoracic strain resulting from the accident and concluded that the applicant sustained uncomplicated soft‑tissue injuries only.
22I accept that the applicant has a documented pre‑existing back condition. However, s. 18(2) requires more than the mere existence of, or post‑accident worsening of, symptoms. The applicant must provide compelling medical evidence that the pre‑existing condition would prevent maximal recovery if MIG‑restricted. On this issue, I prefer the evidence of Dr. Tu, as her opinion directly addresses the statutory test under s. 18(2) is based on a contemporaneous functional assessment and provides a clear explanation as to why the applicant’s prior back complaints would not be expected to impede recovery within the MIG.
23The treating records show persistent complaints but do not include a medical opinion addressing the s. 18(2) threshold. Evidence of ongoing pain, without a medical opinion explaining how a documented pre‑existing condition would impede recovery under MIG‑level care, is insufficient to meet the s. 18(2) threshold.
24The broader evidence also weighs against removal from the MIG on the basis of a pre-existing condition. The applicant did not attend the hospital after the accident, returned to work without restrictions, and first sought care from a family physician approximately three months post‑accident. On December 2, 2022, he described his pain as mild and improving. Diagnostic imaging of the thoracic spine, lumbar spine, and sacroiliac joints was normal, as were subsequent MRI findings. While the absence of objective findings is not dispositive, it is relevant to assessing whether the evidentiary threshold for MIG removal has been met.
25Accordingly, on the balance of probabilities, I find that the applicant has not established entitlement to removal from the MIG on the basis of a pre‑existing condition.
Psychological impairment
26I find that the applicant has not established a psychological impairment that removes him from the MIG.
27The applicant relies on the October 31, 2022, psychological treatment plan prepared by Dr. Konstantinos Papazoglou, which includes a provisional diagnosis of adjustment disorder with mixed anxiety and depressed mood. He relies on the January 27, 2023, Insurer Examination report by Dr. Mehdi Lotfalizadeh (psychologist) for the opinion that, as a result of the June 30, 2022, accident, the applicant’s emotional functioning has been adversely affected, including an emotional reaction to pain and marked anxiety associated with driving.
28The respondent submits that the psychological evidence does not establish a confirmed diagnosis or functional impairment sufficient to remove the applicant from the MIG, and that it relies primarily on Dr. Lotfalizadeh’s assessment.
29Dr. Papazoglou’s treatment plan is preliminary. It provides a provisional diagnosis and recommends further psychological assessment. Although the record includes some psychological evidence, it lacks documentation from a family physician regarding psychological complaints or treatment.
30Dr. Lotfalizadeh’s insurer’s examination records indicate self‑reported anxiety while driving and emotional distress related to pain. However, the standardized test results were deemed invalid due to an elevated Structured Inventory of Malingered Symptomatology (SIMS) score, which suggested possible exaggeration. Although Dr. Lotfalizadeh recognized that genuine psychological symptoms may be present despite invalid test results, the assessment provides limited reliable evidence to substantiate MIG removal based on a psychological condition.
31I have considered the applicant’s reliance on decisions such as Banton v Belair, 2025 CanLII 23463 (ON LAT) and Douse v Economical Mutual Insurance Company, 2025 CanLII 20846 (ON LAT). Even though I am not bound by the Tribunal’s prior decision, those cases are fact‑specific and involved different evidentiary records, including confirmed psychological diagnoses. In the present matter, the applicant relies in part on the January 27, 2023, Insurer Examination report of Dr. Lotfalizadeh; however, I was not directed to any corroborating evidence from the family physician, such as clinical notes and records documenting psychological complaints, findings, or treatment. Unlike the cases relied upon by the applicant, the evidentiary record here does not provide a sufficiently reliable basis to conclude that the applicant’s psychological symptoms arising from the accident meet the threshold for removal from the MIG.
32Accordingly, on a balance of probabilities, I find that the applicant has not established a psychological impairment that removes him from the MIG.
Conclusion
33The applicant has not demonstrated compelling medical evidence that a documented pre‑existing condition would prevent maximal recovery under the MIG, nor has he established a psychological impairment that warrants removal from the MIG.
34I therefore find that the applicant’s accident‑related impairments are predominantly minor and subject to the MIG.
Is the applicant entitled to the disputed treatment plans?
35As the applicant remains subject to the MIG, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary.
Interest
36Interest applies to 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, there are no overdue payments on which interest can accrue.
ORDER
37For the above reasons, it is ordered that:
i. The applicant’s injuries are predominantly minor as defined in the Schedule; therefore, the applicant remains within the MIG.
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.
Released: May 14, 2026
Harouna Saley Sidibé
Adjudicator