Citation: Iqbal v. Aviva General Insurance Company, 2026 ONLAT 24-015503/AABS

Licence Appeal Tribunal File Number: 24-015503/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:

Mohammed Iqbal

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Moninder Khattra, Counsel

For the Respondent: Andrew Smith, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Mohammed Iqbal, the applicant, was involved in an automobile accident on December 30, 2023, 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, Aviva General 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:

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 limit and in the Minor Injury Guideline (“MIG”)?
2. Is the applicant entitled to an income replacement benefits (“IRB”) in the amount of $400.00 per week from January 6, 2024, to date and ongoing?
3. Is the applicant entitled to the following treatment plans proposed by Downsview Healthcare Inc. in the amount of: i) $2,486.00 for a chronic pain assessment dated October 19, 2024; and, ii) $2,486.00 for a neurological assessment dated April 29, 2024?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

4The applicant is not entitled to an IRB.

5Given the applicant is subject to the MIG, it is not necessary to consider whether the disputed treatment plans are reasonable and necessary.

6No interest is payable.

ANALYSIS

The applicant has not demonstrated on a balance of probabilities that he suffers from accident-related injuries that warrant removal from the MIG

7I find that the applicant has not demonstrated on a balance of probabilities that he suffers from accident-related chronic pain with functional impairment to warrant removal from the MIG.

8Section 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 in accordance with the MIG. 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.”

9An 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 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.

10The applicant submits that he should be removed from the MIG based on his diagnosis of chronic pain and functional impairments. The applicant relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Hany Beshay, and he submits that he has consistently reported pain in his neck, back and shoulder to his doctor since the accident. Dr. Beshay’s evidence does not support that the applicant suffers from chronic pain with functional impairments as a result of the accident. Although the applicant submits that his pain is prolonged after the accident, he does not mention any functional limitations as a result of his accident-related injuries. The applicant makes no submissions regarding his functional limitations under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (the “Guides”).

11The respondent argues that the medical evidence does not support a diagnosis of chronic pain, and the applicant does not meet the definition of chronic pain under the Guides.

12While it is not binding on the Tribunal to follow the Guides, the criteria set out in the Guides can be a useful tool in assessing an applicant’s claim for chronic pain. The Guides state that at least three of the following six criteria must be met for a diagnosis of chronic pain:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
2. Excessive dependence on health care providers, spouse or family;
3. Secondary physical deconditioning due to disuse and/or fear avoidance of physician activity due to pain;
4. Withdrawal from social milieu, including work, recreation, or other social contracts;
5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression or non-organic illness behaviours.

13The respondent submits that the applicant has not demonstrated that he has functional impairments pursuant to the Guides to warrant removal from the MIG on the basis of chronic pain. He returned to work 3 months after the accident, and he has not exhausted the treatment limits under the MIG limits.

14The respondent relies on the Insurer’s Examination (“IE”) report dated August 7, 2024, by Dr. Isa Mohammed, general practitioner. The respondent submits that Dr. Mohammed concluded that the applicant sustained sprain and strain type injuries to his right shoulder and elbow as a result of the accident, which are soft tissue injuries that fall within the MIG.

15The applicant’s evidence shows that his pain predated the accident, giving rise to a causation issue. In addition, the evidence does not support that the applicant’s accident-related pain results in functional limitations. For example, there is evidence that the applicant visited his doctor on a regular basis both before and after the accident, with complaints of neck, shoulder and back pain, including for renewal of medications. However, the applicant makes no submissions that his pre-existing conditions prevent him from achieving maximal recovery under the MIG.

16I find that the frequency of the applicant’s visits to his doctor did not change after the accident and several of his visits involve the same complaints of neck, shoulder and back pain with spasms and decreased range of motion. Therefore, I find that the applicant has not met his burden of establishing that he developed chronic pain with functional limitations as a result of the accident to warrant removal from the MIG.

17Overall, I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG in the absence of any medical documentation from his treating physicians with consistent findings in support of an accident-related chronic pain with functional impairment.

18Therefore, I find that the applicant has not demonstrated that his accident-related injuries fall outside the MIG on the basis of chronic pain.

The applicant is not entitled to an IRB

19The applicant seeks an IRB for the period from January 6, 2024 to date and ongoing, which covers both the period of 104-weeks after the accident and post-104-weeks after the accident.

a) Pre-104 Week IRB

20I find that the applicant has not met his onus to identify his pre-accident job duties in information technology (“IT”) hardware and software or whether he is able to substantially perform these duties after the accident.

21To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which asks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

22The applicant submits that he was employed in IT hardware and software which involved travel, heavy lifting and printer repairs. The applicant does not direct me to any evidence to identify the essential tasks of his pre-accident employment. The applicant submits that he initially returned to work after the accident, but he has been unable to continue working since August 2024 due to accident-related pain in his neck, shoulders and back. Although the applicant refers to the CNRs of Dr. Beshay, there is no evidence in support of his substantial inability to return to his pre-accident employment, and Dr. Beshay notes before the accident on May 15, 2019, that the applicant was advised to avoid heavy lifting.

23The respondent submits that the applicant returned to work after the accident and it relies on multidisciplinary IE reports dated October 31, 2024, by Dr. Isa Mohammed, general practitioner; Dr. Douglas Saunders, psychologist; Dr. Brandon Kucher, neurologist; and David Morris, kinesiologist. All the assessors conclude that the applicant has returned to work in the IT business and he is not substantially unable to perform the essential tasks of his pre-accident employment. The respondent submits that the applicant has not provided copies of his Employer’s Confirmation of Income (“OCF-2”), employment file, and tax records as set out in the Case Conference Report and Order dated April 22, 2025 (“CCRO”).

24I find that on July 26, 2024, the applicant reported to the IE assessor, Dr. Mohammed that he returned to work after the accident as a senior business analyst/senior project lead at Hostess. He also reported his return to work after the accident to IE assessors, David Morris on July 22, 2024, and to Dr. Saunders on August 27, 2024. On October 19, 2024, the applicant reported to IE assessor, Dr. Kucher, that he initially returned to work after the accident until August 2024. Although the applicant submits that his pain symptoms prevented him from continuing to work after August 2024, he has not directed me to any evidence in support of this position.

25I find that the applicant has not met his burden of proving on a balance of probabilities that he had a substantial inability to perform the essential tasks of his pre-injury employment. The applicant submits and he reported to IE assessors that he returned to work after the accident until August 2024. The applicant has not provided evidence in support of the essential tasks of his pre-accident employment he was unable to perform as a result of the accident, or for the periods of time he was unable to perform these tasks. In addition, the applicant has not produced medical evidence in support of a substantial inability to perform the essential tasks of his pre-accident employment. As a result, the applicant has not established his entitlement to an IRB for the period of the claim from January 6, 2024 to date and ongoing.

26As a result, I find on a balance of probabilities that the applicant has not met his burden of establishing entitlement to an IRB.

b) Post-104 weeks after the accident

27The test for entitlement to post-104-week IRB changes. To receive payment for a post-104-week IRB under s.6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.

28I find that since the applicant has not met his burden of establishing entitlement to an IRB to 104 weeks, there is no need to address his entitlement to a post-104-week IRB.

The disputed treatment plans

29Since the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plans are reasonable and necessary.

Interest

30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.

ORDER

31For the reasons outlined above, I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit;

ii. Given the applicant is subject to the MIG, it is not necessary to consider whether the plans for a chronic pain assessment and a neurological assessment are reasonable and necessary;

iii. The applicant is not entitled to an IRB;

iv. Interest is not payable; and,

v. The application is dismissed.