Licence Appeal Tribunal File Number: 25-002674/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:
Tak Hung (Richard) Cheung
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Bernard Trottier
APPEARANCES:
For the Applicant:
Raffi Akelian, Counsel
For the Respondent:
Ryan Jefferies, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Tak Hung (Richard) Cheung, the applicant, was involved in an automobile accident on November 16, 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 Intact Insurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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?
Is the applicant entitled to $3,713.72 for physiotherapy services, proposed by Midland Wellness Centre in a treatment plan/OCF-18 (“OCF-18”) dated February 22, 2022?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Verity Medical Assessments in an OCF-18 dated April 28, 2025?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that his injuries warrant removal from the MIG.
4Since the applicant’s injuries are considered minor, the proposed OCF-18s seeking services outside of the MIG are not payable.
5An award under s. 10 of Reg. 664 is not payable.
6Since no benefits are payable, no interest is payable.
PROCEDURAL ISSUES
7On October 9, 2025, the applicant served a Notice of Motion to exclude the insurer’s examination (“IE”) reports of Dr. Rakesh Ratti, psychologist, and Dr. Mohamed Khaled, general practitioner, dated September 9, 2025 and September 15, 2025, respectively, from the hearing record because they were served on the applicant after the 90-day evidence production deadline established in the Case Conference Report and Order of June 3, 2025 (the “CCRO”).
8On October 17, 2025, the respondent notified the applicant that it would not be relying on these IE reports for the hearing.
9As the respondent has indicated that it would not be relying on the disputed IE reports, the Motion is moot. I make no finding on the Motion.
ANALYSIS
The Minor Injury Guideline
10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.”
11An 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.
12The OCF-18s in dispute sought services outside of the MIG. The CCRO indicated that the parties agreed that the MIG limit was exhausted.
13The parties dispute whether the applicant’s injuries warrant removal from the MIG based on the following factors:
Whether the applicant suffered non-minor left shoulder injuries as defined under s. 3(1) of the Schedule;
Whether he had documented pre-existing spine injuries that preclude recovery if he is kept within the MIG;
Whether he suffered a chronic pain condition with functional impairment; and
Whether he suffered psychological impairments as a result of the accident.
14The parties also dispute whether the proposed OCF-18s plans are reasonable and necessary.
The applicant’s left shoulder injuries are considered “minor” under s. 3(1)
15The applicant submits that his injuries do not meet the definition of a “minor” injury under s. 3(1) of the Schedule, because the ultrasound of his left shoulder taken by Dr. Jeffrey Grenville, radiologist, on November 23, 2021, revealed mild tendinosis of the supraspinatus, trace biceps tenosynovitis, and significant rotator cuff degeneration, consistent with the applicant’s shoulder pain, and pain when lifting.
16The respondent made no submissions on whether the applicant’s left shoulder injuries were considered “minor” under s. 3(1).
17I note that Dr. Grenville’s report states, specifically, that there was no rotator cuff tear, and he does not note any other muscle or ligament tears. Tendinosis and tenosynovitis are strain and inflammation conditions that would meet the definition of a minor injury under s. 3(1). For these reasons, I find that the applicant’s accident-related left shoulder injuries, by themselves, do not warrant removal from the MIG.
The applicant’s pre-existing spine conditions do not warrant removal from the MIG
18To warrant removal from the MIG for a pre-existing condition under s. 18(2) of the Schedule, an injured person must satisfy a two-part test:
whether there is compelling evidence of a pre-existing injury or condition that was documented by a health practitioner before the accident; and
whether there is compelling evidence stating that the condition precludes maximal recovery from the minor injury if they are kept within the confines of the MIG.
19The applicant submits that, on the day of the accident, the applicant attended Scarborough General Hospital, where Dr. Sanjay Kundu, general practitioner, upon review of a computed tomography (“CT”) scan of the cervical spine, opined that the applicant had multilevel degenerative disc disease, with moderate to severe neural foraminal narrowing (i.e., narrowing of the vertebral openings) and mild spinal canal stenosis (i.e., narrowing of the spinal canal).
20On November 20, 2021, the applicant was seen by Dr. John Speirs, radiologist, who noted that the applicant had mild discogenic degenerative changes at the C4-5, C5-6 and C6-7 levels. In addition, Dr. Speirs noted an old compression fracture of L2, involving the superior endplate with marked wedging, as well as discogenic degenerative changes at the L1-2 and L2-3 levels, and mild facet degenerative joint changes at the L4-5 and L5-S1 levels. The applicant argues that his degenerative spine conditions have worsened because of the accident, warranting removal from the MIG.
21The applicant submits that the clinical notes and records (“CNRs”) from Physiomed Danforth, from January 5, 2022 to July 21, 2022, indicate that he suffered pain while lifting heavy items, along with tightness in his upper and lower back muscles, evidence that his spine conditions would preclude recovery from his accident-related injuries if he were kept within the confines of the MIG.
22The applicant submits, also, that he attended Midland Wellness Centre (“Midland”), from January 9, 2023 to April 28, 2023, for further physiotherapy treatment, where the intake questionnaire noted that he was experiencing low back pain that limits his daily activities. The applicant argues that this is further evidence that his pre-existing spine conditions warrant removal from the MIG.
23Lastly, the applicant submits that the assessment of Dr. Igor Wilderman, physiatrist and chronic pain specialist, in his report dated June 27, 2025, provides further evidence that the applicant’s injuries warrant removal from the MIG, because of his diagnoses of chronic pain and psychological impairments.
24The respondent submits that the applicant has not produced any pre-accident medical documentation, and therefore he has not satisfied part (1) of the test under s. 18(2). The respondent argues, citing Sikic v. CUMIS General Insurance Company, 2025 CanLII 99916 (ON LAT) (“Sikic”), that he is therefore precluded from being removed from the MIG based on a pre-accident impairment.
25The respondent submits, further, that the applicant did not see a family physician, from November 23, 2021 (when he visited Dr. Mehrdad Vakhila) to March 28, 2024 (when he visited Dr. Muhammad Hashmi), a period of about 28 months. The respondent argues that the lack of post-accident physician visits indicates that the applicant suffered strain injuries consistent with the definition of a minor injury.
26In his reply submissions, the applicant argues that, despite not having provided pre-accident medical records, the CNRs of Dr. Kundu and Dr. Speirs provide evidence of pre-existing spine conditions, including degenerative changes and a pre-accident L2 compression fracture. The applicant argues, citing Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”), that pre-existing conditions need not be documented prior to the accident when the nature of the condition is objectively verifiable.
27I find that Sikic is distinguishable from the present matter, because the applicant in Sikic provided medical imaging, conducted more than two years after the accident, as evidence of a pre-existing condition, and the adjudicator concluded that it did not satisfy part (1) of the test under s. 18(2). In the present matter, the applicant has provided contemporaneous reports of two medical practitioners who opine on the applicant’s pre-accident spine conditions.
28The Divisional Court’s decision in Scarlett directs me to consider whether the evidence is “compelling”, on a balance of probabilities, to satisfy part (1) of the test under s. 18(2). I note that the applicant’s Ontario Health Insurance Plan (“OHIP”) records, submitted as evidence by the applicant, identify no OHIP entries from three years pre-accident to the date of the accident. I note that the CNRs of Dr. Speirs identified the applicant’s degenerative disc disease as “mild” and that he did not indicate any concerns regarding the old L2 compression fracture.
29I find that, although s. 18(2) states that the medical condition must be “documented by a health practitioner before the accident”, the decision in Scarlett directs me to consider the consumer protection purpose of the Schedule and whether the evidence of a pre-existing condition is compelling. In this case, the applicant did not have any visits with a health practitioner, OHIP-funded or otherwise, in the three years before the accident, so he could not have his condition documented before the accident. I find that the CNRs of Dr. Kundu and Dr. Speirs are sufficiently compelling, identifying that the applicant had pre-existing medical conditions in his spine, satisfying part (1) of the test under s. 18(2). Therefore, I turn to whether the applicant meets part (2) of the test.
30I find that the applicant has not directed me to compelling evidence that his spine conditions preclude maximal recovery from his minor injuries if he is kept within the confines of the MIG. The applicant has not directed me to any notes from his family physician in the four years post-accident that he requires further treatment for his pre-existing degenerative spine conditions. Furthermore, I find that the lack of any physician visits for the 28-month period, from November 2021 to March 2024, persuades me that the applicant’s pre-existing spine conditions did not require medical intervention outside of the MIG.
31I find, also, that the intake form and CNRs of Midland do not provide me with any indication that the applicant’s pre-existing conditions warrant further treatment due to the accident. The applicant directed me to the diagnoses on the OCF-18 submitted by Midland, but the Tribunal has found consistently that OCF-18s are not reliable as medical evidence (see, for example Eli v. Definity Insurance Company, 2025 CanLII 31130 (ON LAT).
32Lastly, I find that the applicant has not directed me to any part of Dr. Wilderman’s report that states, specifically, that the applicant’s pre-existing degenerative spine conditions or the old L2 fracture are reasons for further treatment.
33For the reasons above, I find that the applicant has not satisfied part (2) of the test under s. 18(2), and therefore he has not demonstrated that his noted pre-existing spine conditions preclude maximal recovery from his accident-related injuries if he is kept within the MIG.
The applicant’s pain complaints do not remove him from the MIG
34The applicant submits that Dr. Wilderman diagnosed the applicant with chronic pain syndrome, chronic whiplash associated disorder (“WAD”) type 2 (moderate), mechanical lower back pain pattern 2, lumbago, bilateral sacroiliac joint dysfunction, depression, anxiety and post-traumatic stress disorder (“PTSD”), in his assessment report dated June 27, 2025. The applicant argues that these impairments have led to functional impairment, including disruption to his employment as a landscaper, as well as preventing him from doing housekeeping, home maintenance and recreational activities.
35The applicant submits that he was unable to work for six months post-accident, due to pain, and that when he returned to work, his ability to perform work-related activities was limited to light duties that did not require heavy lifting, bending or twisting his back. The applicant argues that his medically diagnosed chronic pain syndrome and documented functional impairment warrant removal from the MIG.
36The respondent submits that the applicant has not provided CNRs of his family physician from August 1, 2023 to June 2, 2025, as agreed in the CCRO. The respondent requests that I draw an adverse inference from the non-production of these CNRs, alleging that they would not assist the applicant’s position regarding his claims.
37The respondent relies on the IE reports of Dr. Khaled and Dr. Ratti, dated May 3, 2024, to argue that the applicant does not suffer from chronic pain with functional impairment warranting removal from the MIG. Dr. Khaled opined, after his in-person examination of the applicant and a review of the applicant’s medical records on March 27, 2024, that the applicant suffered a WAD grade 1 (minor) injury with associated shoulder stiffness. Dr. Khaled opined, further, that the applicant had a good prognosis for complete functional recovery.
38Dr. Ratti indicated that the applicant reported, on April 19, 2024, that he performed housekeeping tasks and denied any caregiving concerns. The applicant reported being independent with self-care and being generally normal with his social life and hobbies, and he reported working full-time in his normal position and normal duties. Dr. Ratti opined, based on his in-person assessment, document review and psychological test results, that the applicant did not meet any criteria for a mental health diagnosis.
39The respondent argues that Dr. Wilderman’s diagnosis of chronic pain syndrome is uncorroborated by the evidence of any other physician, and that the level of function reported by the applicant to the IE assessors does not support a conclusion of chronic pain with functional impairment warranting removal from the MIG.
40I find that the conclusions of Dr. Wilderman regarding chronic pain syndrome are uncorroborated by other records, such as CNRs of other health practitioners, prescription summaries or employment records. I draw an adverse inference regarding the non-production of the applicant’s family physician CNRs after August 1, 2023, because the applicant has not provided an explanation to the respondent’s submissions. I note, based on the OHIP summary submitted by the applicant, that the applicant visited Dr. Hashmi four times between March 28, 2024 and January 29, 2025. I conclude that the CNRs would not assist the applicant in his arguments.
41I accept that the applicant experienced functional impairment, regarding work and otherwise, in the months following the accident. However, I find that the level of function report to Dr. Wilderman, over 3.5 years post-accident, is inconsistent with the level of function reported to the IE assessors, and it is inconsistent with the lack of medical attention from any physicians, or any noted use of pain medication, between November 23, 2021 and March 28, 2024.
42For the reasons above, I find that the applicant has not demonstrated, on a balance of probabilities, that he suffered from chronic pain with functional impairment warranting removal from the MIG.
The applicant’s psychological impairments do not remove him from the MIG
43The applicant submits that Dr. Wilderman’s diagnosis of anxiety, depression and PTSD, as part of his chronic pain assessment, are evidence of accident-related psychological injuries warranting removal from the MIG. The applicant submits, further, that Dr. Ratti’s IE report stated that the applicant had symptoms of sadness, pessimism, feelings of failure and guilt, and reduced enjoyment, as corroboration of Dr. Wilderman’s psychological diagnoses.
44The respondent argues that Dr. Wilderman’s psychological diagnoses should be given little weight, as he qualified that the applicant’s psychological test results and his psychological opinion would best be “corroborated by a professional in the field, such as a psychologist or psychiatrist.” The respondent argues, further, that there are no corroborating reports or complaints of psychological issues from any psychologically qualified treatment providers.
45The respondent again relies on the IE report of Dr. Ratti, who opined that the applicant did not meet the criteria for any mental health diagnosis.
46I prefer the opinion of Dr. Ratti to the qualified opinion of Dr. Wilderman regarding the applicant’s psychological impairments, because it is consistent with the other evidence before me. I find that the applicant has not provided any corroborating evidence of psychological sequalae from the accident, such as reports to physicians or other healthcare providers, prescription summaries, or employment files.
47For the reasons above, I find that the applicant has not demonstrated, on a balance of probabilities, that he suffered psychological impairments as a result of the accident warranting removal from the MIG.
The applicant is not entitled to funding for the proposed OCF-18s
48I find that the applicant’s injuries, because of the accident, are “minor” as defined by the Schedule.
49Since I have determined that the applicant’s injuries are “minor” as defined by the Schedule, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary, and therefore not payable.
Award
50The applicant sought an award under s. 10 of Reg. 664. Under s. 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.
51Since I have found that no benefits are payable, I do not find that the respondent unreasonably withheld or delayed payment. As a result, an award under s. 10 of Reg. 664 is not warranted.
Interest
52As no benefits are owing, the applicant is not entitled to interest.
ORDER
53The applicant has not demonstrated that his injuries warrant removal from the MIG.
54Since the applicant’s injuries are considered minor, the proposed OCF-18s seeking services outside of the MIG are not payable.
55The applicant is not entitled to an award.
56The applicant is not entitled to interest.
Released: May 28, 2026
Bernard Trottier
Adjudicator