Citation: Wasit v. Wawanesa Mutual Insurance Company, 2026 ONLAT 25-002097/AABS

Licence Appeal Tribunal File Number: 25-002097/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:

Muhammad Wasit

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Applicant:

Jackie Cao, Paralegal

For the Respondent:

Elizabeth Scott, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Muhammad Wasit, the applicant, was involved in an automobile accident on May 27, 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 Wawanesa Mutual 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:

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 $1,252.51 for chiropractic services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“OCF-18”) dated January 23, 2023?

3. Is the applicant entitled to $4,028.94 for chiropractic services, proposed by Complete Rehab Centre in an OCF-18 dated November 6, 2024?

4. Is the applicant entitled to $15,322.73 for a multidisciplinary chronic pain treatment program, proposed by Complete Rehab Centre in an OCF-18 dated April 27, 2023?

5. Is the applicant entitled to $2,629.50 for an orthopaedic assessment, proposed by Mississauga Rehab and Sports Injury Clinic in an OCF-18 dated March 27, 2023?

6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

7. 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.

5The applicant is not entitled to an award.

6The applicant is not entitled to interest.

PROCEDURAL ISSUE

7The applicant submits that the respondent did not produce the adjusters’ log notes (redacted for privilege and reserves), as agreed upon in the Case Conference Report and Order dated June 10, 2025 (the “CCRO”). The applicant argues that the log notes are vital to request copies of claim-related correspondence that it does not possess, and to prepare submissions regarding an award under s. 10 of Reg. 664. The applicant requests that the Tribunal draw an adverse inference from this non-compliance with the CCRO.

8The respondent submits that it had intended to provide the redacted log notes to the applicant, but that it failed to do so due to inadvertence. It submits it provided all other requested productions, including the complete accident benefits file, to the applicant. The respondent argues that, for the Tribunal draw an adverse inference, the applicant would need to provide evidence that he has been prejudiced by the non-production of the log notes.

9I find that the applicant has not directed me to any evidence that he is missing any claim-related correspondence, which would have been produced in the accident benefits file. I reserve any finding on non-compliance of the log notes, and any adverse inference, pending my analysis of an award under s. 10 of Reg. 664.

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. In their submissions, the parties agree that the MIG limit has been exhausted.

13The parties dispute whether the applicant’s injuries warrant removal from the MIG based on the following factors:

1. Whether the applicant suffered a concussion, which would be considered a non-minor injury as defined under s. 3(1) of the Schedule;

2. Whether he suffered a chronic pain condition with functional impairment; and

3. 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 did not suffer a concussion warranting removal from the MIG

15The applicant submits that the Disability Certificate/OCF-3, dated May 31, 2022, completed by Dr. Rahim Jessa, chiropractor with Complete Rehab Centre (“Complete Rehab”), identifies that the applicant suffered a possible concussion, including symptoms of headaches and insomnia. The applicant submits, further, that the disputed OCF-18 for chiropractic services, dated January 3, 2023 (issue 2), also completed by Dr. Jessa, continued to identify a possible concussion.

16The applicant directed me to the Complete Rehab intake form of May 31, 2022, where the applicant reported headache, nausea, and balance issues, and he reported “blackout after getting up from lying position.” The applicant submits that the clinical notes and records (“CNRs”) of Compete Rehab continued to report neurocognitive impairments, from June 2, 2022 to June 6, 2025.

17The applicant submits that the orthopaedic/chronic pain assessment dated April 7, 2023, completed by Dr. Darrell J. Ogilvie-Harris, orthopaedic surgeon with Mississauga Rehabilitation and Sport Injury Clinic (“Mississauga Rehab”), identified that the applicant suffered from dizziness and may have had a concussion from the accident that required further assessment. The applicant submits, further, that the disputed OCF-18 for a multidisciplinary chronic pain treatment program dated April 27, 2024, based on Dr. Ogilvie-Harris’s report, continued to identify headaches and insomnia, and identified further sequalae of post-concussion syndrome and peripheral vertigo.

18The applicant submits, further, that the CNRs of Pujari Premala, physiotherapist with Mississauga Rehab, from April 27, 2023 to July 11, 2023, corroborate the applicant’s neurocognitive injuries, with documented symptoms of headaches, sleep disturbance, vertigo and dizziness.

19Lastly, the applicant submits that the applicant’s family physician, Dr. Mumtaz Alam, diagnosed ongoing concussion symptoms, including vertigo, in his report dated June 24, 2024.

20The respondent submits that, at the time of the accident, the applicant was 73 years old, with a pre-accident history of diabetes, hypertension, headaches and vertigo. The respondent directed me the CNRs of the urgent care clinic at the Brampton Civic Hospital, dated November 30, 2021 (about 6 months pre-accident), where the applicant was seen for headaches and dizziness, and which the triage nurse attributed to diabetes and hypertension. On December 1, 2021, the applicant underwent an MRI and CT scan to his head, which showed mild generalized cerebral atrophy and no acute intracranial abnormality. The respondent argues that the applicant’s headaches and vertigo symptoms are not caused by the accident, and that there is no physician diagnosis of a concussion due to the accident.

21The respondent submits that the applicant’s OHIP summary indicates that he did not attend a hospital immediately after the accident. The respondent directed me to an MRI report of the applicant’s head, from imaging undertaken on November 21, 2022 (about six months post-accident), which showed no evidence of vestibular schwannoma (tumors).

22The respondent relies on the insurer’s examination (“IE”) report of Dr. Verity John, neurologist, dated May 5, 2023, where she opines that the applicant did not suffer a concussion from the accident, as an increase in vertigo would have developed immediately. Dr. John noted, also, that the applicant’s physician CNRs indicated a history of dizziness and balance issues dating back to 2016, and that he was diagnosed with benign vertigo on May 20, 2022 (7 days pre-accident). She opined, further, that the applicant’s headaches were tension-type headaches, likely related to poor sleep and some neck pain. She opined that she could not link the applicant’s vertigo to the accident, and she did not believe his vertigo was aggravated by the accident.

23The respondent submits, further, that Dr. Alam’s report of July 24, 2024, indicates he was not able to comment as to whether the applicant’s vertigo/dizziness was caused by the accident, as his symptoms predated the accident.

24I find that the balance of evidence before me indicates that the applicant did not suffer a concussion because of the accident. I assign little weight to the differential diagnosis of Dr. Jessa, because his diagnosis stays within his professional limits as a chiropractor, and he states that the applicant suffered only a possible concussion. Similarly, I assign little weight to the CNRs of the physical therapists at Complete Rehab and Mississauga Rehab, who are not qualified to diagnose a concussion in Ontario. I find that Dr. Ogilvie-Harris, though a qualified physician, provided only a differential diagnosis of a possible concussion, based on the applicant’s self-reported dizziness symptoms.

25The evidence before me indicates that the applicant’s dizziness/vertigo symptoms pre-dated the accident. I assign more weight to the diagnosis of Dr. John, who examined the applicant’s medical history and imaging from a neurological perspective, and concluded that the applicant did not suffer a concussion from the accident. Of the professional opinions related to the applicant’s possible concussion, I prefer that of Dr. John over that of Dr. Ogilvie-Harris, because Dr. John’s opinion is more consistent with the applicant’s pre- and post-accident records in arriving at her conclusion.

26For the reasons above, I find that the applicant did not suffer a concussion warranting removal from the MIG.

The applicant’s chronic pain complaints do not remove him from the MIG

27The applicant submits that Dr. Ogilvie-Harris diagnosed the applicant with chronic pain syndrome, in his report dated April 7, 2023, based on the applicant having met criteria (2) to (6) of the American Medical Association Guides, 6th Edition (the “AMA Guides”) criteria for diagnosing chronic pain. The AMA 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 physical activity due to pain.

4. Withdrawal from social milieu, including work, recreation, or other social contacts.

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.

6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

28While I am not bound by the AMA Guides, I note that the Tribunal has found them to be helpful to determine whether chronic pain is medically valid. At the same time, they are not the only criteria used by the Tribunal (see, for example A. A. v. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT).

29I note that Dr. Ogilvie-Harris relied on the November 5, 2022 psychological report of Nicole Presutti, psychotherapist, under the supervision of Dr. Jacqueline Brunshaw, both of Complete Rehab, for input on the psychosocial aspects of his chronic pain assessment. For brevity, I will refer to this report as that of Dr. Brunshaw. In her report, Dr. Brunshaw diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood.

30The applicant submits that the IE report of Dr. C.B. Paitich, orthopaedic surgeon, dated May 8, 2023, regarding the applicant’s chronic pain complaints, should be given little weight because Dr. Paitich is not qualified specifically for diagnosing or treating chronic pain, and he did not assess the applicant using the criteria in the AMA Guides. The applicant argues, citing Nguyen v. Travelers Insurance, 2023 CanLII 107277 (ON LAT) (“Nguyen”), that the Tribunal should prefer the opinion of a qualified expert in chronic pain over that of a non-expert.

31The applicant submits, further, that the chronic pain diagnosis is supported by the CNRs of Complete Rehab and Mississauga Rehab, from the date of the accident to July 11, 2023, where the applicant reported pain in his neck, left shoulder, back and knees.

32The respondent argues that the applicant suffered sprains and strains which fall squarely within the MIG. The respondent submits that, on July 18, 2022 (about two months post-accident), the applicant’s physician at Howden Medical Clinic, Dr. Vishal Thakur, referred the applicant for imaging of his left shoulder to investigate a possible rotator cuff injury. The x-ray dated December 2, 2022, and the ultrasound dated December 9, 2022, indicated no abnormality and no rotator cuff tendon tear.

33The respondent submits that the applicant did not complain of further left shoulder pain or symptoms attributable to the accident until July 14, 2023, more than 13 months post-accident, in his visit with Dr. Alam.

34The respondent submits that the applicant’s main post-accident complaints were unrelated to the accident, as evidenced by the CNRs of Elite Cardiology and Imaging Associates, from June 4, 2022 to August 25, 2022. The applicant had a stent implanted in his heart on August 10, 2022. The applicant also had his gallbladder removed at Brampton Civic Hospital on September 18, 2023.

35The respondent relies on two IE reports of Dr. Paitich, dated May 8, 2023 and December 27, 2024, to argue that Dr. Ogilvie-Harris does not provide objective evidence of centralized sensitization in the applicant, which he opines is an indicator for a chronic pain diagnosis. Dr. Paitich opined, at the time of his examinations, that the applicant did not have any impairment leading to any limitations. Dr. Paitich opined, further, that it was highly unlikely that the applicant’s pain complaints, at that point in his recovery, were causally related to the accident, and that any complaints are due to degenerative changes that affect the majority of individuals who develop axial skeletal pain with advancing age.

36The respondent argues that Dr. Ogilvie-Harris’s chronic pain diagnosis is contradicted by that of Dr. Paitich. The respondent argues, further, and that Dr. Ogilvie-Harris’s findings are uncorroborated by the CNRs of the applicant’s treating physicians. For these reasons, the respondent argues that Dr. Ogilvie-Harris’s chronic pain diagnosis should be given little weight.

37I find that the Nguyen is distinguishable from the present matter, in that in Nguyen, the adjudicator was weighing the opinion of an orthopaedic surgeon/chronic pain specialist and that of a general practitioner, and he assigned more weight to the opinion of the orthopaedic surgeon with specialization in chronic pain diagnoses. As noted in the commentary of Dr. Ogilvie-Harris’s report, orthopaedic surgeons are uniquely positioned to diagnose chronic pain associated with musculoskeletal conditions. In the present matter, the two expert opinions before me are both those of orthopaedic surgeons duly qualified as experts. For this reason, I assign no changes to the weight of the two opinions based on their qualifications.

38I assign little weight to the CNRs of the physical therapists at Complete Rehab and Mississauga Rehab, because they are not qualified to diagnose chronic pain or chronic pain syndrome.

39In examining the CNRs of Dr. Thakur and Dr. Alam, from July 18, 2022 to July 24, 2024, I find there is little reference to pain sequelae beyond that in the left shoulder. I am persuaded by the balance of the medical opinions before me that the applicant’s left shoulder injury was a minor injury that would not lead to a chronic pain condition.

40I find that the applicant has not directed me to CNRs of any physicians corroborating Dr. Ogilvie-Harris’s opinion, that the applicant was experiencing the severe, constant pain that would lead to a diagnosis of chronic pain under criteria (2) and (3) of the AMA Guides.

41Regarding the applicant’s social withdrawal, loss of function and psychosocial conditions after the accident, I am persuaded by Dr. Paitich’s opinion that these conditions, if any, are predominantly unrelated to the accident, and more related to the applicant’s other health problems, including his diabetes, hypertension, pre-existing vertigo, stent implant and gall bladder surgery. For these reasons, I find that the psychosocial findings related to criteria (4), (5) and (6) are more likely unrelated to the accident.

42The onus lies with the applicant to demonstrate that his reported chronic pain with functional impairment, due to the accident, warrants removal from the MIG. I find that, on a balance of probabilities, the evidence before me does not meet that threshold. I find that, although he did not rely on the AMA Guides to formulate his opinion, Dr. Paitich’s assessment is more consistent with the balance of the medical records before me.

43For the reasons above, I find that the applicant’s chronic pain complaints do not warrant removal from the MIG.

The applicant’s psychological impairments do not warrant removal from the MIG

44The applicant submits that the respondent’s application of the MIG has prevented him from receiving psychological counselling, and it has led him to rely on prolonged use a prescribed psychotropic medication, Mirtazapine, to control his anxiety and depression. The applicant directed me the psychological assessment report of Dr. Brunshaw, dated November 5, 2022, where he argues that his adjustment disorder with mixed anxiety and depressed mood are diagnosed psychological conditions warranting removal from the MIG.

45The applicant submits that an OCF-18 for a psychological assessment and another OCF-18 for psychological counselling were submitted to the respondent, but they were denied by the respondent on August 22, 2022 and December 8, 2022, respectively. The applicant argues that the respondent did not refer these OCF-18s to an IE assessor, therefore they remain unchallenged and should be approved.

46The applicant submits that the CNRs of the applicant’s physical therapists at Complete Rehab and Mississauga Rehab confirm the applicant’s reports of psychological and neurocognitive impairments.

47The respondent relies on the opinion of Dr. Tatiana Dumitrascu, psychologist, who conducted an IE of the applicant and provided a report dated April 17, 2023. In her report, Dr. Dumitrascu opined that the applicant’s psychological testing was within normal limits, and he did not report any anxiety, depression or post-traumatic stress. Dr. Dumitrascu opined that the applicant did not sustain any diagnosable psychological impairments as a result of the accident. The respondent argues, citing Hayles v. Certas Home and Auto Insurance Company, 2023 CanLII 84366 (ON LAT) (“Hayles”), that a psychological assessment report, by itself, in unpersuasive when it is unsupported by physician CNRs or other evidence that the reported psychological impairments affect overall function.

48The OCF-18s for a psychological assessment and psychological services, mentioned by the applicant in his submissions, were not listed as disputed issues in the CCRO. Therefore, they are not properly before me as disputed issues, and I make no finding on these OCF-18s.

49While I am not bound by the decision in Hayles, it is instructive in that, when presented with conflicting psychological reports, the Tribunal must often look to outside evidence to determine whether, on a balance of probabilities, one opinion is more valid than the other. The applicant argues that, in this case, his prolonged use of Mirtazapine for his anxiety and depression should be the determining factor. I disagree. I find that the applicant has not directed me to any of his extensive physician CNRs or hospital records that note the psychological symptoms identified by Dr. Brunshaw. I note that the applicant has not directed me, specifically, to the physician CNRs that led to the Mirtazapine prescription, and the reasons it was prescribed.

50In assessing the two psychological assessment reports before me, I prefer that of Dr. Dumitrascu, because it is consistent with the physician and hospital records. I find, as well, that Dr. Dumitrascu examined other changes in the applicant’s life besides the accident, which are many, while Dr. Brunshaw appeared to focus solely on the accident.

51For the reasons above, I find that, on a balance of probabilities, the applicant’s psychological impairments do not warrant removal from the MIG.

The proposed treatment plans are not reasonable and necessary

52I find that the applicant’s impairments, as a result of the accident, do not warrant removal from the MIG. The parties agree that the MIG limit has been exhausted. Accordingly, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required, and the applicant is not entitled to funding for the OCF-18s in dispute.

Award

53The 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.

54Since I have found that no benefits are payable, I do not find that the respondent unreasonably withheld or delayed payment. I find that the respondent’s non-production of adjusters’ log notes, which the respondent claims was due to inadvertence, is not relevant for my analysis of an award claim.

55As a result, an award under s. 10 of Reg. 664 is not warranted.

Interest

56As no benefits are owing, the applicant is not entitled to interest.

ORDER

57The applicant has not demonstrated that his injuries warrant removal from the MIG.

58Since the applicant’s injuries are considered minor, the proposed OCF-18s seeking services outside of the MIG are not payable.

59The applicant is not entitled to an award.

60The applicant is not entitled to interest.