Licence Appeal Tribunal File Number: 25-001198/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:
Safiullah Rezaiy
Applicant
and
The Commonwell Mutual Insurance Group
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Clayton Allen, Counsel
For the Respondent:
Cecil Jaipaul, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Safiullah Rezaiy, the applicant, was involved in an automobile accident on May 21, 2024, 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, Insurer, 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 $2,486.00 for an attendant case benefits assessment, proposed by TE Rehabilitation Services in a treatment plan/OCF-18 (“plan”) submitted July 3, 2024?
iii. Is the applicant entitled to $200.00 ($1,300.00 less $1,100.00 approved) for chiropractic services, proposed by Newmarket Health & Wellness Centre Inc. in a plan submitted September 19, 2024?
iv. Is the applicant entitled to $3,930.74 for chiropractic services, massage therapy, physiotherapy services and devices, proposed by Newmarket Health & Wellness Centre Inc. in a plan submitted October 14, 2024?
v. Is the applicant entitled to $30.53 for prescriptions, submitted on a claim form (“OCF-6”) submitted January 15, 2025?
vi. Is the applicant entitled to $30.53 for prescriptions, submitted on an OCF-6 submitted December 2, 2024?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. 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, the applicant remains within the MIG.
Because the applicant is within the MIG, I do not need to assess the reasonableness and necessity of the disputed treatment plans.
The applicant is not entitled to interest or to an award.
PROCEDURAL ISSUES
4The Case Conference Report and Order (“CCRO”) dated June 10, 2025, limits the parties’ submissions to 10 pages and the applicant’s reply submissions to 5 pages. The CCRO further provides that all submissions, evidence, and authority briefs filed with the Tribunal must be double‑spaced, in 12‑point Arial or Times New Roman, with 1.5‑inch margins, and must be indexed, bookmarked or tabbed, and consecutively paragraph and page numbered. Submissions must also make specific reference to the evidence and authorities by tab and page number.
5The respondent submits that the applicant’s submissions fail to comply with the CCRO because they lack page numbers and do not properly reference the evidence. On this basis, the respondent requests that the Tribunal consider only pinpointed evidence. The respondent relies on Dooman v. TD Insurance Co., 2025 ONSC 184.
6In reply, the applicant submits that the respondent’s written submissions do not comply with the CCRO and should therefore be deemed inadmissible. In particular, the applicant notes that the submissions exceed the 10‑page limit by 1 page and appear to use margins of approximately 0.6 inches.
7The CCRO expressly provides that the hearing adjudicator retains discretion to decide whether to consider submissions that do not strictly comply with the Tribunal’s filing requirements.
8In exercising this discretion, I am guided by the principles of procedural fairness and proportionality. While both parties have identified technical deficiencies in each other’s materials, neither has demonstrated any material prejudice from the other’s non-compliance. The respondent’s concern is primarily with the organization and referencing of the applicant’s evidence, rather than any inability to understand or respond to the case being advanced. Similarly, the applicant has not shown that the modest excess in length or the respondent’s submissions’ deviation from margin requirements has impaired the applicant’s ability to respond.
9I also note that the respondent’s reliance on Dooman does not support its position in this case. While that decision underscores the importance of proper evidentiary referencing, the respondent’s concern here appears to relate to deficiencies in how certain materials were cited rather than to the absence or unavailability of the evidence itself. The record indicates that the underlying documents are identifiable and accessible, and the respondent has not demonstrated that any irregularities in their formatting or citation impeded its ability to understand, test, or respond to the case it had to meet. In these circumstances, I am not satisfied that the alleged deficiencies have caused prejudice. Dooman does not stand for the proposition that minor non-compliance with formatting requirements, in the absence of demonstrated prejudice, necessitates the exclusion of submissions. To the contrary, the Tribunal’s mandate to conduct proceedings in a just, expeditious, and cost‑effective manner weighs against adopting a rigid or overly technical approach to such deficiencies.
10Accordingly, I find it appropriate to exercise my discretion and admit and consider both parties’ submissions in full, notwithstanding the identified departures from the CCRO.
ANALYSIS
Are the applicant’s injuries predominantly minor?
11I find that the applicant has not established that his injuries 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 ought to be removed from the MIG on the basis of an exacerbation of a pre-existing back condition and the development of chronic pain that impairs his recovery.
Pre-existing Condition
15I find that the applicant has not met the test for removal from the MIG due to a pre-existing condition.
16The applicant submits that the clinical notes and records (“CNRs”) of Dr. Aleem Hussain, his family doctor, demonstrate that he sustained an exacerbation of pre-existing back pain due to the accident, which has prevented his maximal recovery within the MIG. He relies on his ongoing pain complaints and on the opinions of Dr. Hussain and Dr. Tonya Ballard, the s. 44 physiatrist, both of whom recommended additional treatment, despite the MIG limits being nearly exhausted.
17The respondent submits that the applicant has failed to address the second branch of the test for removal based on a pre-existing condition, namely, the requirement to provide compelling medical evidence that the pre-existing condition would prevent maximal recovery within the MIG. The respondent relies on Superintendent’s Guideline No. 01/14 (the “Guideline”).
18I find that the applicant has established a pre-existing back condition. The applicant’s CNRs from his family physician, Dr. Hussain, document a history of ongoing back pain both before and after the accident. On August 11, 2022, the applicant reported persistent back pain, prompting referrals to physiotherapy, chiropractic care, pain management, and psychological services. On September 12, 2022, the applicant again reported ongoing back pain, and Dr. Hussain noted that the applicant would be referred to a pain clinic for consideration of injections. Similarly, on December 5, 2022, the applicant continued to report back pain, and he was prescribed Diclofenac. These records demonstrate that the applicant’s back symptoms were persistent and required ongoing medical management.
19In addition, a referral prepared by Dr. Hussain for a physiatry consultation on June 25, 2024, expressly states that the applicant had been experiencing back pain for approximately three years. This contemporaneous documentation supports the existence of a pre-existing low back condition that predates the accident and is not limited to acute or transient symptoms.
20The diagnostic imaging further supports the presence of degenerative changes in the applicant’s lumbar spine. An MRI dated June 23, 2024, shows mild multilevel degenerative changes, including disc bulges, mild neuroforaminal narrowing at several levels, and mild disc height loss between L2 and L4. Importantly, the imaging does not identify any acute structural abnormalities, significant spinal canal stenosis, or traumatic lesions indicative of an acute injury. Rather, the findings are consistent with degenerative disc disease and chronic spinal changes.
21The consultation report from the Scarborough Pain Clinic, dated August 18, 2022, provides additional context regarding the applicant’s condition. At that time, the applicant’s primary complaints were neck pain, left shoulder pain, and back pain. Dr. Julian Chen diagnosed the applicant with a whiplash-associated disorder of the cervical spine and back pain attributable to a sprain injury with facetogenic and degenerative components. This mixed diagnosis indicates that, while the accident may have contributed to soft tissue injury, the applicant’s back pain was also associated with underlying degenerative pathology.
22Considering the totality of the medical evidence, I accept that the applicant has experienced ongoing back pain since at least the time of the accident and, based on the referral history and imaging findings, likely for a period predating the accident.
23However, while the applicant has demonstrated the existence of a pre-existing condition, he has not directed me to compelling medical evidence addressing the second part of the test. In particular, there is no compelling opinion from a qualified health practitioner stating that the pre-existing condition, in combination with the accident-related impairments, would prevent the applicant from achieving maximal recovery within the MIG. In my view, general recommendations for continued treatment or references to ongoing pain are insufficient to meet the evidentiary threshold in s. 18(2). The Schedule requires compelling evidence that links the pre-existing condition to an inability to recover under the MIG framework. Such evidence is absent in this case.
24Accordingly, on a balance of probabilities, I find that the applicant has not established that he should be removed from the MIG on the basis of a pre-existing condition.
Chronic Pain
25I find that the applicant has not established that he suffers from accident-related chronic pain with a functional impairment that would warrant removal from the MIG.
26The applicant submits that he experiences ongoing pain that affects his recovery and functioning, including severe back pain, reduced range of motion, and difficulty performing activities of daily living. He submits that this constitutes chronic pain arising from the accident.
27The respondent submits that a diagnosis of chronic pain, in and of itself, is insufficient to remove an applicant from the MIG. Rather, persuasive medical evidence must demonstrate that the accident-related pain condition results in functional impairment.
28The applicant’s post-accident complaints of back pain, as recorded in CNRs from May 2022 to May 2024, are inconsistent with respect to both severity and causation. On May 30, 2024, nine days after the accident, the applicant attended his family physician, Dr. Hussain, and reported intermittent right-sided back pain near the kidney area, with a pain severity of 2 out of 10. The pain was noted to occur mainly during sleep, and there was no reference to the recent motor vehicle accident or any indication that the symptoms were accident-related. The visit reflects a relatively mild presentation and lacks any contemporaneous attribution of the symptoms to the accident.
29On June 11, 2024, the applicant again sought medical attention for lower back pain, which he described as radiating across the lower back. The clinical note from this visit records that, although the applicant had been involved in a minor car accident prior to the back pain, he expressly denied any relationship between that accident and the onset of his symptoms. I find that this is of significance and undermines the applicant’s argument that he has accident-related chronic back pain. Dr. Hussain further documented that the pain had begun approximately two weeks earlier and had worsened following a separate “punch-like” event. As this was some nine months after the accident, this evidence undermines a causal connection between the applicant’s reported symptoms and the accident and suggests an intervening or alternative cause.
30On June 17, 2024, the applicant reported a marked escalation in his symptoms to Dr. Hussain, describing severe back pain rated 10 out of 10. The clinical notes of Dr. Hussain at this visit referenced a motor vehicle accident that had occurred approximately three weeks earlier. However, Dr. Hussain noted that no immediate symptoms were reported after the accident and characterized the cause of the pain as “uncertain,” with only a possible relation to the prior accident. The absence of immediate post-accident complaints and the speculative nature of Dr. Hussain’s comment weaken the evidentiary value of this record in establishing a clear causal link.
31The lack of consistent attribution to the accident persists in subsequent assessments. In the chronic pain evaluation dated June 19, 2025, conducted by Dr. Biruk Habteselassie, a physician, at the York Medical Chronic Pain Clinic, the applicant was diagnosed with chronic low back pain, likely attributable to mechanical factors, degenerative disc disease, lumbar facet joint irritation, sacroiliac joint dysfunction, and myofascial pain syndrome, as well as chronic right shoulder pain. Notably, this report does not link the applicant’s condition to the accident, nor does it identify an accident-related etiology for the chronic pain complaints. Instead, the diagnoses are framed in terms of degenerative and mechanical processes.
32Similarly, the insurer’s examination report, prepared by Dr. Tonya Ballard, a physiatrist, diagnosed thoracic and lumbar spine strain/sprain with facet-mediated pain but emphasized the lack of objective evidence of radiculopathy. Importantly, Dr. Ballard questioned the causal link between the applicant’s ongoing low back pain and the accident, noting both the apparent absence of vehicle damage and the content of the clinical records. Her opinion reflects uncertainty about accident causation and does not support a clear finding that the applicant’s ongoing symptoms are attributable to the motor vehicle accident.
33In assessing this evidence, I find that the applicant has not established, on a balance of probabilities, that his alleged chronic pain was caused by the accident. As set out in Sabadash v. State Farm et al., 2019 ONSC 1121, the appropriate test for causation is the “but for” test, which requires the applicant to demonstrate that, but for the motor vehicle accident, the impairment would not have occurred. This requires cogent, persuasive, and well-reasoned medical evidence establishing both a diagnosis of chronic pain and a causal connection to the accident, along with resulting functional impairment. In this case, the medical evidence does not consistently support such a connection. The CNRs reflect fluctuating reports of pain, at times unconnected to the accident, and, in certain instances, the applicant expressly denied any relationship between his symptoms and the accident. Further, the medical opinions in evidence frequently attribute the applicant’s condition to degenerative or mechanical causes, or otherwise describe the etiology as uncertain. In the absence of a clear and consistent medical opinion establishing that, but for the accident, the applicant would not be experiencing the alleged chronic pain and associated functional limitations, I find that the applicant has not discharged his burden of proof.
34As I have found that the applicant has not established accident-related chronic pain, it is not necessary for me to consider whether he has met the second part of the test. Namely, functional impairment related to accident-related chronic pain.
35Accordingly, on a balance of probabilities, I find that the applicant has not established entitlement to removal from the MIG on the basis of chronic pain with a functional impairment.
Conclusion on MIG
36For these reasons, on a balance of probabilities, I find that the applicant’s impairments are predominantly minor and fall within the MIG.
Is the applicant entitled to the disputed treatment and assessment plans?
37Because the applicant’s injuries fall within the MIG, the available medical and rehabilitation benefits are subject to the MIG limit of $3,500.00. Given that the applicant is subject to the MIG, it is unnecessary to assess the reasonableness and necessity of the disputed treatment and assessment plans.
Interest
38Interest applies to the payment of any overdue benefits pursuant to the s. 51 of the Schedule. As no further benefits are payable, the applicant is not entitled to interest.
Award
39The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
40The applicant submits that the respondent unreasonably withheld or delayed payment of benefits.
41The respondent submits that the applicant has presented no evidence to support this allegation.
42I agree with the respondent. The applicant’s submissions on the issue of an award are brief and unsupported by evidence. There is no argument identifying specific conduct by the respondent that would constitute unreasonable delay or withholding of benefits. In the absence of such evidence, there is no basis to exercise the Tribunal’s discretion to grant an award.
43Accordingly, I find that the applicant is not entitled to an award.
ORDER
44For the above reasons, it is ordered that:
i. The applicant’s injuries are predominantly minor; therefore, the applicant remains within the MIG.
ii. Because the applicant is within the MIG, I do not need to assess the reasonableness and necessity of the disputed treatment plans.
iii. The applicant is not entitled to interest or to an award.
iv. The application is dismissed.
Released: June 5, 2026
Harouna Saley Sidibé
Adjudicator