Citation: Ahmadzai v. Aviva Insurance Company of Canada, 2026 ONLAT 25-001291/AABS

Licence Appeal Tribunal File Number: 25-001291/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:

Wagma Ahmadzai

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR:

Henry Harris

APPEARANCES:

For the Applicant:

Yanira Monterroza, Paralegal

For the Respondent:

Tefiney E Scarlett, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Wagma Ahmadzai (the “applicant”) was involved in an automobile accident on February 4, 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 Aviva Insurance Company of Canada (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:

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 a non-earner benefit (“NEB”) of $185.00 per week from March 4, 2023 to February 1, 2025?

iii. Is the applicant entitled to services proposed by Integral Health Group in a treatment plan/OCF-18 (“plan”) as follows:

a. $1,282.92 ($3,168.17 less $1,885.25 approved) for chiropractic services, in a treatment plan submitted February 15, 2023;

b. $2,686.00 for a psychological assessment, in a plan submitted April 14, 2023;

c. $3,384.07 for chiropractic services, in a plan submitted June 1, 2023; and

d. $2,633.50 for occupational therapy services (assessment of attendant care needs), in a plan submitted April 18, 2023?

iv. Is the applicant entitled to $1,197.00 for physiotherapy services, proposed by Van Rehab Physiotherapy in a plan submitted May 25, 2024?

v. Is the applicant entitled to interest on any overdue payment of benefits?

3For issue (ii) above regarding NEB, the case conference report and order dated May 7, 2025 (the “CCRO”) indicates the period in dispute as May 4, 2023 to February 4, 2025. However, the parties have indicated in their respective submissions that the commencement date for the NEB should be March 4, 2023. I find the correct period under s. 12(3) of the Schedule to be March 4, 2023 to February 1, 2025 as set out above, representing the period commencing four weeks post-accident and ending 104 weeks post-accident.

4For issue (iii)(a) above, the CCRO indicates the amount in dispute as $29.97 ($3,168.17 less $3,138.20 approved). However, the parties have indicated in their respective submissions that the correct amounts in dispute and approved are as set out above.

RESULT

5The applicant remains subject to the MIG.

6As the applicant remains in the MIG, there is no need to consider if any of the plans in dispute are reasonable and necessary.

7The applicant is not entitled to an NEB of $185.00 per week from March 4, 2023 to February 1, 2025 or interest.

8The application is dismissed.

ANALYSIS

The applicant remains within the Minor Injury Guideline (MIG)

9I find that the applicant has not established on a balance of probabilities that she suffers from an accident-related injury or condition that warrants removal from the MIG.

10Section 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.”

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 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.

12In all cases, the burden of proof lies with the applicant.

Pre-existing conditions

13I find that the applicant has not proven on a balance of probabilities that she should be removed from the MIG based on a pre-existing condition.

14The applicant submits that she should be removed from the MIG because she suffered from pre-existing spinal issues that were worsened by the accident, and warrants her removal from and treatment beyond the MIG limit.

15In support of her position, she relies on the clinical notes and records (“CNRs”) of her family doctor, Dr. Shilpa Sethi, and an x-ray report dated November 27, 2024, which shows mild facet OA (osteoarthritis) of two lumbar segments.

16The respondent counters that the applicant has not met her evidentiary burden that she has a pre-existing condition that prevents her from achieving maximal recovery if subject to the MIG.

17I find that the applicant has not established that she has a pre-existing condition that precludes recovery if she is kept within the confines of the MIG. The imaging that the applicant relies on was done nearly 22 months after the accident. The report indicates mild osteoarthritis that is limited to two lumbar segments, and otherwise shows no significant findings in the lumbar spine or sacroiliac joints.

18I was not directed to any medical records that address pre-accident osteoarthritis or otherwise establish that this is a pre-existing condition. Further, there is nothing in the CNRs of Dr. Sethi that show this is a condition that was being treated pre-accident, nor do Dr. Sethi’s CNRs address the results of the imaging. As the imaging was nearly two years post-accident and there is no evidence of any pre-accident mild osteoarthritis, I find the evidence does not establish that this is a pre-existing condition.

19Even if it was established that this is a pre-existing condition, I find the applicant has not met the second part of the test under s.18(2) of the Schedule. As set out above, there must be compelling medical evidence that the pre-existing condition would preclude recovery from the accident-related minor injury if the applicant were subject to the MIG. I find that the applicant have not led any evidence to establish this. The imaging report does not make any reference to how the mild osteoarthritis would affect recovery within the confines of the MIG.

20Accordingly, I find that the applicant has not established on a balance of probabilities that she has a pre-existing condition that would prevent her from achieving maximal medical recovery if she were kept within the MIG.

Psychological condition

21I find that the applicant has not proven on a balance of probabilities that she has a psychological condition due to the accident that warrants removal from the MIG.

22In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. Psychological impairment is not included in the minor injury definition. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”

23The applicant submits that she has sustained psychological impairments as a direct result of the accident and, as such, should be removed from the MIG. She relies on the CNRs of Dr. Sethi, and argues that her anxiety, sleep disturbances and fear inside a vehicle do not fall within the definition of minor injury in the Schedule.

24The respondent counters that the applicant has not discharged her onus to prove her injuries are outside of the MIG. The respondent argues that the psychological symptoms (anxiety, nightmares, fear of vehicles) are self-reported and are not supported by a complete psychological assessment.

25The applicant cites two Tribunal decisions that she is relying on, both of which found that psychological impairments caused by an accident were a basis for removal from the MIG. I agree with the applicant that the case she cites, Carrascal v Allstate Insurance Company of Canada, 2025 CanLII 23470 (ON LAT), correctly identifies that a psychological condition may warrant removal from the MIG, as I have outlined above. While the applicant did not direct me to anything specific in those decisions, I note that in both matters the Tribunal had psychological assessments to consider. This is in contrast with this matter, where there are no assessments and the applicant relies on the family doctor’s CNRs.

26In the applicant’s other cited decision, 16-002047 v RBC Insurance Company, 2017 CanLII 81606 (ON LAT), Adjudicator Johal agreed with the respondent’s submission that the mere mention of psychological injuries does not automatically mean the applicant is outside of the MIG. I find that this statement is equally applicable to the present matter.

27The applicant initially contacted Dr. Sethi on February 7, 2023, three days after the accident. There were no psychological concerns noted at that time, and Dr. Sethi assessed the applicant with a whiplash injury. In a subsequent consultation on February 9, 2023, in addition to soft tissue injuries, the CNRs indicate that the applicant feels restless, anxious and sleep disturbed.

28The applicant also directs me to Dr. Sethi’s CNRs dated April 17, April 24 and May 25, 2023. Those CNRs report certain physical pain, such as in her back and knees, as well as loss of sleep (April 17), anxious when sitting in a car and feels unwell, not driving, references physio, meds, psychologist (April 24) and sometimes feels unable to pay attention (May 25).

29I find that these references to Dr. Sethi’s CNRs that the applicant relies on do not satisfy her onus for the following reasons. Firstly, the references are to the applicant’s reported complaints and do not represent a medical determination by Dr. Sethi. It is unclear to what extent the complaints are psychological conditions as opposed to post-accident sequelae. Secondly, on a related point, some of the complaints appear to have been resolved. For example, the applicant reports on April 17, 2023 a loss of sleep, but a week later on April 24, 2023, the CNRs note that sleep is “OK”. Similarly, on May 25, 2023, Dr. Sethi notes “proper sleep, hydration”. Finally, the applicant has not identified any further psychological complaints reported to Dr. Sethi beyond the three complaints in the three months following the accident.

30As well, I have reviewed the applicant’s reply submissions, however, I am not persuaded by the applicant’s submission that the OCF-18 dated April 14, 2023 proposed by Integral Health Group supports that she has psychological injuries caused by the accident. In reviewing that OCF-18, the Additional Comments section contains a pre-screen report, that refers to an initial interview conducted on April 13, 2023. I give no weight to such report as it is based on the applicant’s reported complaints and only recommends conducting a psychological assessment as opposed to offering any medical opinion. Further, I note that the report was not referenced or relied upon by the applicant prior to her reply submissions.

31For these reasons, I find that the applicant has not proven on a balance of probabilities that she has a psychological condition due to the accident that warrants removal from the MIG. Therefore, I find that the applicant remains subject to the MIG.

32As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.

The applicant is not entitled to an NEB

33I find the applicant has not established entitlement to an NEB in the amount of $185.00 per week from March 4, 2023 to February 1, 2025.

34Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre- and post-accident activities.

35The applicant submits that she has a complete inability to carry on a normal life as a result of the accident because of her physical and psychological impairments. She relies on the OCF-3 Disability Certificate, completed by Dr. Harjot Grewal, chiropractor, dated February 15, 2023 (the “OCF-3”), the Aviva Non-Earner Benefits Questionnaire dated March 29, 2023 (the “NEB Questionnaire”) and an OCF-18 for physiotherapy services dated May 25, 2024.

36The respondent counters that the applicant has not met her onus of proving entitled to an NEB, as she has not provided objective evidence to support that she suffers a complete inability to carry on a normal life due to ongoing impairments as a result of the accident.

37I find that the applicant has not proven on a balance of probabilities that she suffers from a complete inability to carry on a normal life, for the following reasons.

38The applicant has not directed me to any corroborating medical opinion or evidence confirming a complete inability to carry on a normal life. Although she submits an OCF-3 prepared a couple weeks after the accident by Dr. Grewal, chiropractor, which indicates such an inability, it is not determinative on its own. The OCF-3 is a form used to apply for benefits and does not constitute a comprehensive assessment of the applicant’s impairments. As well, Dr. Grewal indicates in the OCF-3 an anticipated duration of the disability of 9-12 weeks, which does not support the 104 week period claimed by the applicant.

39The NEB Questionnaire completed by the applicant is presented to document her reported abilities in ordinary activities before and after the accident. I give little weight to this document on its own. It is not enough for an applicant to simply say they cannot do their pre-accident activities, but rather they must provide objective medical evidence of an inability to perform their activities. I find that the May 25, 2024 OCF-18 that the applicant refers to is not sufficient evidence to meet the onus. The section that the applicant directs me to does not provided any clinical observations but rather is quoting her self-assessment of her abilities, with comments such as “knee pain is getting worse after walking and running behind my kid is not even possible at present”. An OCF-18 by itself does not constitute sufficient evidence, but rather is a form that is used to apply for treatment. As such, I find that the OCF-18 does not serve as objective evidence to support the applicant’s abilities as stated in the NEB Questionnaire.

40Further, the respondent points me to the applicant participating in multidisciplinary insurer’s examinations (“IE”) with respect to her entitlement to an NEB. Dr. Seung-Jun Lee, physician, assessed the applicant on June 5, 2023. In Dr. Lee’s report dated September 27, 2023, the applicant reported to Dr. Lee a 60% improvement since the accident four months earlier. She continues to be independent with self-care activities but reported that she is unable to complete household chores or caregiving since the accident.

41Dr. Lee also reviewed the report of Ms. Alexandra Birioukova, occupational therapist (“OT”) dated September 27, 2023. Ms. Birioukova assessed the applicant on May 24, 2023 regarding her physical and functional abilities. Dr. Lee noted from the OT’s report that the applicant presented with functional range of motion and was able to complete all transitional movements and functional transfers during the assessment and to ambulate throughout her home in a functional manner. Dr. Lee conducted a physical examination of the applicant and found that there were no valid indicators to support ongoing accident-related musculoskeletal injury or impairment, and did not identify any ongoing accident-related musculoskeletal impairment that would cause a complete inability to carry on a normal life.

42I am persuaded by the multidisciplinary IE reports which concluded that the applicant did not suffer a complete inability to carry on a normal life. Overall, the evidence does not support that the applicant was continuously prevented from engaging in substantially all of her pre-accident activities. She remains independent with personal care, performs housekeeping albeit at less frequency and with some difficulty and avoids lifting heavier items. For caregiving, she uses modified strategies as needed and needs assistance when going out with her youngest son. She no longer goes to the gym to use the treadmill, and has modified her social and leisure activities, continuing to participate in family gatherings and seeing her friends, but doing so less often.

43As recognized in Heath, it is not sufficient for a claimant to demonstrate that there were changes in their post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to them being continuously prevented from engaging in substantially all of their pre-accident activities. I find that the applicant’s evidence does not meet this requirement.

44For the reasons above, I find that the applicant has not met her onus in proving on a balance of probabilities that she has a complete inability to carry on a normal life because of any accident-related impairments. Accordingly, the applicant is not entitled to an NEB.

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.

ORDER

46For the reasons outlined above, I find that:

i. The applicant shall remain in the MIG;

ii. As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary;

iii. The applicant is not entitled to an NEB of $185.00 per week from March 4, 2023 to February 1, 2025 or interest; and

iv. The application is dismissed.