Licence Appeal Tribunal File Number: 23-011065/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:
Karma Tenzin
Applicant
and
Economical Insurance Company
Respondent
DECISION
VICE-CHAIR:
Kevin Kovalchuk
APPEARANCES:
For the Applicant:
Esan Ince-Mercer, Counsel
For the Respondent:
Maia Abbas, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Karma Tenzin, the applicant, was involved in an automobile accident on July 19, 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 the respondent, Economical 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:
i. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and are therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from July 7, 2022, to April 19, 2023?
iii. Is the applicant entitled to $2,852.05 for Physiotherapy Services proposed by Van Rehab Centre Assessments in a treatment plan/OCF-18 ("plan") dated March 3, 2023.
iv. Is the applicant entitled to $2,720.00 for an Orthopaedic Assessment proposed by Van Rehab Center Assessments in a treatment plan dated May 15, 2023.
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to the funding limit of the MIG.
4As the applicant is in the MIG, it is not necessary for me to consider if the treatment plans are reasonable and necessary.
5As there are no overdue benefits payable the applicant is not entitled to interest.
6The application is dismissed.
ANALYSIS
Applicability of the Minor Injury Guideline (MIG)
7The MIG establishes a framework for the treatment of minor injuries. The term "minor injury" is defined in section 3(1) of the Schedule as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such injury". The terms "strain, sprain, subluxation and whiplash associated disorder" are also defined in section 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.
8An 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.
9The applicant submits that he has sustained a non-minor injury based on his chronic pain and psychological injuries. The applicant submits that he currently suffers from headaches and dizziness, neck pain, back pain, right hip pain and psychological problems.
10The respondent submits that the applicant has not been diagnosed with chronic pain or psychological problems.
The applicant does not have a chronic pain condition that would remove him from the MIG.
11I find that the applicant has not persuaded me on a balance of probabilities that he suffers from chronic pain in order to be removed from the MIG.
12The applicant relies primarily on a s. 25 Orthopaedic Chronic Pain Assessment Report of Dr. Benmoftah, Orthopaedic Surgeon dated July 10, 2023, in support of his position that he suffers from chronic pain.
13Dr. Benmoftah bases his diagnosis of chronic pain on the American Medical Association AMA Guides to the Evaluation of Permanent Impairment, 6th edition which provides that three or more of the following criteria are required for a diagnosis of chronic pain:
a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
b. Excessive dependence on healthcare providers, spouse or family.
c. Secondary physical deconditioning due to disuse and /or fear avoidance of physical activity due to pain.
d. Withdrawal from social milieu, including work, recreation or other social contacts.
e. Failure to restore pre-injury function after a period of disability, such that physical capacity is insufficient to pursue work, family, or recreational needs.
f. Development of psychological sequelae after the initial incident including anxiety, fear avoidance, depression, or non -organic illness behavior.
14Dr. Benmoftah notes that the applicant is not taking any medications and is not using alcohol or illicit drugs., Dr. Benmoftah found that the applicant "scored positive" for criteria, "b","c" "d" and "e". He noted that criteria "f" needed to be addressed by a psychologist. Dr. Benmoftah's findings with respect to the AMA Guidelines were all based on self reporting by the applicant, and I therefore assign them little weight.
15On physical examination Dr. Benmoftah found the following:
a. Examination of the cervical spine revealed a normal alignment. There was midline tenderness, as well as uncovertebral tenderness from C4 to C7. Neurological examination was normal.
b. Examination of the thoracolumbar spine revealed a normal alignment. There was midline tenderness, as well as paravertebral tenderness from L1 to L5. Neurological examination was normal. Straight leg test was negative. There were no leg length discrepancies.
c. Examination of the shoulders revealed no swelling. There was shoulder asymmetry, and his right shoulder is smaller than the left shoulder. There was tenderness over the anterolateral acromion long head of biceps and trapezius on both sides. Left shoulder strength was normal. Right shoulder strength was at 3/5.
16The applicant also submitted the clinical notes and records ("CNRs") of the applicant's family doctor Dr. Le for the period November 19, 2016, to April 5, 2024, the CNRs from Mount Sinai Hospital for the period July 19, 2019, to May 23, 2024. And an OCF-3 dated November 11, 2015.
17The respondent submitted s. 44 Reports from Dr. Lamine dated April 18, 2023, Harry Kaufman, Functional Abilities Evaluator dated April 18, 2023, and Dr. Costa El-Hage dated July 21, 2023.
18Dr. Lamine opined that based on his assessment and the documentation reviewed, the applicant sustained soft tissue injuries to the cervical spine, lumbar spine and left knee. Dr. Lamine found no objective accident-related musculoskeletal or potential neurological impairment.
19Harry Kaufman reported that "cervical ranges of motion were performed and were within normal limits". Shoulder, elbow and wrist ranges of motions were performed with right sided restrictions and right shoulder pain reported. Lumbar ranges of motions were performed and were restricted with low back pain reported. Hip, knee and ankle ranges of motions were performed and were within normal limits. Mr. Kaufman noted that the applicant put forth a low effort on testing.
20Dr. Costa El-Hage reported that the applicant did not meet the DSM 5 criteria for any psychological diagnosis. As well Dr. Costa El-Hage noted that her assessment did not identify any outside factors that would prevent the applicant from achieving maximal psychological recovery.
21The respondent submits that the applicant's complaints fall squarely within the definition of a minor injury. The respondent further submits that there are no indications of any psychological complaints or chronic pain diagnoses in either the records of the treating doctors or the OCF 3 submitted by the applicant.
22The respondent also submits that the report of Dr. Benmoftah dated June 21, 2023, is not corroborated by any other medical records submitted by the applicant and is based on self reported limitations.
23I agree with the respondent's position for the following reasons:
24First, the CNRs of the applicant's family doctor Dr. Le do not reveal any functionally disabling pain or impairment from ongoing or recurrent pain nor do they document any psychological complaints. In fact, in a number of entries Dr. Le notes that the applicant's mood and effect were appropriate.
25Second, I could find no corroborating evidence from a medical practitioner, that the applicant's accident-related injuries are chronic and ongoing or that the applicant suffers from functionally disabling pain that would be sufficient to remove him from the MIG.
26I assign little weight to Dr. Benmoftah's evidence because I do not find it to be consistent with the weight of the evidence from the applicant's family doctor or the s.44 reports submitted by the respondent.
27Because I could find no corroborating evidence that the applicant's accident-related injuries are chronic and ongoing or that the applicant suffers from functionally disabling pain, I find that the applicant has not persuaded me on a balance of probabilities that he should be removed from the MIG due to a chronic pain condition with a functional impairment.
The applicant does not have a psychological injury that would remove him from the MIG.
28The applicant has not made any submissions with respect to his psychological injuries except to state that he has, the "development of psychological disorders following an injury such as depression, selfisolation (sic), anxiety or excessive fear of injury." The applicant did not provide any evidence in support of these submissions.
29I find the statements made by the applicant to be unhelpful in meeting the applicant's burden of proving on a balance of probabilities that he has a psychological injury that would remove him from the MIG.
30I note that Dr. Benmoftah deferred to a psychologist on the issue of whether the applicant developed psychological sequalae after the accident including anxiety, fear avoidance, depression, or non-organic illness behavior.
31The applicant has not submitted a report from a psychologist.
32The respondent submitted a report from Dr. Costa El-Hage, Psychologist who reported that the applicant did not meet the DSM criteria for any psychological diagnosis. As well Dr. Costa El-Hage noted that her assessment did not identify any outside factors that would prevent the applicant from achieving maximal psychological recovery.
33Based on Dr. Costa El-Hage's report and because the applicant has not provided any evidence from a medical practitioner that the appellant sustained a psychological injury because of the accident, I find that the applicant has not persuaded me on a balance of probabilities that he should be removed from the MIG due to a psychological injury.
Income Replacement Benefit (IRB).
34To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be 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 tasks 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,
The applicant is not entitled to an income replacement benefit in the amount of $400.00 per week from July 7, 2022, to April 19, 2023.
35I find that the applicant has not persuaded me on a balance of probabilities that he is entitled to an income replacement benefit in the amount of $400.00 per week from July 7, 2022, to April 19, 2023.
36The applicant submits "that in light of the severity and chronicity of the injuries set out in the medical documentation he is entitled to Income Replacement benefits at $400 per week".
37The applicant further submits that "to this day he remains substantially disabled from his usual employment and any employment he is suited to, as stipulated in the relevant legislation."
38I find the statements made by the applicant to be unhelpful in meeting the applicant's burden of proving on a balance of probabilities that he is entitled to IRBs.
39The applicant has made no further submissions as to why he is entitled to IRBs.
40The applicant has not provided any evidence as to the essential tasks of his employment, which tasks he is able to perform and to what extent he is unable to perform them.
41I therefore find that the applicant has not met his onus of showing on a balance of probabilities that he is entitled to an IRB in the amount of $400.00 per week from July 7, 2022, to April 19, 2023.
None of the treatment plans are payable.
42As I have determined that the applicant is subject to treatment within the monetary limits of the MIG and that the parties have agreed that the MIG limits have been exhausted there is no need for me to consider if the treatment and assessment plans are reasonable and necessary.
No Interest is payable.
43As no benefits are overdue, no interest is payable.
ORDER
44As a result of the above and on a balance of probabilities I find that:
i. The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.
ii. As the applicant is in the MIG, I do not need to consider if the treatment plans are reasonable and necessary.
iii. As there are no overdue benefits payments the applicant is not entitled to interest.
iv. The application is dismissed.
Released: October 3, 2025
Kevin Kovalchuk
Vice-Chair