Licence Appeal Tribunal File Number: 23-014799/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:
Hiba Chaudhry
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melissa Shea
APPEARANCES:
For the Applicant:
Daniella Cohen, Paralegal
For the Respondent:
Ada Lika, Counsel
HEARD:
In Writing
OVERVIEW
1Hiba Chaudhry, the applicant, was involved in an accident on November 28, 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 the respondent, BelairDirect 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 therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $186.94 ($1,300.20 less $1,113.26 approved) for physiotherapy services, proposed by Aspexx Physiotherapy in a treatment plan/OCF-18 (“plan”) submitted March 29, 2022, and partially denied May 3, 2022?
iii. Is the applicant entitled to $4,450.64 for chiropractic services, proposed by Aspexx Physiotherapy in a plan submitted June 9, 2022, and denied September 20, 2022?
iv. Is the applicant entitled to $1,998.50 for an attendant care assessment, proposed by MedMax Assessment Center in a plan submitted May 30, 2022, and denied May 26, 2023?
v. Is the applicant entitled to $3,747.40 for chiropractic services, proposed by HealthPro Wellness in a plan submitted December 2, 2022, and denied December 7, 2022?
vi. Is the applicant entitled to $3,037.92 for chiropractic services, proposed by HealthPro Wellness in a plan submitted August 21, 2023, and denied October 10, 2023?
vii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by A&B Medical Assessments Inc., in a plan submitted March 27, 2023, and denied May 26, 2023?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is subject to the MIG.
4The applicant is not entitled to the treatment plans in dispute, or interest.
ANALYSIS
Applicant is subject to the Minor Injury Guideline limit
5I find the applicant is subject to the MIG on the basis that I do not find sufficient medical evidence to support the claim that her injuries are not minor.
6Section 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 sequalae to such an injury.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
The applicant has not established chronic pain warranting removal from the MIG
7The applicant submits that she should be removed from the MIG on two grounds. The first ground is chronic pain as a result of the accident. The applicant argues that the accident resulted in chronic pain in her neck, shoulder, and upper back. The applicant relies on the following evidence to support a removal from the MIG due to chronic pain: Family Doctor, Dr. Ihsan Waraich’s clinical notes and records (“CNRs”); Physiotherapist Sandeep Saroya’s Disability Certificate (“OCF-3”); Dr. Eric Silver’s IE Musculoskeletal Assessment; Dr. Charlotte Lynn Gooden’s IE Psychological Examination; Chiropractor Dr. Patricia Porco’s Disability Certificate; Mr. Rahim Kassam’s IE Occupational Therapy Assessment.
8The respondent disagrees and argues that the applicant is subject to the MIG. The respondent submits that in the 3 years since the accident, the applicant reported concrete accident-related complaints to her various medical health professionals only 4 times, and further submits that her treating physicians did not recommended diagnostic imaging, treatment or a chronic pain program. The respondent argues that the applicant has the onus and has not produced a formal diagnosis of chronic pain, or of any impairment that is not a predominantly minor injury, or that she is functionally impaired as a result of chronic pain or is unable to participate in any pre-accident activity.
9The respondent submits that the applicant has failed to provide medical evidence or reports to satisfy the applicant’s onus, whereas the MIG findings of s. 44 assessor Dr. Silver in support of the respondent’s position, and submits that the Disability Certificates completed by her chiropractor and physiotherapist provide findings not in their expertise. Finally, the respondent relies on Dr. Silver’s IE Musculoskeletal Assessment and orthopaedic testing of the applicant’s bilateral shoulders, knees, neck and lower back, and submits that on August 16, 2022 the applicant retained full range of motion which did not corroborate the applicant’s reporting of functional impairment.
10I find the applicant has not provided sufficient medical evidence to support the claim of accident-related chronic pain with functional impairment, to warrant removal from the MIG.
11The applicant’s family physician Dr. Ihsan Waraich’s clinical notes and records indicate that the applicant is experiencing pain in the neck, shoulders and upper back. However, this note is from November 30, 2021, which is only two days post-accident, and the applicant does not direct me to any clinical notes and records of Dr. Waraich which reference pain or provide a chronic pain diagnosis at a later date, and is therefore not evidence of chronic pain. These clinical notes and records do not include a diagnosis of chronic pain or outline if the applicant is suffering from a functional limitation due to pain.
12Sandeep Saroya, Physiotherapist, states in his Disability Certificate (OCF-3), that the applicant reports “complaint of neck pain, stiffness or tenderness,” however, the date of examination on the submitted OCF-3 is stated to be November 29, 2021, which is one day post-accident. In my view, this pain report, immediately after the accident, is not evidence of ongoing chronic pain. I agree with the respondent’s argument that many injuries listed on the OCF-3 are outside of the physiotherapist’s expertise, such as “sleep disorders.” Although functional limitations are addressed and the applicant is indicated to have a “complete inability to carry on a normal life,” the time limit is indicated to be 9-12 weeks only, and a reasoning given for functional limitations on the OCF-3 is that the patient is 8 months pregnant. Therefore I do not find this OCF-3 to be convincing evidence of chronic pain.
13Dr. Silver’s Insurer Examination s. 44 Musculoskeletal Assessment on August 16, 2022, contains evidence of ongoing pain, however, Dr. Silver concludes her injuries are minor as defined in the Schedule, and found no objective evidence of impairment as a result of the injury. Dr. Silver indicates the applicant has headaches, twice weekly, however, I did not find any statement in this report that the headaches were related to the accident. The recent knee pain of the applicant is also not tied to the accident in the assessment. Dr. Silver also notes the applicant reported discontinuing physiotherapy in May 2022, 6 months after the accident. Dr. Silver further states that the applicant has not had physiotherapy at any other clinics until the time of the assessment. Dr. Silver concludes that the applicant’s injuries are within the MIG. Although Dr. Silver’s report indicates the applicant self-reported pain in her neck, shoulders and back, aggravated by housekeeping and childcare activities, it is not sufficient to discharge the applicant’s burden of proof since it doesn’t also show a functional limitation. The self-reporting, on its own, is insufficient evidence to remove the applicant from the MIG, based on functional impairment due to chronic pain.
14The applicant further relies on the IE report of April 28, 2023 by Dr. Charlotte Gooden, Psychologist. Dr. Gooden noted self-reported pain by the applicant, however she also noted the applicant “did not indicate clinically significant rumination over pain.” The applicant relies on Dr Gooden’s evidence, but Dr. Gooden is not qualified to diagnose chronic pain. Further, Dr. Gooden’s opinion which only reflects self-reported pain complaints does not support that the applicant has chronic pain with functional limitation.
15The Disability Certificate of Chiropractor Dr. Patricia Porco, dated November 19, 2022, is unconvincing as evidence of chronic pain. Although Dr. Porco states the applicant sustained a “complete inability to carry on a normal life...[due to] injuries sustained in this accident,” this inability is not tied to pain in this document, and the length of anticipated disability is 9-12 weeks only. Although again, chronic headache is mentioned, also here there is no mention that the headache is related to the accident. The list of injuries sustained are listed at the end of the document are either within the MIG or are psychological issues that are unrelated to the work of a chiropractor, and although there is a “complaint of neck pain, stiffness or tenderness,” there is no discussion of impairment related to this pain in this report, and I therefore find this evidence unconvincing of chronic pain. The second OCF-3 by Dr. Porco, dated April 8, 2023, contains similar reporting and I similarly find that this OCF-3 provided a list of injuries, which are either within the MIG, or are psychological issues that are unrelated to the work of a chiropractor.
16The IE Occupational Therapy Assessment by Mr. Rahim Kassam, dated July 24, 2023, also mentions the applicant’s headaches, however, it does not indicate these headaches are due to the accident. It mentions knee pain, however, indicates that appeared 1-2 months prior to the assessment, over a year post-accident, and appears to be unrelated to the accident. The assessment indicates the applicant self-reports neck and upper back pain, and it is mentioned that it is exacerbated by childcare and household chores, however despite at 8/10 scale self-reported pain, a full range of motion is assessed in testing. In his conclusion Mr. Kassam indicates that as to assessing the applicant’s impairment, “the question is outside the scope of occupational therapy,” but proceeds to quote from Dr. Silver’s report, implying that he agrees with Dr. Silver:
Ms. Chaudhry sustained sprain and strain injuries to her cervical spine, thoracic spine, lumbar spine and upper trapezius muscles as a result of the accident. These injuries would have led to temporary impairments. It is my opinion that these injuries and impairments have resolved and therefore prognosis does not apply.
17I find insufficient evidence in this assessment of functional limitations due to pain.
18From my review of the evidence, although there is evidence the applicant had knee pain and experienced headaches post-accident, there has been insufficient evidence to convince me that this pain is related to the accident. The applicant has also self-reported pain in neck, shoulders and back, aggravated by housekeeping and childcare activities, which is corroborated in several reports. However, the applicant returned to work, continues in housekeeping in childcare activities, and did not exhibit functional impairments in physical examinations with Dr. Silver, nor do the clinical notes and records of Dr. Waraich reflect functional impairments. Although I find evidence of pain reports in the applicant’s submissions, I find the evidence provided is insufficient to convince me on the balance of probabilities that the applicant sustained a functional impairment due to chronic pain.
19I find no need to analyse the evidence of the respondent, as the applicant has not met her onus.
20I find the evidence provided insufficient to convince me on the balance of probabilities that the applicant should be removed from the MIG based on chronic pain with functional impairment.
Applicant is subject to the MIG based on psychological impairment
21The applicant submits that she should be removed from the MIG on two grounds. The second ground is because the applicant submits she suffered a psychological impairment as a result of the accident. The applicant relies on the following evidence to support her claim that she suffers from anxiety, depression, sleep issues, and emotional distress post-accident: Psychologist Dr. Gooden’s IE assessment; Physiotherapist Sandeep Saroya’s Disability Certificate(OCF-3); Chiropractor Dr. Patricia Porco’s 2 Disability Certificates (OCF-3s).
22The respondent disagrees and submits that the applicant is subject to the MIG. The respondent submits that the applicant has not provided medical evidence that she sustained an accident related psychological impairment, and that no psychological symptoms were noted in medical visits other than self-reporting. The respondent submits that the applicant has failed to provide medical evidence or reports to rebut the MIG findings of its s. 44 assessor Dr. Gooden. The respondent also relies on Dr. Gooden’s Psychological Assessment.
23In regards to the IE assessment of Psychologist Dr. Gooden, I find this report does not establish evidence of a psychological impairment. The applicant argues this assessment is convincing evidence of cognitive impairment. However, although the applicant self-reported symptoms to the assessor, the assessor noted “mild evidence of loss of concentration and attention due to her son attending the appointment,” and further states the applicant “does not suffer a psychological impairment resultant from the subject accident.” As such, this evidence does not support the applicant’s position that she sustained a psychological impairment.
24Physiotherapist Sandeep Saroya’s Disability Certificate (OCF-3)’s notes the following injuries: “sprain and strain of cervical spine, thoracic spine, lumbar spine, shoulder joint, dizziness and giddiness, other sleep disorders, whiplash associate disorder [WAD1] with complaint of neck pain, stiffness or tenderness only, other anxiety disorders, post-traumatic stress disorder,” however I note that the physiotherapist is not qualified to diagnose the psychological injuries listed, and I therefore am assigning this significantly less weight, and find the evidence unconvincing of psychological impairment.
25Dr. Porco, Chiropractor, completed 2 Disability Certificates, in which are listed psychological injuries, however, a chiropractor is not qualified to diagnose the psychological injuries listed, and I therefore am assigning this significantly less weight, and find the evidence unconvincing of psychological impairment.
26I find no need to analyse the evidence of the respondent, as the applicant has not met her onus.
27I find the evidence provided insufficient to convince me on the balance of probabilities that the applicant should be removed from the MIG based on psychological impairment.
The treatment plans in dispute will not be analyzed as the MIG limits have been exhausted
28Since I have found the applicant remains within the MIG, there is no need for me to conduct the reasonable and necessary analysis of the disputed treatment plans.
Interest
29As no benefits are payable, it follows that no interest is payable under s. 51 of the Schedule.
ORDER
30I order that:
i. The applicant is subject to the MIG.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. The applicant is not entitled to interest.
Released: October 6, 2025
__________________________
Melissa Shea
Adjudicator