Frances Tzigeris v. Belair Insurance Company Inc., 2025 CanLII 102195

Citation and File Number

Citation: Tzigeris v. Belair Insurance Company Inc., 2025 ONLAT 23-014480/AABS

Licence Appeal Tribunal File Number: 23-014480/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:

Frances Tzigeris Applicant

and

Belair Insurance Company Inc. Respondent

Decision

Adjudicator: Dagmar Boettcher

Appearances:

For the Applicant: Kim Mohammed-Sieudhan, Paralegal For the Respondent: Gurpreet Singh, Counsel

Heard: By Way of Written Submissions

OVERVIEW

1Frances Tzigeris, the applicant, was involved in an automobile accident on December 8, 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, Belair Insurance Company Inc., 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? Note: The parties agree $2,336.06 has been paid as of the date of the case conference.

ii. Is the applicant entitled to $3,244.58 for chiropractic and massage services, proposed by Alma Rehab Inc., in a treatment plan/OCF-18 (“plan”) submitted on March 20, 2023?

iii. Is the applicant entitled to $2,912.56 for chiropractic and massage services, proposed by Alma Rehab Inc., in a plan submitted on June 1, 2023?

iv. Is the applicant entitled to $2,912.56 for chiropractic and massage services, proposed by Alma Rehab Inc., in a plan submitted on July 31, 2023?

v. Is the applicant entitled to $3,363.84 for chiropractic and massage services, proposed by Alma Rehab Inc., in a plan submitted on September 28, 2023?

vi. Is the applicant entitled to $1,995.47 for psychological services, proposed by Alma Rehab Inc., in a plan submitted on September 15, 2023?

vii. Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Alma Rehab Inc., in a plan submitted on March 10, 2023?

viii. Is the applicant entitled to $2,397.75 for an orthopaedic assessment, proposed by Ontario Independent Assessment Centre Inc., in a plan submitted on August 22, 2023?

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

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

RESULT

3I find that the applicant has not met the onus of proving that their injuries fall outside the definition of a “minor injury” as defined in s. 3 of the Schedule and they are therefore subject to treatment within the $3,500.00 MIG limit.

4As the applicant remains within the MIG there is no entitlement to the benefits at issue.

5No award is payable.

6No interest is payable.

7The application is dismissed.

ANALYSIS

The injuries are predominantly minor and the MIG applies?

8I find that the applicant has not met the onus of proving that her injuries fall outside the definition of a “minor injury” as defined in s. 3 of the Schedule and she is therefore subject to treatment within the $3,500.00 MIG limit.

9Section 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.”

10An 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.

11The applicant argues that she is not subject to the MIG on two grounds:

i. The medical evidence supports a psychological impairment as a result of the motor vehicle accident; and

ii. The medical evidence supports a chronic pain diagnosis.

12The respondent submits that the applicant’s soft tissue injuries meet the definition of “minor injury” and therefore fall within the MIG and that there is no compelling medical evidence that documents either psychological impairments as a result of the motor vehicle accident or a chronic pain diagnosis.

Does the medical evidence support a diagnosis of psychological impairments resulting from the motor vehicle accident?

13I find that, on a balance of probabilities, the applicant has not established that she has psychological impairments that warrant removal from the MIG.

14The applicant submits that she has sustained psychological impairments as a result of the motor vehicle accident, including but not limited to heightened fear and anxiety while driving, reduced work productivity due to lack of focus and concentration, tiredness, sadness, loss of pleasure, and depression.

15The applicant points me to the Disability Certificate (OCF-3) completed by Dr. Bohdan Osoba, Chiropractor, on December 13, 2022, completed five days after the accident. The applicant submits that Dr. Osoba indicated that the applicant suffers from physical and psychological impairments and recommended a Functional Abilities and a Psychological Assessment. The applicant also points me to a letter issued by Ulviya Javanshir, R.S.W. dated January 30, 2023 in which the applicant reported that she experiences heightened fear and anxiety while driving and reduced productivity at work due to poor sleep. Miss Javanshir recommended further psychological evaluation and counselling.

16The applicant directs me also to the clinical notes and records of Dr. Neil Jones for March 21, 2023. The applicant submits that the CNRs indicate that Dr. Jones referred the applicant for a psychological assessment and treatment as she experienced psychological trauma from the motor vehicle accident. However, there is no assessment by Dr. Jones noted in the CNRs for that date regarding psychological impairments or any discussion with the applicant regarding psychological impairments. I am pointed instead to a one page Alma Rehab form on the same date, in which Dr. Jones checked the boxes for a Psychological Assessment and psychological trauma.

17The applicant submits that the subsequent Psychological Assessment performed by Dr. Divya Jyoti and Dr. Konstantinos Papazoglou dated September 1, 2023 indicated that the applicant has developed significant psychological/emotional impairments resulting from the motor vehicle accident (“MVA”).

18The respondent submits that the medical evidence does not support psychological impairments as a result of the motor vehicle accident and points me to the CNRs of Dr. Jones dated December 28, 2022, January 11, 2023, January 14, 2023, January 16, 2023, January 20, 2023, February 1, 2023, March 21, 2023, April 21, 2023, and August 2, 2023. Within these nine visits to Dr. Jones over a period of seven months, the respondent submits that the applicant only mentioned the motor vehicle accident on three occasions; December 28, 2022, which was the date of the accident, March 21, 2023 and August 2, 2023. During the latter appointment, the applicant asked whether Dr. Jones felt x-rays were required and he responded that there was no clinical indication requiring x-rays. The respondent submits that not one of the CNRs supports the applicant’s assertion of psychological impairments as a result of the MVA, and that there were no other references to the MVA in the CNRs of Dr. Jones up to May 19, 2024.

19The respondent submits that the Psychological Assessment Report dated September 1, 2023 by Drs. Jyoti and Papazoglou is flawed and unreliable for two reasons. The respondent submits there is no evidence that the assessors reviewed the applicant’s treating records and the assessors’ diagnosis is inconsistent with the applicant’s Pain Profile (“P3”). The respondent also submits that the Beck Inventories are self-reporting checklists with no validity measures and the only test completed with a validity measure was the P3, in which the applicant scored in the average range for somatic problems and anxiety and below average for depression when compared to other patients.

20The respondent relies instead upon Dr. Alan Chan’s Psychological Assessment Report dated May 15, 2023 which was based upon a clinical interview, psychological testing, and a review of the applicant’s medical records. The respondent submits that Dr. Chan noted some clinically associated psychological sequelae such as mild or transient depressive symptomology, but did not diagnose psychological impairment or disorder, and opined her psychological prognosis was good. The respondent also submits the Assessment Report dated May 15, 2023 indicates that the applicant herself reported a 70% improvement with her physical injuries, being independent with self-care duties, performing some housekeeping, going to the gym occasionally and returning to regular work hours and duties. Dr. Chan noted the applicant reported she did not feel the need for psychological treatment and that she was managing to cope with the motor vehicle accident (“MVA”) on her own.

21The respondent points me to a subsequent Psychological Assessment Report by Dr. Chan dated May 13, 2024 which indicated that there was no psychological impairments or disorder and that the applicant’s prognosis was excellent.

22I prefer the respondent’s medical evidence because Dr. Chan reviewed the medical documentation, the treatment plans, the CNRs of Alma Rehab and the Independent General Practitioner’s Examination Report of Dr. Chaudhry, dated May 9, 2023. Additionally, Dr. Chan’s Psychological Assessment Report of June 7, 2023 was performed in person and was two hours in length. Dr. Chan concluded within the June 7, 2023 Assessment Report that the applicant continues to be independent with self-care and reported a 70% improvement in her physical injuries. The applicant reported to Dr. Chan that she did not feel the need for psychological treatment and that she was managing to cope with the accident on her own. Dr. Chan found the applicant did not meet the DSM-5-TR criteria for any disorders. During the subsequent Assessment Report dated May 13, 2024, the applicant reported an 85% improvement in her physical injuries.

23I have placed less weight on the applicant’s Psychological Assessment Report of Drs. Divya Jyoti and Dr. Konstantinos Papazoglou dated September 1, 2023, because it was performed only partially in person, concluded via telephone, and did not indicate that any medical documentation had been reviewed prior to the assessment.

24I also find that the CNRs provided by the applicant from Dr. Jones for the period from December 28, 2022 to March 13, 2024 indicate that the applicant mentioned the MVA on three occasions only; December 28, 2022, which was the date of the accident, March 21, 2023 and August 2, 2023. Not one of the CNRs I was pointed to by the applicant indicates a discussion with Dr. Jones of psychological impairments. Dr. Jones also does not reference or discuss the Psychological Assessment Report of September 1, 2023 by Drs. Jyoti and Papazoglou within the CNRs.

25For the above reasons, I find insufficient evidence advanced by the applicant to persuade me that, on a balance of probabilities, the applicant suffers from psychological impairments as a result of the MVA.

Does the medical evidence support a diagnosis of chronic pain resulting from the motor vehicle accident?

26I find that the applicant has not proven, on a balance of probabilities that she suffers from chronic pain with functional impairment. It is well established that ongoing or lingering pain does not automatically take a person out of the MIG. The pain must be of a continued severity and must be severe functionally disabling pain.

27The applicant submits that chronic pain resulting from the motor vehicle accident has impacted her social life and limits her social interactions. The applicant relies upon an Orthopaedic Assessment Report dated September 25, 2023, completed by Dr. Efala, in which the applicant was diagnosed with chronic pain of her neck, back, left shoulder and wrists. Dr. Efala recommended the applicant enroll in a chronic pain management clinic and continue physiotherapy.

28The respondent submits that the medical evidence provided by the applicant does not support a diagnosis of chronic pain and that the treating medical records support a diagnosis of soft tissue injuries. The respondent submits that the Orthopaedic Assessment Report of Dr. Efala’s dated September 25, 2023 is flawed and contradictory, as Dr. Efala did not review the family physician’s medical records, relying instead only upon the letter dated January 30, 2023 by Ulviya Javanshir, R.S.W. Additionally, the respondent submits that Dr. Efala noted the applicant continues to work at the same job, 5 days per week and 7.5 hours per day, only missing one week of work after the accident. The respondent points me then to Dr. Efala’s work assessment capacity where he goes on to state that the applicant suffers a substantial inability to perform the essential tasks of her employment, which the respondent submits contradicts Dr. Efala’s report which documents that the applicant submitted she continues to work at the same job, 5 days per week and 7.5 hours per day.

29The respondent relies instead upon an Independent General Practitioner’s Examination Report dated June 7, 2023 completed by Dr. Ijaz Chaudry. Dr. Chaudry reviewed the medical documentation prior to the in-person assessment with the applicant. Dr. Chaudry concluded that the applicant’s pain was from a sprain/strain type of injury and that these were soft tissue injuries consistent with “minor injuries” as defined by the Statutory Accident Benefit Schedule.

30The respondent submits that the Tribunal has considered the American Medical Association Guides (“AMA Guides”) a useful tool for assessing claims of chronic pain. The AMA Guides state that at least three of the following criteria must be met for a diagnosis:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

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

v. 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; and

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

31The respondent submits that the applicant does not meet any of the above criteria, in that there was no evidence provided pointing to a reliance on prescription drugs, no evidence pointing to excessive reliance on health care providers, spouse or family. The respondent submits that the applicant remains independent in her personal care tasks, continues to work full-time and care for her grandchildren. Additionally, the respondent notes that the family physician did not diagnose any impairments outside the MIG.

32I have placed more weight on the respondent’s Independent General Practitioner’s Examination Report dated June 7, 2023 for a number of reasons. Dr. Chaudry reviewed the medical documentation available prior to the assessment whereas Dr. Efala reviewed only the letter dated January 30, 2023 by Ulviya Javanshir, R.S.W. and relied upon the applicant’s self-reporting. Dr. Efala acknowledged that he was unable to prepare a conclusive report until he received the previous consultations and reports yet concluded that the applicant suffered a substantial inability to perform the essential tasks of her employment, a substantial inability in performing self-care, a substantial inability in performing the heavier pre-accident housekeeping and home maintenance activities.

33While the AMA Guides six criteria for chronic pain were not incorporated into the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes. The applicant’s submissions do not reference the AMA Guides, and the CNRs provided in the applicant’s submissions do not contain evidence of persistent, functionally disabling pain. As a result, I have placed more weight on the submissions of the respondent and find insufficient evidence advanced by the applicant to persuade me that, on a balance of probabilities, the applicant suffers from chronic pain and should be removed from the MIG.

34As I have found that the applicant is not entitled to funding beyond the MIG limit, it is unnecessary for me to consider whether the treatment plans are reasonable and necessary.

Award

35As I have found that there are no overdue payments of benefits, the applicant is not entitled to an award under s. 10 of Reg. 664.

Interest

36As I have found that there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

37I order the following:

i. The applicant remains within the MIG and is subject to the $3,500.00 funding limit;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to an award;

iv. The applicant is not entitled to interest; and

v. The application is dismissed.