Licence Appeal Tribunal File Number: 23-013818/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:
John Kodric
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR: Jeff Chatterton
APPEARANCES:
For the Applicant: Sadique Alexander, Paralegal
For the Respondent: Karen Klaiman, Counsel
HEARD: In Writing
OVERVIEW
1John Kodric, the applicant, was involved in an automobile accident on September 7, 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, TD General 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 $2,722.62 for physiotherapy, proposed by Progressive Rehab Clinic in a treatment plan/OCF-18 (“plan”) dated April 12, 2023?
iii. Is the applicant entitled to $451.24 ($1,300.00 less $848.76 approved) for physiotherapy, proposed by Progressive Rehab Clinic in a treatment plan dated February 16, 2023?
iv. Is the applicant entitled to $2,195.41 for a psychological assessment, proposed by Unison Medical Assessments in a treatment plan dated December 15, 2022?
v. Is the applicant entitled to $4,164.64 for psychological services, proposed by Unison Medical Assessments in a treatment plan dated February 27, 2023?
vi. Is the applicant entitled to $1,801.31 for psychological services, proposed by Unison Medical Assessments in a treatment plan dated December 8, 2022?
vii. Is the applicant entitled to $1,945.90 for a cognitive assessment, proposed by Unison Medical Assessments in a treatment plan dated February 16, 2023?
viii. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Unison Medical Assessments in a treatment plan dated June 26, 2023?
ix. Is the applicant entitled to $1,895.30 for an in-home occupational therapy assessment, proposed by Unison Medical Assessments in a treatment plan dated December 5, 2022?
x. Is the applicant entitled to $695.00 ($1,995.00 less $1,300.00 approved) for an orthopaedic assessment, proposed by Unison Medical Assessments in a treatment plan dated December 5, 2022?
xi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not met his onus to establish he should be removed from the MIG.
4As the applicant is held to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
5No award or interest are payable.
ANALYSIS
Chronic Pain with a Functional Impairment
6I find that, on the balance of probabilities, the applicant has not met his onus to demonstrate that he should be removed from the MIG.
7Section 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.”
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 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.
9The applicant submits he should be removed from the MIG due to chronic pain, especially in his right shoulder. To support this argument, the applicant has submitted the clinical notes and records (‘CNRs’) from his family physician, Dr. Chris Culligan. CNR’s from Dr. Culligan indicate that the applicant has a documented history of complaints of shoulder pain.
10The applicant also relies upon the results of an Orthopaedic Assessment conducted by Orthopaedic Surgeon Dr. Tejadin Getahun, in January 2023, an MRI conducted in April 2023 and an ultrasound conducted in January 2023.
11Dr. Getahun’s assessment concluded that the applicant had suffered ‘chronic myofascial strain.” The ultrasound revealed subscapularis calcific tendinosis, while the MRI indicated “multilevel neural foraminal stenosis.”
12I note both parties accept that the applicant is dealing with shoulder pain. The respondent maintains the applicant has suffered predominantly soft tissue injuries, and that the applicant’s injuries are degenerative and chronic, versus trauma based.
13The respondent relies upon a physiatry assessment conducted in May 2023, conducted by Dr. Andrej Gwardjan. Dr. Gwardjan also conducted numerous paper reviews from August 2023 to August 2024, where he consistently maintains that the applicant has suffered soft-tissue sprain and strain type injuries and should be held to the MIG.
14I am alive to the applicant’s argument that he was not given an opportunity to receive a chronic pain assessment, however, I do note that a formal diagnosis is not necessary to prove chronic pain. However, even if both parties were to accept that the applicant suffers from accident-induced chronic pain, the existence of chronic pain does not, on its own, merit removal from the MIG.
15It is longstanding practice that the applicant would need to prove chronic pain with a functional limitation. Despite the onus being upon the applicant to prove chronic pain with a functional limitation, I have not been led to medical evidence which indicates the applicant is suffering from functional limitation.
16Without evidence of a functional limitation, I find on the balance of probabilities, that the applicant has not met his onus to establish that he has chronic pain with a functional impairment that warrants removal from the MIG.
Psychological injury
17I find that the applicant has not met his onus to establish he should be removed from the MIG based on psychological grounds.
18To support his position, he relies upon a psychological assessment conducted by Psychologist Dr. Dragica Visnjevac Fink on February 1, 2023. In this assessment, Dr. Fink used a number of tests, including the Beck Anxiety Inventory, the Beck Depression Index, and a Post-Traumatic Stress Disorder checklist to diagnose the applicant with adjustment disorder. Dr Fink opines that while many of his test results fall into the ‘normal’ range, his psychological injuries fall outside the definition of a minor injury.
19The respondent relies upon a psychological assessment authored by Psychologist Dr. Charlotte Gooden on March 21, 2023. In this assessment, Dr. Gooden used, amongst other tests, the Clinical Assessment of Depression (CAD) test, and concludes that “Mr. Kodric does not meet criteria for a formal DSM-5-TR diagnosis as a result of the subject accident.” She further opines that the applicant should be held to the Minor Injury Guideline.
20I prefer the evidence of the respondent. Both assessments were conducted virtually. The primary difference I found is that the two-thirds of the tests used by the applicant’s psychologist are primarily self-reporting tools and subjective in nature, whereas the primary diagnostic tool used by Dr. Gooden – the CAD test - is objective, with validity and symptoms scales.
21For this reason, I find that on the balance of probabilities, the applicant has not met the onus to establish that he should be removed from the MIG on the basis of psychological injury.
22As the applicant is being held to the monetary limits of the MIG, it is not necessary to review whether the treatment plans in dispute are reasonable and necessary.
Award
23The applicant has indicated that they have withdrawn their request for an award.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue and therefore no interest is payable.
ORDER
25The application is denied.
i. The applicant has not met his onus to establish he should be removed from the MIG.
ii. As the applicant is held to the MIG it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
iii. No award or interest is payable.
Released: October 3, 2025
Jeff Chatterton
Adjudicator