Licence Appeal Tribunal File Number: 23-014435/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:
Erik Alexander Sierra
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Dayana Soto Santana, Paralegal
For the Respondent:
Abigail Newcombe, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Erik Alexander Sierra (the “applicant”) was involved in an automobile accident on January 28, 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 Allstate 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:
Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
Is the applicant entitled to physiotherapy services in the amount of $234.20, proposed by Art Rehabilitation Centre in an OCF-18 treatment plan submitted on November 2, 2023?
Is the applicant entitled to chiropractic services proposed by 101 Physio in OCF-18 treatment plans, as follows:
(a) $1,490.00 submitted on November 6, 2023; and
(b) $3,051.28 submitted on March 7, 2023?
- Is the applicant entitled to the following medical benefits proposed by 101 Assessments in OCF-18 treatment plans, as follows:
(a) Psychological assessment in the amount of $2,460.00, submitted on April 14, 2023;
(b) Psychological services in the amount of $3,790.70, submitted May 11, 2023; and
(c) Orthopaedic assessment in the amount of $2,200.00, submitted on May 15, 2023?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG and is not entitled to the disputed OCF-18 treatment plans. No interest is payable.
PROCEDURAL ISSUES
4The respondent says the applicant breached the case conference report and order (“CCRO”) for this matter by failing to disclose the clinical notes and records of 101 Physio and Dr. David Price (family physician) until he filed his written submissions. The respondent maintains that the applicant should not be permitted to rely on this evidence and asks that the Tribunal not consider it when taking its decision.
5The applicant did not file reply submissions to address the respondent’s position on the compliance of his evidence disclosure with the Tribunal’s orders.
6Rule 9.3 of the Licence Appeal Tribunal Rules (the “Rules”) provides that a party who fails to comply with an order with respect to disclosure may not rely on that evidence without the permission of the Tribunal. The CCRO notes that the parties agreed to exchange the specific documents contested by the respondent within 30 days of the case conference.
7I allow the applicant to rely on the records of his family physician and 101 Physio. In considering the factors set out at Rule 9.3, I find this evidence is presumptively relevant to the issues disputed in the proceeding. And while I accept the respondent opposes the admission of this evidence to the proceeding, I find the respondent has not argued or shown it would be prejudiced if I allowed the applicant to rely on these documents. Per Rule 15, it was open to the respondent to file a motion with the Tribunal once the 30-day period for disclosures passed without compliance. In my view, the respondent’s choice to delay due process—and instead seek remedy at the time it filed its written submissions almost eight months after this production deadline passed—greatly diminishes the persuasiveness of the respondent’s position.
ANALYSIS
The applicability of the MIG
8I find the MIG does not apply to the applicant’s claim.
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.”
10The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2) of the Schedule, which says the MIG limit does not apply if the applicant’s health practitioner determines and provides: (1) compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and (2) that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from his accident-related injuries if kept in 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.
11In this case, the applicant submits he has had to continuously cope with impairments and functional limitations arising from his physical and psychological accident-related injuries. He argues that he should be removed from the MIG because of a pre-existing condition and owing to chronic pain. While the applicant’s submissions are not clear that he seeks removal from the MIG on any other basis, my understanding is that he is also advancing psychological impairment support his claim. As such, I have also addressed this factor.
Pre-existing condition
12I find the applicant remains in the MIG because he has not demonstrated he meets the pre-existing medical condition provision as set out in the Schedule.
13The applicant submits his pre-existing conditions include a history of mental health difficulties that incorporate struggles with anxiety and depression for most of his life. The applicant’s submissions recount a “mental breakdown” in 1993, which led to continued anxiety attacks of sufficient severity to receive pharmacological treatment. He also received medication for his depression the year prior to the accident and had earlier received psychiatric assistance and participated in counselling sessions.
14The applicant also alleges pre-existing physical conditions. He broadly references two earlier accidents that resulted in “mild injuries” from which he fully recovered. He claims injuries to his left knee and foot from a workplace accident in 2017, as well as a second workplace accident in 2019 that re-injured his left knee and resulted in an 18-month absence from work.
15The respondent’s submissions do not dispute a pre-accident history of mental health issues that extends back 20 years. Rather, the respondent contends the applicant’s symptomology was owing to factors other than the accident, and that contrary to the applicant’s claim of aggravated mental health difficulties, his psychological condition improved after the accident. The respondent’s submissions do not address pre-existing medical conditions of a physical nature.
16The applicant has not led evidence to support pre-existing medical conditions under either a psychological or physical scenario. To prove his pre-existing medical conditions, the applicant must first show that a health practitioner documented, before the accident, compelling evidence of a pre-existing medical condition. The applicant has not done this, despite making submissions that claim multiple pre-existing medical conditions. As such, he has not met his onus to prove the first part of the provision, which is to show he does, in fact, have a pre-existing medical condition.
17Further, the applicant’s submissions do not direct me to a medical opinion documented by a health practitioner that establishes any of the pre-existing medical conditions claimed by the applicant will prevent him from achieving maximal recovery from his accident-related injuries if kept in the MIG. The Schedule requires this of him to meet his onus. Therefore, I find the applicant cannot meet the second part of the provision.
18Given the lack of supporting evidence, I am not persuaded by the applicant’s claims of a pre-existing medical condition and therefore decline to remove him from the MIG on this basis.
Psychological impairment
19I find the applicant has not demonstrated that he sustained an accident-related psychological impairment.
20The applicant submits that he complained of “elevated” depression and anxiety to Dr. Price on March 9, 2023, and that he was prescribed medication and referred to counselling to treat this psychological symptomology. The applicant also maintains that he earlier reported psychological difficulties to Dr. Wayne Coglan (chiropractor) on March 1, 2023, and ongoing symptomology to Dr. Bill Nikols (chiropractor) in August 2024. He relies on the psychological assessment completed by Dr. Konstantinos Papazoglou (psychologist) in May 2023 to show he sustained an adjustment disorder, a major depressive disorder, and a vehicle-related phobia as a result of the accident.
21The respondent argues that there is no mention of “elevated” depression and anxiety owing to the applicant’s accident-related injuries in the records completed Dr. Price on March 9, 2023. The respondent also suggests that the applicant’s disclosure of Dr. Price’s records is incomplete and comprises only a selection of consultations that benefit his position instead of the entire file from one-year pre-accident as he agreed to produce at the case conference. The respondent relies on the January 2024 section 44 assessment completed by Dr. T. Hunt (psychologist) to show the applicant is not psychologically impaired because of the accident and adds that the symptoms expressed to Dr. Papazoglou are not supported by the applicant’s medical records in evidence.
22I find that the mental health conditions assessed by Dr. Price in his note dated March 9, 2023, do not support psychological impairment owing to the January 2023 accident. Dr. Price assesses depression and anxiety relating to the applicant’s “family issues,” specifically, and makes no mention of accident-related complaints in this context. Dr. Price documents the applicant’s stressors as marital problems, a near-death experience involving the “crossfire” of a “gang fight,” and denials of work absence benefits. The applicant’s submissions do not point to evidence that establishes a nexus between these stressors and the accident. Nor, for that matter, do they point to persuasive evidence that establishes the “psychological restrictions” (i.e., stress and nervousness) that were documented just a week earlier by Dr. Coglan on the applicant’s OCF-23 treatment confirmation form, arise from factors other than the family issues disclosed by the applicant and contemplated by Dr. Price.
23In any event, I am persuaded that the applicant’s psychological condition had improved by July 18, 2023, when he reported to Dr. Price that he wanted to return to work, was feeling better, and had stopped taking the medication prescribed for his depression and anxiety because he felt he no longer needed it. Dr. Price assessed that the applicant’s family stress had improved, and there is no indication in Dr. Price’s records that he continued the applicant’s prescription to treat psychological difficulties. While I accept the applicant was prescribed “Tecta” at this time, I do not accept, as fact, the applicant’s submission that this medication was intended to manage psychological impairment. This is because there is no indication in Dr. Price’s records that he prescribed Tecta for this purpose. Rather, the applicant told Dr. Hunt he takes Tecta for acid reflux, which is supported, in my view, by Dr. Price’s assessment of the applicant’s heartburn in July 2023.
24Taken together, I find this evidence—in concert with an absence of complaints about anxiety or depression up to and including his next and last documented visit with Dr. Price more than a year later on August 15, 2024—diminishes the applicant’s claim of accident-related psychological impairment. I am persuaded that Dr. Price’s evidence corroborates Dr. Hunt’s January 2024 opinion that the applicant presented with symptoms consistent with an anxiety disorder, but owing to ongoing family-related issues independent of the accident. For example, the applicant mentioned to Dr. Hunt that leaving his family home in November 2023 was a “traumatic” event that continued to pose adjustment issues.
25Accordingly, I place less weight on the conclusions offered in Dr. Papazoglou’s May 2023 report. There is no indication of a specialist referral for psychological assessment in Dr. Price’s March 2023 notes or otherwise. I conclude from this that Dr. Price was satisfied the applicant’s symptomology was sufficiently managed with the medication he prescribed a couple months prior to Dr. Papazoglou’s assessment. In my view, this conclusion is supported by the applicant’s subsequent reports of improvement and discontinued use of medication for psychological symptomology.
26Further, I find Dr. Papazoglou’s assessment pre-dates the improvements reported to Dr. Price by the applicant in July 2018. So, while I accept the applicant was still experiencing psychological difficulties in May 2023, I find the probative value of Dr. Papazoglou’s analysis diminished within a couple of months after his report was completed. As well, the diagnoses offered by Dr. Papazoglou contemplate a variety of symptoms that are not corroborated by the records of Dr. Price in evidence, such as nightmares of the accident, cognitive function impairments relating to concentration and memory, and affective functional limitations. This too causes me to afford less weight to the opinions of Dr. Papazoglou.
27When I consider all these factors, I am persuaded that the applicant has not shown he sustained an accident-related psychological impairment that would warrant removal from the MIG.
Chronic pain
28I find the applicant has not shown he sustained accident-related chronic pain with functional impairment.
29To demonstrate he should be removed from the MIG, the applicant should show he has chronic pain syndrome, or that he sustained chronic pain with functional impairment that is more than sequalae from his accident-related injuries. The Tribunal has held that chronic pain syndrome—or pain that is a severe, debilitating condition accompanied by functional impairment and distinct from ongoing or recurring pain—qualifies as chronic pain [see, for e.g., 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT); 16-000438 v The Personal Insurance Company, 2017 CanLII 595151 (ON LAT); and Pham v. Coseco Insurance, 2021 CanLII 43546 (ON LAT)].
30The applicant submits he experienced pain in his head, shoulders, lower back, and right knee after the accident. He relies on the OCF-23 completed by Dr. Coglan in March 2023 to support his pain complaints. He explains that this pain has continued unabated despite undergoing physiotherapy treatment twice weekly at 101 Physio within a week of the accident. The applicant relies on the clinical notes and records of 101 Physio to show he still requires treatment to recover from his accident-related injuries and pain. The appellant adds that he turned to his family physician to treat his injuries in July 2023 because further benefits were denied by the respondent, and that the clinical notes and records of his family physician show his condition was improving with treatment. The applicant also relies on the report of Dr. Papazoglou and an OCF-18 treatment plan allegedly completed by Dr. Tajedin Getahun (orthopaedic surgeon) in May 2023 to show he sustained accident-related chronic pain that causes functional impairments.
31The applicant relies on 17-002907 v. Aviva Insurance Canada, 2019 CanLII 22223 ON LAT (“Aviva”) and C.G. v The Guarantee Company of North America, 2020 CanLII 40333 ON LAT (“Guarantee”) to show the Tribunal has accepted that chronic pain is “ongoing or recurrent pain, lasting beyond the usual course of acute illness of injury or more than 3 to 6 months, and which adversely affects the individual’s well-being.”
32The respondent does not directly address the applicant’s chronic pain complaints in its MIG submissions.
33I accept that the applicant experiences pain arising from his accident-related injuries. This is reflected in his reports to health care practitioners throughout the bulk of the medical evidence provided by the applicant. However, I am not persuaded that the applicant’s pain is anything more than mere sequalae because the evidence falls short of establishing chronic pain syndrome or pain that is a severe, debilitating condition accompanied by functional impairment and distinct from ongoing or recurring pain.
34The Tribunal has long accepted that a formal diagnosis of chronic pain syndrome is not required to remove an insured person from the MIG. However, it remains that the applicant’s submissions do not point to a diagnosis of chronic pain syndrome in this case. I place little weight on Dr. Papazoglou’s opinion that chronic pain is established by “persistent pain symptoms … beyond three months since onset…” because the evidence before me does not establish that chronic pain diagnoses fall within the scope of practice for psychologists. And while I recognize the applicant’s submissions cite Tribunal decisions that accept three to six months of pain constitutes a chronic condition, it remains that this pain should be accompanied by functional impairment to merit MIG removal, and I find little evidence of disability in this case.
35I accept that the additional comments section of OCF-18 treatment plan for orthopaedic assessment specifies that the applicant’s “impairments inhibits (sic) him to perform numerous functional activities …”. However, this is unpersuasive evidence of functional impairment. In my view, it is unclear whose medical opinion this is, and I do not accept, as fact, that it was offered by Dr. Getahun as submitted by the applicant. While I agree the OCF-18 proposes an orthopaedic assessment to be performed by Dr. Getahun, I find the OCF-18 was completed by Dr. Nikols.
36In any event, the applicant’s submissions do not point me to corroborating medical evidence that either Dr. Getahun or Dr. Nikols relied upon to support this opinion. It appears from the OCF-18 that Dr. Papazoglou’s report is the basis for this opinion, which I find diminishes the applicant’s position because I am not satisfied that Dr. Papazoglou, who is not a physician, is qualified to offer medical opinions on the applicant’s physical function.
37Further, the applicant’s submissions do not direct me to evidence in Dr. Price’s records of a severe, debilitating condition accompanied by functional impairment that is distinct from ongoing or recurring pain, nor of a physical examination conducted by any qualified health practitioner to assess accident-related impairment attributed to chronic pain. The only mention of pain in Dr. Price’s records is a vague July 2023 referral to discuss MSK (i.e., musculoskeletal) pains, and a subsequent August 2024 referral to “Bionmed” for orthotics with a complementary prescription for compression sleeves to address pain owing to what Dr. Price assessed as “flat feet.”
38I afforded little weight to the walk-in-clinic visits mentioned in the applicant’s submissions as evidence of chronic pain. The applicant acknowledges there are no walk-in clinic records in evidence to support his arguments. While I appreciate the applicant may have had difficulty recalling which clinics he visited, it remains that submissions are not evidence. Similarly, the clinical notes and records of 101 Physio do little to support the applicant’s chronic pain complaints because his submissions do not point me to evidence of impairment in these records.
39When I consider this evidence as a whole, I am persuaded that the applicant has not shown he sustained accident-related chronic pain with functional impairment that warrants MIG removal.
The applicant’s entitlement to the disputed OCF-18 treatment plans
40I find the applicant is not entitled to the OCF-18 treatment plans in dispute.
41To receive payment for an OCF-18 under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
42The parties agreed that $2,896.88 remained available in the MIG at the time of the case conference, and their submissions do not indicate this changed up to the date of the hearing. Given that I have decided the applicant remains in the MIG, I find it is unnecessary to determine whether the disputed OCF-18 treatment plans are reasonable and necessary.
Interest
43Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no benefits owing in this case, no interest is payable.
ORDER
44The applicant remains in the MIG and is not entitled to the disputed OCF-18 treatment plans. No interest is payable.
Released: October 10, 2025
Michael Beauchesne
Adjudicator```