Grace Nakatani v. The Dominion of Canada General Insurance Company, 2025 CanLII 108586

Nakatani v. The Dominion of Canada General Insurance Company

Citation: Nakatani v. The Dominion of Canada General Insurance Company, 2025 ONLAT 23-015751/AABS

Licence Appeal Tribunal File Number: 23-015751/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:

Grace Nakatani

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Rozana Karim, Paralegal

For the Respondent: Samantha Nguyen, Counsel; Alfred Cheng, Counsel

HEARD: By way of written submissions

OVERVIEW

1Grace Nakatani, the applicant, was involved in an automobile accident on May 18, 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 the respondent, The Dominion of Canada 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 an income replacement benefit in the amount of $400.00 per week from May 18, 2023 to date and ongoing?

iii. Is the applicant entitled to $130.88 ($1,158.33 less $1,027.45 approved) for chiropractic services, proposed by Marjanossadat Sajadi, chiropractor, in a treatment plan dated August 8, 2023?

iv. Is the applicant entitled to the services and assessment proposed by E Clinic United Health as follows:

1. $1,895.00 for a psychological assessment, in a treatment plan dated August 14, 2023; and

2. $3,707.20 for psychological services, in a treatment plan dated November 21, 2023?

v. Is the applicant entitled to $2,518.88 for chiropractic services, proposed by Keon Kirlew, chiropractor, in a treatment plan dated September 27, 2023?

vi. Is the applicant entitled to $2,825.00 for a chronic pain assessment proposed by Q Medical, in a treatment plan dated February 5, 2024?

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

RESULT

3The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG;

4The applicant is not entitled to the treatment plans for chiropractic services, a psychological assessment, psychological services or a chronic pain assessment.

5The applicant is entitled to an IRB at the rate of $400.00 per week from June 16, 2023 to August 6, 2023, plus interest.

ANALYSIS

Background

6On May 18, 2023, the applicant was in the lunchroom of her workplace when a vehicle crashed through the wall of the lunchroom. She was not physically struck by the third-party vehicle, but a heavy object fell onto her left foot and a table was pushed into her abdomen.

7At the time of the accident, the applicant was employed at Canadian Clinical Cannabinoids Inc. as a production worker. Her job was mostly sedentary. The SOAP note dated May 23, 2023, notes that she “works in a cannabis factory; usually sits most of the time.” She claims that as a result of the injuries she sustained in the accident that she was unable to return to work.

8As of July 2023, the applicant was enrolled in a full-time Personal Support Worker (“PSW”) program with Computek College which she completed on February 23, 2024. As a part of her program, she completed a nine-week placement as a PSW between December 18, 2023 and February 22, 2024, logging 256 hours in PSW shifts. This is confirmed in the Computek records.

9As of June 5, 2024, the applicant started working as a PSW with Amica Senior Lifestyles.

The applicant sustained predominantly minor injuries as defined under the Schedule

10I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

11Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

12An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

13In this matter, the applicant submits that she should be removed from the MIG because she suffers from chronic pain and a psychological condition.

a. The applicant is not removed from the MIG on the basis of chronic pain

14I find that the applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.

15Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

16The applicant submits that she should be removed from the MIG as she suffers from chronic pain as a result of the accident. She submits that she experiences chronic pain in her left leg, left foot, neck, shoulders and back. She argues that her persistent pain has reduced her physical endurance and prevents her from resuming normal work duties or household responsibilities. She claims that she requires assistance with basic self-care tasks, such as dressing and wearing footwear, and her reduced mobility has significantly impacted her quality of life. The applicant relies upon the Clinical Notes and Records (“CNRs”) of Dr. Gregory Chin, family physician; the treatment plans prepared by E-Clinic United Healing; the Insurer’s Examination (“IE”) Physiatry reports of Dr. Abdul Khan, physiatrist, dated November 6, 2023 and January 29, 2024; and the IE Functional Abilities Evaluation report of Dr. Paul Cha, chiropractor, dated November 6, 2023.

17The respondent submits that the applicant has been diagnosed with only soft tissue injuries. The respondent submits that Dr. Chin diagnosed the applicant with minor soft tissue injuries, and she visited Dr. Chin on numerous occasions with unrelated complaints. The respondent further submits that the applicant has never been diagnosed with chronic pain and there is no mention of chronic pain in any of the records relied upon by the applicant. The respondent argues that the applicant has not proven that she suffers from at least three of the six criteria in the AMA Guides.

18The respondent relies upon the IE reports of Dr. Khan, dated November 6, 2023, January 29, 2024 and October 7, 2024, that confirm the applicant’s diagnoses of sprain/strain of the cervical and lumbar spine and left foot, which are considered “minor” injuries. The respondent further relies upon the medical report signed by Dr. Chin on August 26, 2023, which was prepared for the purposes of the applicant’s PSW course. On Page 6 of this report, Dr. Chin checked off “yes” that the applicant met all of the physical demands on the “Check List of Essential Physical Abilities” for the purposes of physically clearing the applicant for the PSW program. The respondent states that the applicant began engaging in a physically demanding PSW course only three months after the accident despite alleging ongoing physical pain which is not supported by the medical evidence.

19I find that the applicant has not demonstrated that she suffers from a chronic pain condition as a result of the accident. My reasoning is based on the following findings.

20I find that ongoing pain alone is insufficient to remove the applicant from the MIG, as the pain must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. I find that the applicant has not proved on a balance of probabilities that her ongoing pain was of a significant level or was accompanied by some functional impairment or disability.

21I find the evidence supports that the applicant was able to participate in a physically demanding 28-week full-time PSW course beginning on July 31, 2023. I find that she was cleared to participate in this program by Dr. Chin which is supported by the checklist that he completed on August 6, 2023. Specifically, the checklist included, “lifting up to 25 kg, carrying and shifting weight up to 25 kg, pushing and pulling up to 25 kg, all mobility tasks (including bending, crouching, kneeling, sitting, standing possibly for long periods, pushing and pulling, and reaching) and walking. The check list of essential physical abilities indicates that she was to participate in laundry, groceries, use of equipment (lifts, vacuum), client transfers and positioning, and housekeeping duties. I therefore do not accept the applicant’s submissions that her persistent pain prevented her from engaging in household responsibilities or that she required assistance with basic self-care tasks. This is in direct contravention with Dr. Chin’s opinion that she was physically cleared to participate in the physically demanding PSW course.

22I find that the applicant’s accident-related impairments fall squarely within the definition of minor injuries under the Schedule. I find upon review of the CNRs of Dr. Chin, that he diagnosed the applicant with a lumbar strain and a strain/contusion of the left foot. He notes on May 30, 2023, that the applicant is able to do cooking, washing dishes and some cleaning. The Disability Certificate (“OCF-3”), prepared by Dr. Vince De Luca, dated June 16, 2023, also confirms that the applicant’s injuries are listed as sprain and strain injuries.

23I further find that there is no actual diagnosis of chronic pain or chronic pain syndrome in the medical records relied upon by the applicant. While a formal diagnosis of chronic pain is not required, it is still incumbent on the applicant to provide evidence of the ongoing and recurrent pain that she experiences as a result of the accident. I find that the applicant has not provided sufficient evidence to support that she has ongoing pain or a corresponding functional impairment as a result of the accident. Therefore, I do not find that the applicant suffers from chronic pain.

24Finally, I find that the applicant’s submissions do not engage with any of the six criteria under the AMA Guides. Indeed, while the applicant may have ongoing pain, I do not find that her pain causes the type of functional impairment that would warrant removal from the MIG, as her accident-related prescription summary has not been provided, she has not been referred to any specialists by her family doctor, she identifies limited functional issues with her daily activities and she participated in a full-time PSW program beginning on July 31, 2023. In his IE reports, Dr. Khan confirmed that the applicant sustained soft tissue injuries that would not prevent maximal medical recovery under the MIG. On the evidence, I see no reason to interfere with Dr. Khan’s opinion and it is not rebutted by any other medical opinion.

25For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident and therefore she is not removed from the MIG on this basis.

b. The applicant is not removed from the MIG on the basis of a psychological condition

26I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the accident that warrants removal from the MIG.

27The applicant submits that on July 14, 2023, she reported anxiety when in a car since the accident to Dr. Chin. Dr. Chin’s impression was that she suffered anxiety and post-traumatic stress disorder (“PTSD”). The applicant submits that the treatment plans prepared by E-Clinic further note her emotional injuries. The applicant submits that the psychological assessment report completed by Dr. Harinder Mrhar, psychologist, dated October 20, 2023, supports a diagnosis of major depressive episode and other specified trauma and stressor-related disorder, with features of PTSD and situational phobia. She further submits that the IE psychological assessment report of Dr. David Direnfeld, psychologist, dated November 6, 2023, supports that she suffers moderate to severe levels of depression and anxiety, characterized by persistent low mood, loss of interest in previously enjoyed activities, feelings of hopelessness, irritability, and heightened stress levels. She further endorsed symptoms consistent with PTSD.

28The respondent submits that the applicant does not suffer a psychological condition as a result of the accident. It relies upon the findings of Dr. Direnfeld in his psychological IE report, psychological paper review report and psychological addendum report which concluded that there was a lack of objective evidence to support an accident-related impairment. Dr. Direnfeld further found that the Personality Assessment Inventory (“PAI”) results were invalid, which suggests that the applicant responded inconsistently to a number of items. The respondent submits that there were numerous inconsistencies found in the applicant’s self-reporting to Dr. Direnfeld during her psychological assessments. It notes that she reported that she gets panic attacks “every time” she rides in a vehicle but also stated that she feels safe when she rides as her husband’s passenger. In addition, she reported that she feels depressed because she cannot work “or do anything” and that she was spending her days doing “nothing, just sitting and thinking”. The respondent argues that the applicant failed to disclose that she was engaged in a PSW course at this time.

29The respondent further submits that the psychological assessment report was completed by Devanshi Sharma, psychological associate, under the supervision of Dr. Mrahar. It submits that Ms. Sharma, makes no reference to the documentation she reviewed, while Dr. Direnfeld was provided with the applicant’s complete records to review and base his conclusions on. It further submits that the applicant inconsistently reported to Dr. Direnfeld and Ms. Sharma, respectively. For example, the applicant reported to Ms. Sharma that post-accident her social life has diminished, while she reported to Dr. Direnfeld that she continued to speak and visit with her work friends multiple times a week and she continued to visit her husband’s relatives post-accident.

30The respondent also submits that the applicant only once mentioned accident-related psychological complaints to Dr. Chin during a visit on July 14, 2023, where she complained of vehicular anxiety. It submits that the applicant was not prescribed any medication for her psychological complaints, and she has not been referred for any psychological treatment by Dr. Chin.

31I find that the applicant has provided insufficient evidence to support that she sustained an accident-related psychological condition that would remove her from the MIG.

32I find upon review of the CNRs of Dr. Chin, that the only mention of any psychological issues is in the CNR dated July 14, 2023, where she reported anxiety when in a car. I find that there is no further mention of any psychological complaints to Dr. Chin in the records provided despite seeing him on multiple occasions.

33I find that the psychological report of Ms. Sharma lacks evidentiary weight. I find that the applicant’s lack of mention of her involvement in a full-time PSW course at the time of the assessment undermines the credibility of her self-reports. In addition, the applicant’s report that she is not able to engage in any strenuous physical activities and that her husband now does all housekeeping tasks, is inconsistent with the requirements of her PSW program. I further agree with the respondent that her report to Ms. Sharma that her social activity is diminished is inconsistent with her reports to Dr. Direnfeld that she speaks to her family every day and visits family monthly. I find that the findings of Ms. Sharma cannot be accepted due to the multiple inconsistencies reported by the applicant within the assessment.

34I find the IE reports of Dr. Direnfeld, persuasive, and find that there is insufficient objective evidence of an accident-related psychological diagnosis. Dr. Direnfeld concluded that the results of the psychometric testing suggested that the applicant responded inconsistently to a number of items and therefore her test results are invalid. I further find that the applicant explained that due to the accident she cannot work or “do anything” right now, which is why she feels depressed. She states that she spends most of her time at home isolated. She claims that “these days, most of her time is spent doing “nothing”, just sitting and “thinking.” I find that these statements are inconsistent with the evidence that the applicant was in a full time PSW course at the time of the assessment. Again, I find that this undermines the credibility of her self-reports.

35For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the accident and therefore she is not removed from the MIG on this basis.

The applicant is not entitled to the treatment plans in dispute

36As I have found that the applicant continues to be within the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans for chiropractic services, a psychological assessment, psychological services or a chronic pain assessment.

The applicant is not entitled to an Income Replacement Benefit (“IRB”)

37I find that the applicant is entitled to an IRB from June 16, 2023 to August 6, 2023 at the rate of $400.00 per week.

38Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. The applicant bears the burden of proving, on a balance of probabilities, that she meets the test.

39According to the Employer’s Confirmation Form, dated June 8, 2023, the applicant was employed full-time as a production worker at Canadian Clinical Cannabinoids Inc. from October 17, 2022 to May 18, 2023. Her gross income is listed as week 1 - $655.88; week 2 - $701.25; and week 3 - $528.00. Part 6 of the OCF-2 did not provide a job description.

40According to the Functional Abilities Evaluation report, dated November 6, 2023, the applicant described her pre-accident employment duties as follows. She stated that she rotated between three different stations, all of which were sedentary at a worktable. She denied having any lifting or carrying demands. The first station involved weighing paper cones pre-filled with marijuana and removing or adding product from the cones as needed. Her supervisor brought and took away the boxes containing the cones. The second workstation involved closing the paper cones then putting them in small containers. The third station involved packing containers into small boxes.

41The applicant claims that she is entitled to an IRB from May 18, 2023 to date and ongoing. She relies upon the CNRs of Dr. Chin dated June 14, 2023 and July 14, 2023, that indicate that she was unable to work due to her injuries, and the Disability Certificate, dated June 16, 2023 that states she suffers a substantial inability to perform her pre-accident employment duties. She further submits that her physical injuries, particularly her left foot contusion and lumbar strain, prevent her from meeting the essential requirement of wearing safety shoes at work, while her psychological impairments and chronic pain present significant barriers to recovery and reintegration into her pre-accident employment.

42The respondent submits that the applicant has not met her onus of proving entitlement to an IRB as claimed. The respondent relies upon the IE assessments with Dr. Khan, Dr. Cha and Dr. Direnfeld, dated November 6, 2023, which concluded that she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment. It further relies upon the additional paper review reports and addendums completed by Dr. Khan and Dr. Direnfeld dated January 29, 2024 and October 7, 2024, which reviewed further documentation and concluded that their opinions remained unchanged. The respondent submits that based on the November 6, 2023 IE reports, it advised the applicant by letter dated November 14, 2023 that she was not entitled to an IRB.

43The respondent submits that the applicant reported that her pre-accident job was mostly sedentary. The applicant started a PSW program approximately two months post-accident on July 29, 2023, in order to train for a more physically demanding job. It relies upon the medical report dated August 6, 2023, signed by Dr. Chin, that indicates that she met all of the physical demands required of her PSW course which included lifting, carrying, pushing, pulling, bending, crouching, standing for long periods of time, reaching, walking and sitting. The respondent submits that she was halfway through the PSW course when she underwent the IE assessments in October 2023 to assess her entitlement to IRBs, yet she did not disclose her involvement in this program to any of the assessors.

44I find that pursuant to s. 36(3) of the Schedule, the applicant is only entitled to an IRB after a completed OCF-3 is submitted. I find that the applicant submitted her OCF-3 to the respondent on June 16, 2023. Therefore, her entitlement to IRBs would begin on this date.

45I find that the prescription note of Dr. Chin dated June 14, 2023 states that the applicant is unable to work due to her injuries from the accident and that she will be off work indefinitely. I further find that the OCF-3 dated June 16, 2023, supports that the applicant suffers a substantial inability to perform her pre-accident employment duties. However, I find that the applicant has not addressed the respondent’s submissions that on July 31, 2023 she began a full time PSW course. She further has not provided a reply to the respondent’s submissions that the August 6, 2023 form completed by Dr. Chin confirms that she does not suffer any physical impairments. I therefore find that as of August 6, 2023, the applicant has not met her onus of proving that she suffers a substantial inability to perform her pre-accident employment duties.

46I find that with respect to the applicant’s submission that she was unable to wear the safety shoes that she was required to wear at her pre-accident employment, she has not provided sufficient evidence to support that she was unable to wear the shoes. I find that she has not provided any particulars or documentation which addresses the shoes or why she could not wear them post-accident.

47I further find as stated above, that the applicant’s failure to report to the IE assessors that she was involved in a full time PSW course undermines her claim to an IRB and the complaints she made to the IE assessors. I reiterate my findings above that I do not find that the applicant has proven on a balance of probabilities that she suffers from chronic pain or a psychological impairment as a result of the accident and therefore she is not entitled to an IRB on this basis.

48For the reasons outlined above, I find that the applicant is entitled to an IRB from June 16, 2023 to August 6, 2023, at the rate of $400.00 per week.

Interest

49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to an IRB from June 16, 2023 to August 6, 2023, interest is payable on the amount owing.

ORDER

50For the reasons outlined above, I find:

i. The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute for chiropractic services, a psychological assessment, psychological services or a chronic pain assessment;

iii. The applicant is entitled to an IRB in the amount of $400.00 per week from June 16, 2023 to August 6, 2023, plus interest