Thiracha v. Intact Insurance Company, 2025 CanLII 111755

Citation: Thiracha v. Intact Insurance Company, 2025 CanLII 111755

Licence Appeal Tribunal File Number: 23-014814/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.

Parties

Between:

Charlie Thiracha Applicant

and

Intact Insurance Company Respondent

Decision

Adjudicator: Greg Witt

Appearances:

For the Applicant: Sareena Samra, Counsel

For the Respondent: Thomas Petrella, Counsel

Heard: In Writing

OVERVIEW

1Charlie Thiracha, the applicant, was involved in an automobile accident on October 22, 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, Intact 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 limit?

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from February 29, 2024 to ongoing?

iii. Is the applicant entitled to $4,217.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated January 11, 2023?

iv. Is the applicant entitled to $3,897.20 for chiropractic services, proposed by UHeal Rehab Centre in a treatment plan dated January 11, 2023?

v. Is the applicant entitled to $2,200.00 for a Psychology Assessment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan dated November 11, 2022?

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

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

RESULT

3The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline;

4The applicant is not entitled to Income Replacement Benefits;

5As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary; and

6The applicant is not entitled to interest or an award.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

7The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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.”

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

9Section 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 submits he suffers from a chronic pain impairment of his right leg and back, which is not included in the definition of a minor injury. The applicant further submits he suffers from psychological injuries which are not included in the definition of a minor injury. The respondent submits that the applicant has failed to establish that his injuries are not predominately minor and that the injuries can be treated within the confines of the MIG.

Psychological Impairment

12I find that the applicant has not established that he has a psychological condition that warrants removal from the MIG.

13In order to be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not post-accident sequelae.

14The applicant claims he suffers from psychological impairments resulting from the accident. The applicant relies on the OCF-18 dated November 11, 2022 prepared by Dr. Bruce Cook, the treating psychiatrist, where Dr. Cook states the applicant reported he was experiencing flashbacks, nightmares, and intrusive thoughts of his accident leading to anxiety that seem to result in panic attacks. Dr. Cook further identified the applicant reported he was experiencing some appetite and sleep disturbance, feelings of dysphoria, apathy, amotivation, and experiencing anhedonia. The applicant also relies on Dr. Richard Tavares, chiropractor, to support his assertion of psychological impairment because Dr. Tavares opined on January 25, 2023 and July 24, 2023 that the applicant was experiencing psychological symptomatology including sleeping difficulty, nightmares, nervousness, anxious and emotional shock.

15The respondent relies on the March 2, 2023 Psychology Report of Dr. Zubina Ladak, psychiatrist. Dr. Ladak concluded that even though the applicant had a second accident in November 2022 that contributed to the worsening of any symptoms that may exist, the applicant’s symptoms were subclinical and did not warrant a formal diagnosis and as such MIG removal was not warranted.

16The respondent further submits that despite the applicant’s claim, as referenced in the Psychology Paper Review completed by Dr. Fabio Salerno, psychologist, the applicant led insufficient specific documentary evidence to substantiate these claims, including no Clinical Notes and Records (CNRs) from any independent medical professionals and instead relies exclusively on the treatment providers as proof of the applicant’s accident-related psychological impairment. I further find the applicant did not report to Dr. Foad Farizi, family physician, that he was experiencing psychological symptoms as a result of the accident.

17I find the applicant has not provided persuasive evidence that he suffers from a psychological impairment as a result of the accident that would remove him from the MIG. I find the psychological assessment prepared by Dr. Ladak to be credible and an accurate assessment of the applicant’s psychological condition because Dr. Ladak is a psychiatrist who is qualified to render this opinion. While I accept Dr. Tavares noted various symptoms, in my view it is outside of the scope of practice of a chiropractor to make a diagnosis based on these observed symptoms.

18For the above reasons, the applicant has not met his onus to prove on a balance of probabilities that he has accident-related psychological impairments that warrant removal from the MIG.

Chronic Pain – Leg and Back Impairment

19I find that the applicant does not suffer from chronic pain with a functional impairment that warrants removal from the MIG.

20For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that their accident-related injuries had a detrimental impact on their functionality. More than reports of lingering pain are required to establish to what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. To enhance credibility, this opinion must be supported by medical evidence that shows the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

21The applicant submits that he suffered ongoing bilateral leg pain and back pain as a result of the accident. The applicant submits that hospital records from Humber River Hospital dated October 23, 2022 identify that the applicant reported right leg pain, back pain, and lower back discomfort. During an appointment with Dr. Patrick Wong, Family Physician, on November 1, 2022, the applicant reported back and leg pain where he was unable to stand for more than 30 minutes and unable to walk quickly. Dr. Wong recommended x-rays/ultrasound of bilateral knees, physiotherapy and RMT. The x-ray diagnosed mild degenerative changes to both hips with joint space narrowing and marginal lipping. To substantiate his physical accident-related impairments, the applicant only relies on the Disability Certificate (“OCF-3”) dated October 26, 2022, prepared by Dr. Ahmed Afifi, physiotherapist. Dr. Afifi indicated that the applicant is substantially unable to perform the essential tasks of his employment as a result of the accident.

22The respondent submits that the applicant’s injuries are minor as the applicant sustained, at most, minor soft tissue injuries as a result of the accident. With respect to the issue of chronic pain, the respondent argues that the applicant relies on the OCF-3, his self-reports of pain and functional limitations noted in the comments sections of the various OCF-18s, and the progress notes prepared by his treating facility - and these are insufficient.

23I agree with the respondent. The OCF-3 form, in and of itself, does not establish that an applicant has sustained a non-minor injury. The form serves primarily as an application tool through which a health practitioner identifies and reports the injuries claimed at a given point in time for the purpose of seeking health benefits. It is not intended to function as a comprehensive or definitive assessment of the applicant’s medical condition. While the OCF-3 may assist in outlining the nature of the reported impairments, its evidentiary weight is limited in the absence of supporting objective medical documentation. Accordingly, the existence of an OCF-3 alone is limited in determining the classification of seriousness of an injury without corroborating medical evidence.

24I find that the applicant did not meet the onus required to prove he has chronic pain with a functional impairment. First, despite references within the applicant’s submissions with respect to chronicity of his pain, the applicant fails to provide any submissions specifically related to a chronic pain diagnosis, nor is the applicant referred to or submitted evidence from a chronic pain specialist.

25I also find the applicant did not lead sufficient evidence to prove he suffered from a functional impairment. I am persuaded by the diagnoses of Dr. Wong and reporting of the applicant himself. In this regard, I note that within the CNR’s of Dr. Wong on December 1, 2022, Dr. Wong reported that the applicant’s low back pain and bilateral leg pain had an overall improvement, and the applicant reported at that time that he felt well enough to work.

26The evidence submitted by the applicant from Dr. Richard Tavares dated January 25, 2023, states there is ongoing pain that started after the accident; however, in reviewing the CNR’s of Dr. Tavares, there is no mention of a “chronic pain” diagnosis and the applicant does not lead any evidence or make any submissions as to why there is an absence of a chronic diagnosis. Also, upon review of the clinical notes in evidence, I find that the applicant did not report that the back and leg pain is from the subject accident. Since there was a second motor vehicle accident in November 2022, and the CNR’s do not distinguish which accident the pain is from, I find the applicant has not led sufficient evidence to show the pain, if chronic or otherwise, is as a result from the subject accident.

27Further, in the evidence before me, the respondent references the American Medical Association’s Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) (“AMA Guides”), while the applicant makes no reference to the AMA Guides. The AMA Guides’ six criteria for chronic pain were not incorporated into the Schedule; however, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes in the absence of a diagnosis.

28I find the applicant does not meet three of the six criteria for chronic pain as identified in the AMA Guides, which state that at least three of the enumerated criteria must be met for a diagnosis of chronic pain. The respondent submits and I agree that the applicant has not demonstrated: a dependence on prescription drugs; the applicant has not provided evidence that he is reliant on any health care providers or others, as demonstrated by his infrequent appointments to a physician, nor has the applicant been referred to any specialists; there is no evidence of deconditioning, as the insurer’s examination assessments reveal full strength; there is no evidence of social withdrawal or pre and post accident function, as the applicant reported on December 1, 2022 that he felt well enough to work; and there is no evidence that the applicant suffers any psychosocial or psychological symptoms.

29In sum, based on the evidence before me, I find on a balance of probabilities that the applicant has not met his onus to establish he has chronic pain with a functional impairment that warrants removal from the MIG.

Income Replacement Benefits

30I find the applicant is not entitled to an IRB for the following reasons.

31To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

32The applicant submits that he is entitled to an IRB in the amount of $400.00 per week for the period of February 29, 2024, to date and ongoing.

33It is the applicant’s position that at the time of the accident he was a cook at Woodbine Entertainment Group (“Woodbine”) and following the accident he was unable to return to his job.

34The applicant relies on the OCF-3 prepared by Dr. Ahmed Afifi on October 26, 2022. The OCF-3 prepared by Dr. Afifi opined that the applicant suffered an injury causing him an inability to return to his pre-accident employment for a period beyond 12 weeks.

35The applicant also relies on the OCF-18 notes prepared by Dr. Richard Tavares dated January 25, 2023, which state the applicant has difficulty with sustained postures, standing, walking, sitting, lifting, pushing/puling, bending & overhead reaching and these injuries impact the applicant’s ability to return to work.

36The respondent relies on the report from Dr. Salerno dated February 5, 2024, which notes the applicant returned to work one month after the accident. Dr. Salerno further notes the applicant self-reported he only stopped work in October 2023 for a seasonal layoff and stated: “when they call I will go back.”

37The respondent also relies on the report from s. 44 assessor Dr. Ahmed Mian, Family Physician, dated February 20, 2024, who also notes the applicant reported he was laid off from work. Dr. Mian opines that he would not expect the applicant to suffer from a substantial inability to complete the tasks of his job and that from a physical perspective he should be able to return to his line of work as a cook.

38The respondent submits that the applicant did not meet the burden to show the applicant was laid off due to his inability to perform his employment tasks as a result of the accident. Rather, the evidence before the Tribunal suggests that the applicant continued to work for Woodbine post-accident until he was laid off in October 2023, and was only laid off at that time due to a shortage of work. There is no evidence to suggest that the lay off was related to the impairments the applicant suffered as a result of the accident.

39In my view, the applicant has no made specific submissions on either how or why his accident related impairments prevented him from completing the essential tasks his employment, or that he is substantially unable to perform them. Rather, the preponderance of evidence before me indicates that he returned to work shortly after the accident and then stopped working in October 2023, more than a year after the accident, because of a seasonal layoff. In this regard, I place weight on the report from Dr. Salerno where the applicant self-reported that he returned to work approximately one month following the accident. I also place weight on the report of Dr. Mian who similarly notes the applicant reported he was laid off work. In sum, I find that the weight of the evidence suggests the applicant is currently off work, not due to injuries suffered through the accident, but because he was laid off due to a shortage of work.

40For the reasons set out above, I am not persuaded on a balance of probabilities that the applicant has a substantial inability to perform the essential tasks of his employment as a result of the accident. Therefore, he is not entitled to an IRB.

41As the applicant is in the MIG, an analysis on whether the treatment plans are reasonable and necessary is not required.

Award

42The applicant seeks an award under section 10 of Regulation 664. I find that no benefits have been unreasonably withheld or delayed, and therefore no award is payable.

Interest

43Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

44The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to an IRB;

iii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary;

iv. The applicant is not entitled to an award; and

v. The applicant is not entitled to interest.