Licence Appeal Tribunal File Number: 24-002209/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:
Joan Claire Guce
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR:
Estella Muyinda
APPEARANCES:
For the Applicant:
Shehaab Roshan, Counsel
For the Respondent:
Alanna Rozalowsky, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Joan Claire Guce, the applicant, was involved in an automobile accident on July 8, 2023, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Pembridge Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The 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 $2,460.00 for the cost of a psychological assessment, proposed by 101 Assessments in a treatment plan/OCF-18 (“plan”) dated August 4, 2023?
iii. Is the applicant entitled to $3,713.56 for physiotherapy services, proposed by 101 Physio in a plan dated July 14, 2023?
iv. Is the applicant entitled to $3,790.70 for psychological services, proposed by 101 Assessments in a plan dated September 29, 2023?
v. Is the applicant entitled to $2,460.00 for the cost of an orthopedic assessment, proposed by 101 Assessments in a plan dated September 29, 2023?
vi. Is the applicant entitled to $2,460.00 for the cost of a chronic pain assessment, proposed by 101 Assessment Centre in a plan submitted May 13, 2024?
vii. Is the applicant entitled to $2,460.00 for the cost of a neurological assessment, proposed by 101 Assessment Centre in a plan submitted May 3, 2024?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not met her burden in establishing that her accident-related injuries warrant removal from the MIG.
5As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
6The applicant is not entitled to interest or an award.
7This application is dismissed.
ANALYSIS
Application of the Minor Injury Guidelines
8I find that the applicant has not met her onus and as a result, she has failed to establish that her accident-related injuries fall outside the definition of a “minor injury,” as set out in s. 3(1) of the Schedule.
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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 person 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 condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
11In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
12The applicant submits that she should be removed from the MIG because she suffers from psychological impairments and chronic pain with ongoing functional restrictions a result of the accident.
13The respondent disagrees on the basis that the applicant did not provide medical records that substantiate the need for treatment beyond the MIG limits. Thus, the respondent submits that the applicant has not proven on a balance of probabilities that she should be removed from the MIG.
Chronic Pain
14I find that the applicant has not demonstrated that she suffers from chronic pain with a functional impairment that warrants removal from the MIG.
15The applicant submits that she visited 101 Assessments within weeks after the accident. In the Disability Certificate (OCF-3) dated July 24, 2023, Bill Nikols, chiropractor, confirms that the applicant experienced injury of muscle and tendon at neck level, sprain and strain of thoracic spine, muscle strain, shoulder region, dislocation, sprain and strain of joints and ligaments of shoulder girdle, lumbar spine and pelvis, sprain and strain of lumbar spine, headache, and other symptoms and signs involving cognitive functions and awareness, including reaction to severe stress, and adjustment disorders and nonorganic sleep disorders.
16Additionally, the applicant submits that prior to the accident she was fully functional in all activities and aspects of daily living, housekeeping and home maintenance, selfcare tasks, and her employment duties. The applicant states that following the accident, she is dependent on her mother, son and sister to complete the housekeeping tasks. The applicant states that she has not returned to work, she takes longer to complete tasks and finds it challenging to drive. The applicant states that she is no longer fully functional because of the accident.
17Further, the applicant relies on the clinical notes and records (CNR) referring to her injuries, made by Dr. Hwayue Liu, family physician. In the CNR dated August 18, 2023, Dr. Liu noted that the applicant had a history of migraines, and a throbbing headache that affected her sleep. He prescribed Tylenol (acetaminophen) and recommended that the applicant spend time in a dark room to treat the recurring headaches.
18Upon review of Dr. Liu’s CNR, I find that there is no mention of the applicant’s injuries resulting from the accident.
19The respondent submits that the applicant has not sustained a chronic pain condition. The respondent relies on the s.44 insurer’s examination (IE) of Dr. Rajka Soric, physiatrist, with a report dated January 24, 2024. In the report, Dr. Soric opined that the applicant sustained soft tissue or minor injuries which have now resolved. The respondent asserts that during her interview with the s.44 IE assessor, the applicant stated that she continues to be independent with respect to her self-care and housekeeping tasks. Further, the respondent submits that the applicant has not demonstrated that she meets at least three criteria for chronic pain as outlined in the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
20The six criteria laid out in the AMA Guides to assess chronic pain are as follows:
Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
Excessive dependence on health care providers, spouse, or family.
Secondary physical deconditioning due to disuse and/or fear–avoidance of physical activity due to pain.
Withdrawal from social milieu, including work, recreation, or other social contracts.
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.
Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours
21While the AMA Guides provisions about chronic pain are not incorporated in the Schedule, this Tribunal has consistently applied them as a useful interpretive tool for chronic pain. I agree with the respondent that the applicant has to meet at least three of the criteria as listed above, to assess her chronic pain. I am therefore not persuaded by the applicant alternative view of establishing chronic pain through three criteria that include, the persistent nature of the pain, reliance on multiple healthcare providers and their continuing recommendations.
22I find that the evidence submitted by the applicant does not support a finding that she has chronic pain with a functional impairment. Dr. Liu’s CNR do not include reports of accident-related pain. As a result, there is no evidence before me that the applicant has a chronic pain condition that warrants removal from the MIG.
23Additionally, the applicant pointed to the treatment plan by Dr. Nikols. I place no weight on the treatment plan because there is no corroborating evidence that support it as being reasonable and necessary.
24In light of the foregoing, I find that the applicant has not met her onus to demonstrate that she suffers from a chronic pain with a functional impairment that warrants removal from the MIG.
Psychological Injuries
25I find on a balance of probabilities the applicant has not demonstrated that she has a psychological injury that warrants removal from the MIG.
26The applicant submits that a psychological assessment conducted by Dr. Konstantions Papazoglou, psychologist, dated September 27, 2023, concluded that she was suffering from a psychological injury.
27Dr. Papazoglou opined that the applicant was suffering from bad moods, depression, vehicular anxiety, she was irritable, and she became socially isolated. Dr. Papazoglou diagnosed the applicant as having developed emotional/psychological problems consistent with diagnoses of adjustment disorder (with mixed anxiety and depressed mood) and specific (isolated) phobia (driving/passenger).
28The respondent submits that the applicant has not provided corroborating evidence or CNRs that mention or reference any psychological complaints after the accident. Additionally, the respondent states that Dr. Papazoglou’s report appears to be mainly based on the applicant’s self-reports.
29Upon review of the evidence, I put no weight on Dr. Papazoglou’s opinion because there is no objective corroborating or contemporaneous reporting to support that the applicant had psychological symptoms post-accident.
30The respondent relies on the section 44 IE report of Dr. Tatiana Dumitrascu, psychologist, dated January 24, 2024, to assert that the applicant suffered no psychological injury because of the accident. In her report, Dr. Dumitrascu opined that the applicant does not meet the DSM-5 criteria for a psychological disorder as a result of the accident. Dr. Dumitrascu, based on her psychological perspective, did not recommend treatment or assessment services for the applicant.
31I am not persuaded by the applicant because the evidence she submits about the psychological injury is not corroborated by other evidence before me, particularly from the applicant’s family physician. The applicant does not point me to any records of Dr. Lui showing that she has a psychological injury as a result of the accident. Thus, there is no record of a psychological injury in Dr. Liu’s CNRs. On that basis, I place more weight on the respondent’s evidence because it is consistent with the preponderance of medical evidence before me. Therefore, I am not persuaded by the applicant’s submissions that she had a psychological injury resulting from the accident because of the evidentiary shortcomings.
32Accordingly, I find that the applicant has not proven on a balance of probabilities that she has a psychological condition that warrants removal from the MIG. Thus, she remains in the MIG.
33The applicant remains in the MIG. Therefore, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
Interest
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been found to be owing, interest is not applicable.
ORDER
35The applicant has not met her burden in establishing that her accident-related injuries warrant removal from the MIG.
36As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
37The applicant is not entitled to interest or an award.
38This application is dismissed.
Released: November 13, 2025
Estella Muyinda
Adjudicator```