Licence Appeal Tribunal File Number: 24-013304/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:
Kenneth Bauer
Applicant
and
Nordic Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Sam Moini
APPEARANCES:
For the Applicant:
Ognjen Miketic, Counsel
For the Respondent:
Jonathan Charland, Counsel
Court Reporter:
Bruce Porter
Heard by Videoconference:
June 10, 2025
OVERVIEW
1Kenneth Bauer, the applicant, was involved in an automobile accident on June 14, 2021, 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, Nordic Insurance Company of Canada, 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 June 21, 2021, to present and ongoing?
iii. Is the applicant entitled to chiropractic services proposed by Meditecs Independent Medical Examinations (“Meditecs”) as follows:
$4,011.50 in a treatment plan/OCF-18 (“plan”) submitted February 1, 2024;
$4,943.84 in a plan submitted May 10, 2022;
$4,794.72 in a plan submitted January 17, 2024; and
$4,794.72 in a plan submitted June 10, 2024?
iv. Is the applicant entitled to the assessments proposed by Meditecs, as follows:
$4,011.50 for a psychological assessment, in a plan submitted February 1, 2024; and
$2,787.95 for an attendant care assessment, in a plan dated submitted February 1, 2024?
v. Is the applicant entitled to $2,034.00 for an income replacement benefit report prepared by Gurlal S. Gill, submitted June 18, 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 sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.
4The applicant is not entitled to an income replacement benefit.
5As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
6The applicant is entitled to $2,034.00 for an income replacement benefit report.
7The applicant is entitled to interest, as per s. 51 of the Schedule, for the income replacement benefit report.
8The applicant is not entitled to an award.
PROCEDURAL ISSUES
The respondents request to exclude photos of the applicant post accident and the accident itself
9At the hearing, the applicant wanted to introduce photos of the applicant and the accident that weren’t previously submitted in their brief.
10The applicant submitted these would be relevant as it shows some of the injuries the applicant had right after the accident.
11The respondent submitted that this evidence did not meet the deadlines set out in the case conference report and order (CCRO) and were never sent to the assessors before they could complete their reports.
12I allowed the evidence as I found the applicant would be prejudiced by not being able to introduce the photos. The respondent however I found would not be prejudiced because they would have been aware of the nature of the applicant’s injuries before the hearing. Though I allowed the evidence to be introduced, I notified the parties that the evidence would be subject to weight based on the submissions of the parties.
ANALYSIS
Minor Injury Guideline (MIG)
13I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 funding limit on treatment.
14Section 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.”
15An 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.
16The applicant argues he should be removed from the MIG based on chronic pain and a psychological impairment.
Chronic Pain
17I find, on a balance of probabilities, that the applicant has not demonstrated that he suffers from a chronic pain condition that warrants removal from the MIG.
18The applicant submitted an OCF-3 dated May 10, 2022, by chiropractor, Joseph Paton, which indicated suspected chronic/recurrent issues with mechanical thoracic-lumbar spine pain and gluteal sprain, mechanical cervical-thoracic spine with symptom referral to right shoulder, and right mechanical shoulder pain.
19The applicant was receiving chiropractic treatment from Spintec, which the applicant claims to have been helping him with his pain. The last treatment was on August 4, 2023. Clinical notes and records (CNRs) of the chiropractor mentioned to continue treatment as the applicant still complained of back, neck, and shoulder pain. The applicant testified to not being able to stand for long periods of time and is not able to lift heavy things. The applicant also testified that prior to the accident he did not experience any of these physical issues and was in good general health.
20The respondent relied on reports/assessments of Dr. Charanjit Sandhu, MD, Himadri Kaul, occupational therapist, and a function ability assessment of Danny Monck, kinesiologist. The respondent submitted that the applicant had many other medical issues post accident that were not related to the accident. The respondent submits that the CNRs of the applicant’s family doctor, Dr. Gino Pannozzo on January 14, 2023 which stated, “fifty four-year-old man states he tripped and fell and sustained a laceration to his left upper arm from a tent pole…”, CNRs of Halton Healthcare dated August 12, 2023 which diagnosed the applicant with acute pancreatitis, a renal ultrasound on May 14, 2023 which revealed an echogenic lesion at the upper pole of the right kidney, and records showing that the applicant was stabbed just above the left elbow, in January of 2023.
21Dr. Sandhu concluded that the applicant did not have any evidence of deconditioning or a significant impairment due to the accident, nor was there any indication of overdependence on health care providers or overuse of prescribed drugs. Dr. Sandhu concluded that the applicant presented with residual symptoms from myofascial sprains to his cervical spine, right shoulder, and thoracolumbar spine which would fall within the scope of the Minor Injury Guideline. Dr. Sandhu also concluded that his pre-accident function was good, and he was independent of all his activities of daily living.
22I find that the medical evidence does not support a finding that the applicant has chronic pain with a functional impairment as a result of the accident that warrants removal from the MIG. The applicant’s testimony and CNRs of Spintec showed that the applicant was improving after the treatments. The only other medical documentation regarding the accident presented by the applicant was from the family doctor, Dr. Pannozzo, on June 16, 2021, and Xray’s completed on June 17, 2021. Dr Pannozzo cited the applicant suggesting he injured his ribs on the right side and striking his head on the right rear passenger window. Dr Pannozzo asked the applicant to follow up with him in 1-2 weeks which he did not do. X-rays completed on June 17, 2021, of the chest and right ribs were deemed to be normal with no fractures. I gave more weight to Dr Sandhu’s assessment as it was more aligned with the medical evidence provided, and testimony from the applicant could not be corroborated with medical evidence. The applicant provided no other medical evidence other then that of medical issues that were not related to the accident.
23For these reasons, I find on a balance of probabilities, that the applicant does not have a chronic pain condition with a functional impairment that would warrant removal from the MIG.
Psychological Injuries
24I find that the applicant has not met his onus to demonstrate that he suffers from a psychological injury that would warrant removal from the MIG.
25The applicant testified that after the accident his psychological mindset had deteriorated. He testified that after the accident, he avoided the back seat of cars and only felt comfortable in a car if he was driving. The applicant also testified that he is homeless and living in a tent following the accident.
26The respondent relied on the report of Dr. Jason Bacchiochi, psychologist. Dr. Bacchiochi’s report suggests that there was no pre-existing psychological condition and any distress the applicant may have, is mainly due to his other medical conditions not related to the accident, mainly that he was diagnosed with kidney cancer post accident. Dr. Bacchiochi’s diagnosis was that the applicant did not suffer any accident-related psychological injuries that warrant a DSM-5-TR diagnosis or treatment. As such, Dr. Bacchiochi suggests that the applicant did not present with any psychological symptoms that would fall outside the definition of a Minor Injury Guideline.
27I am not persuaded by the applicant’s testimony or limited medical evidence. I find that the applicant’s testimony at the hearing is not corroborated by the medical evidence. I find that the applicant has not been diagnosed with any psychological conditions as a result of the accident, and although a diagnosis is not required, he has not been referred to any psychological treatments by any medical professional.
28I find on a balance of probabilities that the applicant sustained predominantly minor psychological injuries as a result of the accident and is therefore subject to the MIG.
Income Replacement Benefits Pre and Post 104 weeks
29I find that the applicant is not entitled to income replacement benefits (“IRBs”).
30To receive payment for pre-104 week 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.
31To receive payment for a post-104 week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
32The applicant testified that he was receiving EI prior to the accident and after the accident he was incarcerated before being released months later. The applicant testified to having worked as a bartender prior to the accident and being on EI, working at times 12 hours shifts. He claimed that his work required him to be on his feet constantly and to be lifting heavy things. The applicant stated that after the accident he was unable to perform these tasks, and his injuries made it impossible for him to perform tasks in the fields he had worked previously.
33The applicant also submitted that the pre-104 week test for IRBs is objective and not subjective.
34The respondent submitted that there was no medical or objective evidence presented other then one note from the family doctor which was followed with x-rays that were negative. The respondent also submitted that the applicant stopped receiving IRBs as of May 21, 2023, after he failed to attend a re-scheduled insurers examination. Other than the evidence mentioned above the respondent relied on a report from Dr. Sandhu dated February 3, 2025, which found that the applicant presented with residual symptoms from myofascial sprains to his cervical spine, right shoulder, and thoracolumbar spine. Dr Sandhu concluded that the applicant does not have any accident-related pathology or impairment of a sufficient scope that would prevent him from resuming his pre-accident employment.
35I agree, based on the evidence and testimony from the applicant, the essential tasks of the applicant’s employment were mainly to be on his feet for long periods of time and to be able to lift heavy things. I did not find the applicant’s testimony or limited medical evidence to show he suffered a substantial inability to perform the essential tasks of his employment as a result of his accident. Again, I gave more weight to Dr Sandhu’s report’s as it was more aligned with the medical evidence provided and testimony from the applicant could not be corroborated with medical evidence. Also, as stated above, other then a single family doctors CNR and a set of x-rays which showed to be all negative, there was no medical evidence to corroborate the applicant’s claim for pre-104 week IRBs other then that of medical issues not related to the accident. Therefore, I find that the applicant did not meet his onus to support that his injuries, due to the accident, resulted in a substantial inability to perform the essential tasks of that of his employment.
36Given that the post-104 week IRB test is more rigorous than the pre-104 week test, which the applicant has not met, the applicant does not satisfy the eligibility criteria for an IRB post the 104 week mark.
37The applicant has the onus of proving his entitlement to IRBs. I find that the applicant has not demonstrated on a balance of probabilities that he has met his onus to prove entitlement to IRBs.
38As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
IRB Report
39The applicant is entitled to $2,034.00 for an IRB report.
40Section 7(4) of the Schedule states, the insurer shall pay an expense incurred by or on behalf of an insured person for the preparation of a report for the purpose of calculating the person’s income from employment or self-employment if all of the following conditions are satisfied:
The insured person is applying for an income replacement benefit under this Part that is based on the employment or self-employment considered in the report.
The report is prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004.
The expense is reasonable and necessary for the purpose of determining the insured person’s entitlement to an income replacement benefit.
41The respondent submitted this report was not reasonable and necessary as the quantum was straight forward and simple to calculate. The respondent also submitted that the report was premature and not requested by the respondent.
42The applicant submitted that the report was necessary to calculate the IRB being sought. The applicant also submitted that the respondent is responsible to pay for the report even if it was not requested by them.
43I agree with the applicant that this report is reasonable and necessary and meets the criteria mentioned above because the report was required to determine the IRB quantum. Though the respondent may have not asked for the report, the applicant submitted it was required to calculate quantum of IRB. Section 7(5) of the Schedule also states the amount being sought to prepare this report should not exceed $2,500.00, which this report does not. Therefore, I find on a balance of probabilities that this report to be deemed reasonable and necessary.
Interest
44The applicant is entitled to interest, as per s. 51 of the Schedule.
Award
45The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
46There are no benefits payable in this case other then than an IRB report. The applicant has not made submissions that the respondent’s conduct was unreasonable. Therefore, I find that the applicant is not entitled to an award.
ORDER
47The applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.
48The applicant is not entitled to an IRB.
49As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
50The applicant is entitled to $2,034.00 for an IRB report.
51The applicant is entitled to interest, as per s. 51 of the Schedule.
52The applicant is not entitled to an award.
Released: November 17, 2025
Sam Moini
Adjudicator