Opoku v. Belair Insurance Company Inc., 2025 CanLII 119992

Citation: Opoku v. Belair Insurance Company Inc., 2025 CanLII 119992

Licence Appeal Tribunal File Number: 24-001978/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:

Lydia Opoku

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Swetlana Vinokur, Paralegal

For the Respondent: Callum Micucci, Counsel

HEARD: By way of written submissions

OVERVIEW

1Lydia Opoku, the applicant, was involved in an automobile accident on April 20, 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, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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?
2. Is the applicant entitled to the following treatment plans ("OCF-18s"), proposed by Knead Wellness: i. $2,200.00 for psychological services dated August 10, 2022; ii. $2,460.00 for other goods and services of a medical nature dated September 23, 2022; iii. $2,625.00 for physiotherapy services dated October 11, 2022; iv. $4,534.77 for psychological services dated October 11, 2022; v. $1,982.00 for other goods and services dated October 14, 2022; vi. $2,625.00 for physiotherapy services dated July 18, 2023; vii. $2,460.00 for other goods and services of a medical nature dated November 9, 2023; and viii. $2,739.41 for psychological services dated November 9, 2023?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant's injuries are minor and subject to treatment within the $3,500 MIG limit. She is not entitled to the benefits in dispute or interest.

PROCEDURAL ISSUES

4The respondent opposed the applicant's reliance on updated clinical notes and records ("CNRs") of Dr. Samuel, her family doctor from January 9, 2023, to May 9, 2024, and Dr. Sethi from December 2023, which was first served on the respondent with the applicant's written submissions. It submits that the applicant's late service of these records was in non-compliance with the Tribunal's case conference report and order and that it was prejudiced by the late service of these records because it was unable to respond to it. The applicant did not submit reply submissions or provide any explanation for why these records were not obtained and served on the respondent in accordance with the Tribunal's order. However, I find that the late served records had little bearing on the outcome of this matter. Consequently, I find it unnecessary to address this issue further. In addition, the respondent addressed the late served evidence in its submissions and as a result I find there was little prejudice.

ANALYSIS

The applicant's accident-related impairments fit within the MIG

5Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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."

6An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.

7The applicant argues that she should be removed from the MIG because she sustained a concussion as a result of the accident and suffers from post-concussion syndrome. She also submits that she has been diagnosed with chronic pain syndrome and a psychological impairment as a result of the accident which warrants removal from the MIG. In support of her position, she relies on the clinical notes and records ("CNRs") of Dr. Samuel, family doctor, and Dr. Sethi, physician at a walk-in-clinic, consult report of Dr. Chizen, physiatrist and reports of Mandeep Singh, psychological associate dated October 3, 2022; and Dr. Portnoi, general practitioner dated May 24. 2024.

8The respondent argues that the applicant's accident-related impairments fall within the definition of a minor injury. It submits that the applicant's self-reports about her symptoms to assessors were vastly inconsistent with what she reported to her family doctor and the doctor at the walk-in clinic. It relies on the insurer examination ("IE") reports of Dr. Silver, chronic pain specialist dated October 21, 2022, and Dr. Mohammad, general practitioner dated December 29, 2023, who both diagnosed her with soft-tissue injuries which could be treated in the MIG. It also relies on the IE report of Dr. Gooden, psychologist, dated January 16, 2023, who determined that the applicant did not have a psychological impairment which warrants removal from the MIG.

9I find the applicant sustained a minor injury as defined by the Schedule for the following reasons.

Concussion

10I find the medical evidence does not support that the applicant sustained a concussion as a result of the accident for the following reasons.

11First, I find the hospital record from the day of the accident does not establish that the applicant sustained a concussion. The applicant reported that she hit her head on the steering wheel when the accident occurred and sustained a laceration to her lip which required stiches. The hospital record does not refer to a concussion or any self-reported reported symptoms which are consistent with a concussion. Moreover, the family doctor's CNRs demonstrate that she visited twice that same month where there was no mention of post-concussion symptoms and no concussion diagnosis.

12Second, the applicant's first complaint of headaches and post-concussion symptoms is reflected in a CNR of a walk-in-clinic in July 2023, which was over one-year post-accident. The first note states "headache, off and on for a few days. Noise makes it worse/bright lights worse – dizziness – no injury." I find the date of these complaints too remote from the date of the accident to support that the applicant sustained a concussion as a result of the accident. Moreover, the accident is not mentioned in this record and the note states no injury.

13Third, I do not find the report of Dr. Portnoi who diagnosed the applicant with post-concussion syndrome persuasive because the diagnosis did not align with the medical documents reviewed which note that the applicant's first reported post-concussion symptoms was in July 2023. Dr. Portnoi does not reconcile this in his report. For this reason, I have given Dr. Portnoi's report and diagnosis of post-concussion syndrome little weight as I find that the doctor solely relied on the applicant's self-reports.

14Finally, the applicant argues that she sustained a concussion because she consistently reported having migraines and headaches one to three times a week to all the assessors throughout the claim. I find the applicant's self-reports to assessors inconsistent with the CNRs of her treating practitioners because she did not report any headaches until over one-year post-accident and the only two CNRs that mention post-concussion symptoms significantly post-date the date of the accident. For this reason, I find the applicant has not established a link between post-concussion symptoms to the accident. In addition, I find that even if the applicant regularly reported having headaches to assessors it does not establish that she sustained a concussion because of the accident as there is no diagnosis prior to Dr. Portnoi's report which as stated above I have given little weight.

15For the above reasons, I do not find that the applicant sustained a concussion as a result of the accident which warrants removal from the MIG.

Chronic Pain Syndrome & Neurological Impairment

16I find the applicant suffered a minor injury from a physical perspective for the following reasons.

17First, I find the CNRs relied upon by the applicant support that she sustained a minor injury. The hospital ER record notes that she reported having a sore neck and back. Further, she followed up with her family doctor twice the following week in which she reported having mild chest pain and back pain. On January 9, 2023, she attended a walk-in clinic and complained of low back pain and right wrist paresthesia for three months. The note states "working as a personal support worker – no neck pain. The note indicates the applicant's range of motion was normal and the doctor diagnosed lumbar strain. I find these CNRs establish that the applicant sustained a minor injury as she was diagnosed with lumbar sprain. Further, the applicant's range of motion (ROM) was normal which also supports that her physical injuries were minor. In addition, these notes do not reflect that the applicant had any functional limitations as a result of the accident which is a requirement to be removed from the MIG as a result of chronic pain.

18Second, I find the consult note of Dr. Chizen dated January 12, 2023, establishes that the applicant sustained a minor injury. The note states that the applicant complained of pain in the neck, upper back and lower spine and tingling and numbness in her hands. The doctor stated that the exam revealed a healthy appearing individual in no acute physical distress. In addition, the ROM of her cervical spine, shoulder and elbows were full and functional and the physical examination of everything else was normal. Dr. Chizen diagnosed mild carpal tunnel syndrome of the right wrist and stated that it is possible that this was aggravated by the accident. I find the applicant has not demonstrated a link between the accident and any aggravation of carpel tunnel syndrome as she made no complaints about her wrist following the accident or prior to January 2023.

19Third, I do not accept the various diagnoses rendered by Dr. Portnoi because I find the doctor provided no explanation regarding how the various diagnoses were rendered. For example, the doctor diagnosed the applicant with various sprain and strain impairments, sacroiliac joint dysfunction, cervical radiculopathy, chronic pain syndrome and various psychological impairments with no discussion on how the diagnoses were supported by the physical examination or medical records. I also find the diagnoses inconsistent with the doctor's physical examination. For instance, he diagnosed cervical radiculopathy where his physical examination revealed that the ROM of the applicant's cervical spine was normal. Further, the doctor did not explain how the applicant met the criteria for a diagnosis of chronic pain syndrome.

20In contrast. the respondent relies on the two IE reports of Dr. Silver and Dr. Mohammed, who both found no objective evidence of any ongoing accident-related physical impairment and they both concluded that she sustained sprain and strain impairments which can be treated in the MIG. Dr. Silver conducted a physical examination which revealed full ROM of the cervical and thoracolumbar spine, bilateral shoulders and left elbow. Dr. Mohammed's physical examination also revealed that the applicant's ROM was normal. I prefer the opinions of the IE assessors because their findings regarding the applicant's impairments and ROM were consistent with the medical evidence before me.

21For the above reasons, I find the applicant has not proven that she should be removed from the MIG because of chronic pain syndrome or a neurological impairment (aggravation of carpel tunnel syndrome).

Psychological Impairment

22I find that the applicant did not sustain a psychological impairment as a result of the accident which removes her from the MIG for the following reasons.

23First, I find the report and opinion of Mandeep Singh completed at six months post-accident was based on the applicant's self-reports as the therapist did not review any CNRs as part of the assessment. Despite this, the therapist diagnosed the applicant with adjustment disorder with anxiety and depressed mood, persistent; major depressive disorder, recurrent, severe and features of somatic symptom disorder and specific phobia. I also find the psychometric tests administered by the therapist to be based on the applicant's self-reports. In addition, the therapist's diagnosis was inconsistent with the applicant's presentation during the assessment. For example, the report notes that the "applicant was friendly and cooperative. She maintained good eye contact, her memory and concentration were intact. She appeared frustrated at times. However, she maintained a good range of emotion."

24I find that had Mandeep Singh reviewed any medical records they would have discovered that the applicant had not made any psychological complaints prior to the assessment. For example, the CNRs of the applicant's family doctor support that she did not report any psychological symptoms until May 9, 2024, which was over two-years post-accident. That CNR states in "December was depressed -seen at walk-in-clinic -given Seroquel." I find the evidence regarding any ongoing psychological symptoms or impairment post-accident lacking. The applicant submits that I should accept Mandeep's Singh's diagnosis because it was consistent with the injuries noted on the disability certificates and OCF-18s authored by chiropractors at the clinic. It is well established law that psychological diagnoses are outside the scope of chiropractors. For this reason, I give this evidence and argument little weight.

25Third, I prefer the IE report of Dr. Gooden who found no diagnosable psychological impairment. The doctor administered psychological testing with embedded validity measures and the results were normal. I accept Dr. Gooden's opinion because as a psychologist they are more qualified to administer psychological tests and interpret the results. Further, Dr. Gooden reviewed the medical record in conducting their assessment. I also find Dr. Gooden's opinion more consistent with the medical evidence as there was a significant gap post-accident where no psychological complaints were made by the applicant.

26For the above-noted reasons, I find the applicant has not met her onus in proving on a balance of probabilities that she suffers from a psychological impairment which warrants removal from the MIG.

27Since the OCF-18s in dispute seek treatment outside of the MIG and there is only $152.66 remaining in the limit, it is unnecessary for me to determine whether they are reasonable and necessary.

The applicant is not entitled to interest.

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest as I have not determined that any payments are overdue.

ORDER

29For the above-noted reason, I find the applicant's injuries are minor and subject to treatment within the $3,500 MIG limit. She is not entitled to the benefits in dispute or interest.