Licence Appeal Tribunal File Number: 24-003359/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:
Ajani Hypolite
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Nanda Naman, Counsel
For the Respondent:
Eluxmeenah Rishihesan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ajani Hypolite, the applicant, was involved in an automobile accident on December 21, 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, 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 services proposed by Yonge-Spruce Chiropractic Health Centre as follows:
$2,850.98 for chiropractic services, in a treatment plan dated April 26, 2022;
$1,334.20 for chiropractic services, in a treatment plan dated November 8, 2022; and
$2,981.75 for chiropractic services, in a treatment plan dated March 26, 2024?
iii. Is the applicant entitled to assessments and services proposed by HealthSpot Assessments Inc, as follows:
$2,460.00 for a psychological assessment, in a treatment plan dated September 27, 2023; and
$4,987.56 for psychological services, proposed in a treatment plan dated February 7, 2024?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG.
4I find that the applicant is not entitled to treatment plans in dispute, interest or an award.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
5I find that the applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3500.00 limit of the MIG.
6Section 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.”
7An 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.
8In this matter, the applicant submits he has various pre-existing impairments that were exacerbated by the subject accident. He further submits that he should be removed from the MIG based on his physical injuries which have become chronic as well as his psychological impairments.
a. The applicant is not removed from the MIG on the basis of a pre-existing condition
9The applicant submits that he has various pre-existing impairments that were exacerbated by the subject accident. He submits that the records of Dr. David Kirsh, family physician, show that he has a pre-existing intensive history of epilepsy as well as injuries suffered due to previous motor vehicle accidents. The Disability Certificate, prepared by Dr. Mark Shrott, chiropractor, dated April 25, 2022, notes that the applicant was currently under treatment for two previous motor vehicle accidents on February 6, 2020 and October 16, 2020. It states that he suffered fractures to his ribs and wrist as well as a concussion in his October 16, 2020 accident. The applicant submits that in the October 16, 2020 accident, he suffered pain in his ribs, head, neck, chest and wrist. The applicant also submits that he was in a motor vehicle accident on June 28, 2021, due to a seizure. The applicant further submits that he attended for treatment at Yonge-Spruce Chiropractic Health Centre and received physical therapy for the period from December 15, 2018 to June 25, 2024.
10I find that while the applicant notes in his submissions that his pre-existing impairments were exacerbated by the subject accident, he has not provided submissions that he should be removed from the MIG due to a pre-existing condition that precludes maximal medical recovery if he is kept within the confines of the MIG. Therefore, the applicant 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
11I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition that would warrant removal from the MIG.
12The applicant submits that he suffered a psychological impairment as a result of the subject accident and as such he should be removed from the MIG. The applicant submits that he avoided driving, struggled with low mood and feelings of depression, sleeping difficulties, feelings of frustration and stress, memory and concentration difficulties and socializing difficulties. The applicant relies upon the psychological report of Dr. Julie Gosselin and Viktoria Tolmatshov, dated January 19, 2024 which diagnosed him with Major Depressive Disorder, and Specific Phobia: automobile fear as a result of the subject accident. The report further opined from a strictly psychological perspective, the applicant experiences clinically significant distress and dysfunction that impacts his autonomy and ability to live his life.
13The applicant further submits that he has reported his psychological issues to various treatment providers. Specifically, he states that he reported a concussion, anxiety, and difficulty sleeping due to pain, to his treating physiotherapy clinic on April 27, 2022.
14The applicant submits that the Insurer’s Examination (“IE”) psychological assessment report of Dr. Marjan Saghatoleslami, psychologist, dated May 16, 2024 was prepared more than two years after the date of the accident. He submits that the report should be given little weight as Dr. Saghatoleslami only conducted three tests on the applicant while Dr. Gosselin completed eight tests. Dr. Gosselin’s report therefore shows a complete picture of the applicant’s psychological health, whereas Dr. Saghatoleslami’s report only shows a partial picture. The applicant argues that Dr. Saghatoleslami concluded that he does not suffer from any psychological issues which is inconsistent with the other medical evidence submitted.
15The respondent submits that the applicant does not suffer a psychological impairment that warrants removal from the MIG. It relies upon the IE report of Dr. Saghatoleslami, which concluded that the applicant’s presentation did not meet the diagnostic criteria for any psychological disorders and that the applicant reported symptoms of pain and headaches resulting from the subject accident, but he did not have any clinical symptoms of low mood and anxiety.
16I find that the applicant has not met his evidentiary onus to prove, on a balance of probabilities, that he has sustained a psychological impairment.
17Upon review of the CNRs provided from Dr. Kirsh and Dr. Jeffrey Bernholtz, I find that there is no mention of any psychological complaints in respect to the subject accident. While the applicant refers to a CNR dated April 27, 2022, from his treating physiotherapy clinic that notes anxiety and sleeping difficulties, there are no other psychological complaints made by the applicant in the records submitted.
18I find that the first report that mentions any psychological issues is the Psychological Pre-Screening Report, prepared by Ms. Tolmatshov, dated September 27, 2023, which was prepared over a year and a half post-accident. However, the report did not involve a comprehensive psychological assessment of the applicant, but rather recommended that one be obtained. The pre-screening did not involve any psychological testing but relied exclusively on the applicant’s self-reports.
19I find that a psychological assessment report was subsequently prepared by Dr. Gosselin and Ms. Tolmatshov, dated January 19, 2024, over two years post-accident. The applicant in his submissions criticizes the IE report for being completed two years post-accident, when his own report is also prepared two years post-accident.
20Upon review of the report of Dr. Gosselin and Ms. Tolmatshov, I note the applicant’s submission that eight tests were performed. He submits that the IE report should be given less weight because only three tests were administered. I find that the applicant has not provided any evidence or case law to support that the IE assessor was required to complete the same eight tests in her assessment. I find that the IE assessor was entitled to conduct the psychometric testing that it believed was relevant to assess the applicant’s impairments. I therefore do not accept the applicant’s submission that the failure to perform the same eight tests provides an incomplete picture of the applicant’s impairments.
21I find upon review of the report of Dr. Gosselin and Ms. Tolmatshov, that the report provides a diagnosis of Major Depressive Disorder and Specific, Phobia, automobile fear. It concludes that the applicant experiences clinically significant distress and dysfunction that impacts his autonomy and ability to live his life. I find that report does not provide a rationale for the diagnosis in reference to the psychometric testing performed. I find that on the Beck Depression Inventory, he received a score of 4 (within the minimal range) which suggests that he is reportedly experiencing minimal day to day difficulties related to low mood. On the Beck Anxiety Inventory, he scored 27 which fell in the moderate anxiety range. On the Outcome Questionnaire, it notes that he does not indicate discomfort related to symptoms of depression, stress and anxiety, issues related to interpersonal relations, or struggles with employment, school and other social settings. Therefore, I find the conclusions made in the report are not supported by the scores on the psychometric testing.
22I find upon review of the IE report of Dr. Saghatoleslami, that during his interview, the applicant disclosed that he has mood swings, and he feels impatient and irritable due to lack of sleep and having to delegate work to his contractors. He reported that he does not have anxiety about driving, but because of his seizures, he limits how much he drives. As a passenger, he feels he has less control over the driving and distracts himself in the vehicle. He noted difficulties falling asleep and attributed some of his difficulty to some discomfort from pain. He reported some memory difficulties which he attributed to possibly lack of sleep or aging. The psychometric testing assessing his current state of emotional functioning fell in the normative range. Dr. Saghatoleslami concluded that the applicant does not meet the DSM-5-TR diagnostic criteria for a Major Depressive Disorder, Hypomania or Mania. His symptom disorder does not meet the full DSM-5-TR diagnostic criteria for an anxiety disorder.
23I find that where there are two competing opinions as to whether an insured suffers a psychological impairment, the records of the treating practitioners should be given the most weight. In this matter, there is only one CNR referencing the applicant’s complaints of sleeping difficulties and anxiety, in the two years following the accident. I therefore find that there is a lack of psychological symptoms reported by the applicant following the accident, which supports the opinion of the IE assessment that he does not suffer a psychological impairment as a result of the accident.
24For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition as a result of the accident and therefore he is not removed from the MIG on this basis.
c. The applicant is not removed from the MIG based on a chronic pain condition
25I find that the applicant has not proven on a balance of probabilities that he suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.
26Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his 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.
27The applicant submits that the medical evidence supports that he suffers from a chronic pain syndrome as a result of the accident and therefore he is not subject to the MIG. He relies upon the Tribunal decision in T.S. v. Aviva General Insurance Company, 2018 CanLII 83520 (ON LAT), where it was held that chronic pain by definition is a condition that persists for three to six months and that a diagnosis of chronic pain syndrome is not required to remove an applicant from the MIG. The applicant claims that his impairments include pain in his head, neck, chest and back as a result of the accident.
28The applicant submits that he attended Yonge-Spruce Chiropractic Health Centre and received physical therapy for the period of December 15, 2018 to June 25, 2024. He claims that as a result of the subject accident, he received physical therapy primarily to treat his neck, back and shoulder pain. He refers to a letter from Dr. Mark Shrott, chiropractor, dated July 23, 2024, which notes that a bone scan shows multiple fractures in the ribs and wrist and the MRI is positive for a possible brain injury from remote trauma.
29The applicant relies upon the IE neurological report of Dr. Adrian Fawcett, dated September 6, 2024, where he reported that immediately following the accident, he said that he experienced headaches, light-headedness, and pain in his neck, upper and lower back, right shoulder and left knee. He also reported new onset memory issues with the accident.
30The applicant relies upon the IE psychological report of Dr. Marjan Saghatoleslami, dated May 16, 2024, which was completed two and a half years after the subject accident, where it is noted that he is suffering from residual physical pain. That applicant submits that this report supports that his pain has become chronic.
31The applicant further relies upon the IE physician’s assessment report of Dr. Frederick Ma where the applicant reported pain levels of 7/10 after two and a half years of the subject accident. Dr. Ma diagnosed him with right wrist pain, left elbow pain, cervical myofascial pain, WAD II, predominantly left-sided, lumbar myofascial pain, left knee pain, posttraumatic OA, MCL strain and IT band dysfunction.
32With respect to the AMA Guides, the applicant submits that he meets five out of the six criteria for chronic pain syndrome as follows:
Excessive dependence on health care providers, spouse or family – The applicant submits that he has been relying heavily on chiropractors and physiotherapists at Yonge-Spruce Chiropractic Health Centre due to the subject accident.
Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain – The applicant reported that he is working modified duties, and his working capacity is reduced due to pain, as compared to pre-accident.
Withdrawal from social milieu, including work, recreation or other social contacts – The applicant submits that he has stopped playing soccer, maintaining his lawn and garden and playing sports with his children in his free time as reported in Dr. Ma’s report.
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 – The applicant submits that he has been unable to return to his work duties completely and has to delegate work. He also has difficulty in undertaking housekeeping duties and perform recreational activities as a result of the accident.
Development of psychological sequelae after the incident – The applicant submits that he has reported anxiety and sleep disturbance as a result of the accident, and he sleeps only 4-6 hours per night.
33The respondent submits that the applicant does not suffer from chronic pain. It relies upon the IE general practitioner’s report of Dr. Tu, dated February 2, 2023, where Dr. Tu opined that from a musculoskeletal perspective, the applicant’s injuries fall within the MIG. She also noted that the applicant has no pre-existing conditions or concurrent medical conditions contributing to his present condition or preventing him from achieving maximal medical recovery. Dr. Tu noted that the applicant mentioned having previous accidents, but he could not recall many details about the accidents and denied any wrist, finger, or back pain prior to the subject accident.
34I find that the applicant has not met his evidentiary onus to prove, on a balance of probabilities, that he suffers chronic pain.
35I find that the applicant has not directed me to any diagnosis of chronic pain syndrome or reference to chronic pain in the records submitted. While the decision in T.S. v. Aviva, states that a diagnosis of chronic pain syndrome is not required, I find that it is still incumbent on the applicant to prove that his ongoing pain causes a functional impairment which adversely affects his well-being.
36I find upon review of the CNRs of Dr. Bernholtz, the applicant saw him on only two occasions immediately post-accident. On December 23, 2021 and December 27, 2021, the applicant reported rib and chest pain. X-rays of the ribs and an ultrasound of the abdomen were performed which were normal. There were no further visits to Dr. Bernholtz post-accident.
37I find upon review of the CNRs of Dr. Kirsh, that the applicant was seen on multiple occasions post-accident and there is no mention of the accident in these records. The records are focused solely on the applicant’s epilepsy and seizure disorder. While the records contain the report of Dr. James Seligman, dated December 5, 2022, the applicant was seen in respect of a left-hand injury that occurred two years prior and is not accident related.
38I find that the applicant submitted that he attended Yonge-Spruce Chiropractic Health Centre prior to the accident and continued to attend on a regular basis post-accident until April 12, 2024. The applicant has not pointed the Tribunal to any mention of his functional limitations in the records provided. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the records provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at paragraph 50.
39I find that in the IE report of Dr. Tu, a complete physical assessment was completed. The report notes that the applicant reported doing less physical labour work and working generally less hours than he did pre-accident. He notes since the accident he has continued to do most of the chores at home and there has been no changes to his functioning and daily activities at home. He is independent with all personal hygiene. His main complaints at the time of the assessment were ongoing left wrist, right thumb and lower back pain. Dr. Tu concluded that from a musculoskeletal perspective, the applicant has likely suffered from a right thumb strain, a left wrist strain, and a lumbar strain as a direct result of the accident and therefore he has suffered minor injuries as defined by the Schedule.
40I find that while the applicant submits that he reduced his hours and the tasks that he performed at work following the accident, the applicant has not pointed me to any evidence to support these functional limitations, other than noting his complaints to the IE assessors. In addition, the applicant reported that there were no changes to his functioning and daily activities at home.
41In terms of the AMA Guides criteria, the applicant submits that he meets 5 out of 6 of the criteria. While I accept that the applicant attended for ongoing treatment post-accident, he has not directed me to evidence of excessive dependence on healthcare providers, or family; secondary physical deconditioning due to disuse or failure to restore pre-injury function, and I do not see anything in the medical records to support these criteria. As such, the applicant has not met three of the six criteria for establishing chronic pain.
42For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that he suffers chronic pain which would warrant his removal from the MIG.
Entitlement to the Treatment Plans in dispute
43As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are outstanding, the applicant is not entitled to interest.
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 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.
ORDER
46For the reasons outlined above, I find:
i. The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to treatment plans in dispute;
iii. No interest or an award is payable; and
iv. The application is dismissed.
Released: November 25, 2025
Melanie Malach
Adjudicator