Licence Appeal Tribunal File Number: 24-005373/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:
Meley Yemane
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Meley Yemane, Applicant
Kameliya Stancheva, Paralegal
For the Respondent:
Irene Tsui, Counsel
HEARD:
In Writing
OVERVIEW
1Meley Yemane, the applicant, was involved in an automobile accident on June 25, 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, Co-operators General Insurance Company, Co-Operators, 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 $1,570.62 for physiotherapy services, proposed by Activa Clinic in a treatment plan/OCF-18 (“plan”) dated March 8, 2023?
iii. Is the applicant entitled to $1,173.98 ($2,370.98 less $1,197.00 approved) for physiotherapy services, proposed by Activa Clinic in a plan dated July 22, 2022?
iv. Is the applicant entitled to $614.00 for physiotherapy services, proposed by KWIC Physiotherapy in a plan dated November 9, 2023?
v. Is the applicant entitled to $2,350.00 for a Psychological Assessment, proposed by Princeton Hills Medical Assessments in a plan dated January 4, 2023?
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?
viii. Is the applicant entitled to costs?
RESULT
3The applicant’s injuries are predominantly minor and treatable within the MIG.
4The applicant is not entitled to the treatment plans in dispute, interest, nor costs.
5The respondent is not liable to pay an award.
6This application is dismissed.
ANALYSIS
Minor injury guideline (MIG)
7I find that the applicant’s injuries are predominantly minor and treatable within the MIG.
8Section 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.”
9An 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.
10The applicant argues that she sustained chronic pain and a psychological disorder from the accident and should be removed from the MIG.
11The respondent submits that the applicant has not provided compelling medical evidence to prove that her injuries fall outside the MIG.
12The applicant notes that she sought medical attention the day after the accident. The clinical notes from the K-W Urgent Care Clinic, dated June 26, 2022, document “lower back pain…left knee pain…mild pain, lumbar…mild pain medial left knee.” The clinical notes and records of Dr. Atoyebi show that she continued to have pain complaints related to her back about 5 months after the accident. On September 15, 2023, the clinical notes of Dr. Vann state that the applicant’s ““main concern is her back pain. Ongoing since she had the MVA.” According to the applicant, these consistent reports of pain complaints prove that she has chronic back pain. Likewise, the applicant notes that the same medical records also show consistent complaints of knee and body pain and argues that these too are chronic pain injuries caused by the accident.
13The respondent relies on the Physiatry Assessment of Dr. Raymond Zabieliauskas, physiatrist, dated February 6, 2023. His clinical examination confirms that the applicant has tenderness to palpitation over the lower lumbar region, but no muscle spasm was noted. Compression of the lower lumbar facet joints on each side did not cause her to report pain. The applicant exhibited “fairly good” range of motion of the lumbar spine. She also demonstrated full range of motion of all lower extremity joints without reporting pain. The applicant reported tenderness in the left patellofemoral compartment with specific manoeuvres but there was no effusion in either knee. Dr. Zabieliauskas notes that the ligaments and menisci were intact in both knees. He concludes that the applicant continues to experience some residual pain as a result of the accident but is also capable of resuming all aspects of her life that she was engaged in prior to the accident without any physical restrictions or functional limitations.
14I give weight to the report of Dr. Zabieliauskas because it establishes that the applicant’s reported back and knee pain does not affect her ability to function. He examined her back and knees and tested the range of motion and other functional aspects of these areas. He considered the results of the examination and concluded that there are no functional impairments. His testing and analysis are more persuasive than the applicant’s evidence of consistent pain reports in the back and knee. The report of pain alone does not establish impairment. More context and details are required to show that her ability to function is restricted by pain in order to establish that the applicant has functional impairment, which is required for removal from the MIG on this ground.
15The applicant points to the following clinical note from Dr. Vann, dated September 15, 2023, to show that her accident-related injuries have impacted her ability to function. The applicant’s husband assisted at this appointment as translator:
Reason for appt:
He says their main concern Is her back pain
Ongoing since she had the MVA
He says they have a lawyer and her case has been open
That he used to be a truck driver to the US
But now has to stay home because she is unable to care for all their kids
He says she has back pain and abdo pain
He says being unable to care for their kids is affecting them all she complains of pain In her left shoulder two tender points in both shoulders, symmetrical also she complains of knee pain and ankle pain a also fatigue all the time
16The applicant submits that she cannot independently look after her 5 children because of her accident-related pain.
17Dr. Zabieliauskas’ report provides further details:
She reported that she currently lives in a two-bedroom basement apartment with her husband who is a truck driver and their five children. She has three daughters and two sons. The oldest daughter was born on February 20, 2011, and the youngest daughter on September 30, 2022. Her sons were born on July 21, 2013, and July 14, 2020. Her fourth child, a daughter, was born on November 5, 2021.
Ms. Tewolde Yemane reported that since the motor vehicle accident, her husband has not been truck-driving but looking after the four children, as well as her, at their apartment.
18The applicant argues that her spouse had to step in and help her look after their five young children because her accident-related impairments prevent her from independently looking after their children. However, she did not identify any care giving tasks that she cannot complete or has difficulty completing due to accident-related injuries. Consequently, this point is not persuasive because no specific details have been provided to explain why the applicant requires the husband’s help with childcare.
19The applicant also relies on the Disability Certificate (OCF-3) completed on July 22, 2022 by Ms. Kanika Govil, physiotherapist. She notes that the OCF-3 confirms that she cannot function as a caregiver, and that she has a substantial inability to perform housekeeping and home maintenance services. In her view, this further establishes that she has significant functional impairments as a result of her pain caused by the accident.
20The respondent argues that the OCF-3 is not a diagnosis, and therefore, cannot support a chronic pain diagnosis. The respondent also notes that the applicant stopped making pain complaints to Dr. Vann after November, 2023 and that this undermines the premise that she has chronic pain.
21The OCF-3 resulted from an examination that took place shortly after the accident. At that time, Ms. Govil opined that the applicant’s symptoms are temporary and would resolve in about three months. As such, I find that the OCF-3 deals with a relatively short period of time and does not support the applicant’s position that she has an ongoing chronic pain condition.
22The clinical notes of Dr. Vann show that the applicant had three appointments between March 12, 2024 and June 11, 2024 and she does not raise the issue of back or knee pain. The clinical notes from all of these appointments contain the phrase “No visible evidence of pain or anguish.” This is an indication that the applicant’s family doctor did not observe pain related symptoms or behaviour. As such, I agree with the respondent that these clinical notes do not support the applicant’s claim that she has ongoing chronic pain.
23The applicant further notes that she has made complaints of body pain, but she does not point to any evidence that provides insight into what she means by “body pain” or that this rises to the level of chronic pain or has resulted in a diagnosis of chronic pain. Dr. Vann, her family doctor, was not able to specifically identify what the applicant meant by this complaint. Her clinical notes of November 29, 2023 state, “non specific body pain.” As such, there is no basis for me to meaningfully conclude that this equates to a diagnosis of chronic pain with functional impairment.
24I accept that the applicant has ongoing pain caused by the accident, but this is not enough to show that her symptoms are something more than sequelae. Additionally, she must also show that she has functional impairments in order to be removed from the MIG. The limited evidence in this case is not sufficient enough for me to find that she has functional impairments caused by accident related pain. For this reason, I find that the applicant has not met her burden of proving that she should be removed from the MIG because of chronic pain.
25The applicant also submits that she has a psychological injury caused by the accident. In particular, she references the OCF-3 which states that she has “other anxiety disorders” as a direct result of the accident. I note that the OCF-3 was completed by a physiotherapist who is not qualified to assess mental and behavioural disorders. Thus, I give little weight to this submission.
26The respondent arranged for a Psychological Assessment, dated March 30, 2023, by Dr. Ricardo Harris, psychiatrist. The applicant reported symptoms of anxiety, and trauma. She also reported symptoms of depression, such as fatigue. However, Dr. Harris determined that she could not be diagnosed with a psychological disorder because malingering tests showed that her endorsement of symptoms were either false or exaggerated, and that her profile was strongly characteristic of a person feigning a mental disorder.
27As such, I find that the applicant has not met her burden of proving that she has a psychological injury caused by the accident. This is because I give little weight to the OCF-3, and also because the only psychological assessment in evidence, that of Dr. Harris, determined that she does not have a diagnosable psychological injury.
28Having found that the applicant does not have chronic pain or a psychological disorder caused by the accident, I further find that her injuries are predominantly minor and treatable within the MIG.
29According to the applicant, most of her MIG rehabilitative benefits have been exhausted and only $49.60 remains. As such, I find that no analysis for the treatment plans is required as no funds are available to pay for these benefits.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that there are no overdue payments, I further find that that the applicant is not entitled to interest.
Award
31I find that the respondent is not liable to pay an award.
32The 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.
33The applicant submits that the respondent’s refusal to fund the treatment plans may constitute an unreasonable delay or withholding of benefits under s.10 of Reg. 664 and warrants an award.
34The respondent argues that the applicant has not met her onus to prove that it is liable to pay an award because the treatment plans are not reasonable and necessary.
35The applicant’s submissions are based on the respondent’s refusal to fund treatment plans. I have already found that the applicant’s accident related injuries fall within the MIG. As well, most of the funds available under the MIG have been spent. Under these circumstances, the respondent is not required to fund additional treatment plans. Consequently, its refusal to fund further plans cannot be viewed as unreasonable and cannot be the basis for an award. Thus, I find that the respondent is not liable to pay an award.
Costs
36I find that the applicant is not entitled to costs.
37Under Rule 19 of the Licence Appeal Tribunal’s Rules, 2023 (“Rules”), the applicant may request costs if she believes that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith.
38The applicant submits that if the disputed treatment plans are approved, then she is entitled to costs. No further submissions were made on this point.
39The respondent argues that the applicant’s submissions fail to address the purpose, goals, or reasonableness of the proposed costs.
40The applicant’s request for costs is based on the approval of treatment plans. She has not explained how the respondent acted unreasonably, frivolously, vexatiously, or in bad faith. Thus, I find that the applicant is not entitled to costs because she has not addressed the grounds in Rule 19.
ORDER
41The applicant’s injuries are predominantly minor and treatable within the MIG.
42The applicant is not entitled to treatment plans, interest, nor costs.
43The respondent is not liable to pay an award.
44This application is dismissed.
Released: December 3, 2025
__________________________
Harry Adamidis
Adjudicator