Licence Appeal Tribunal File Number: 24-003325/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:
Michael Laptiste
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Ryan Olson, Paralegal
For the Respondent:
Anna Mirski, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Michael Laptiste (the “applicant”) was involved in an automobile accident on March 30, 2023, 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 Dominion of Canada General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are:
Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
Is the applicant entitled to chiropractic services in the amount of $4,063.90, proposed by Total Recovery Rehab Centre in a treatment plan (“OCF-18”) submitted on July 31, 2023, and denied on August 14, 2023?
Is the applicant entitled to a psychological assessment in the amount of $2,144.93, proposed by Somatic Assessments and Treatment Clinic in an OCF-18 submitted on October 25, 2023, and denied on November 3, 2023?
Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG and is not entitled to the disputed OCF-18s. Neither an award nor interest is payable.
ANALYSIS
The applicability of the MIG
4Section 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.”
5The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2) of the Schedule, which says the MIG limit does not apply if the applicant’s health practitioner determines and provides: (1) compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and (2) that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from his accident-related injuries if kept in 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.
6In this case, the applicant seeks MIG removal based on “injuries that prevent him from achieving maximal recovery” under the MIG limits, psychological impairment, and chronic pain.
Pre-existing condition
7I find the applicant has not shown a pre-existing condition that will prevent him from achieving maximal recovery from his accident-related injuries if kept in the MIG.
8The applicant submits he has injuries the prevent him from achieving maximal recovery under the MIG.
9The respondent’s submissions do not argue the merits of the pre-existing condition provision.
10The applicant has not made submissions or led evidence to show he has a pre-existing condition that was documented by a medical practitioner prior to the accident. The applicant also failed to point to evidence of a health practitioner determining and providing compelling evidence that the pre-existing medical condition will prevent maximal recovery from accident-related injuries within the MIG. As such, I am satisfied that the applicant has not met his onus to establish MIG removal on the basis of a pre-existing condition.
Psychological impairment
11I find the applicant has not demonstrated psychological impairment arising from the accident.
12The applicant submits his quality of sleep has “significantly” deteriorated since the accident. He complains of frequent nightmares that awaken him. The applicant also claims he suffers from accident-related fatigue, anxiety, depression, increased irritability, poor mood, driving avoidance, and cognitive difficulties including decreased memory and concentration. The applicant relies on the clinical notes and records of Dr. Rajendra Beharry (family physician) and a psychological pre-screening report completed on March 30, 2023, by Dr. Svetlana Gabidulina (psychologist).
13The respondent argues that the applicant had not met his onus. The respondent maintains that the clinical notes and records of Dr. Beharry encompass a total of six visits since the March 2023 accident and do not mention psychological impairment or specialist referral for assessment or treatment of psychological difficulties. The respondent relies on the section 44 examination completed by Dr. Douglas Saunders (psychologist) on October 31, 2024, to show the applicant did not sustain an accident-related psychological impairment.
14I accept that the applicant has had difficulty sleeping since the accident. He reported complaints of interrupted and poor sleep to Dr. Beharry on April 3, 2023, and May 17, 2023. The evidence referenced in the applicant’s submissions shows that these complaints persisted up to August 2024—more than 16 months post-accident.
15However, I was not directed to evidence of Dr. Beharry attributing the applicant’s sleep difficulties to psychological factors. For example, the applicant’s submissions do not direct me to referrals for psychological assessment or counselling to address his sleep complaints despite ongoing complaints of interrupted sleep in March, July and August of 2024. Similarly, the appellant’s submissions explain that he received medications to address his pain symptoms, but do not mention medications prescribed by Dr. Beharry to aid sleep or treat the types of psychological symptoms raised in the OCF-18 certified by Dr. Gabidulina on June 24, 2023. In my view, this diminishes the applicant’s position that his sleep difficulties are owing to psychological factors.
16I do not place much weight on the Dr. Gabidulina’s clinical opinion, which is offered in the additional comments section of the June 2023 OCF-18. Dr. Gabidulina indicates the applicant struggled with depression, anxiety, irritability, fatigue and fear as a direct result of the accident. However, there is no indication that Dr. Gabidulina’s “provisional” assessment was informed by a file review of the applicant’s medical history or testing (i.e., psychometric or cognitive) to corroborate his complaints. This causes me to place less weight on Dr. Gabidulina’s clinical opinion as the applicant’s uncorroborated reports of his symptomology are not sufficient to support psychological impairment arising from the accident. For example, the applicant told Dr. Gabidulina that his sleep has “significantly deteriorated” since the accident due to nightmares that prevent him from sleeping or falling back to sleep. But I find this claim is not supported by Dr. Beharry’s clinical notes and records. The applicant’s submissions do not point to evidence of nightmares disclosed to Dr. Beharry and, for what it’s worth, I see no mention of nightmares in these records. Similarly, the applicant’s submissions do not direct me to evidence that corroborates the other symptoms of psychological distress documented by Dr. Gabidulina (i.e., depression anxiety, etc.). Rather, it is the applicant’s complaints of sleep difficulties owing to his pain—and not psychological factors—that I find are persuasive. This is because he also raised pain as a barrier to sleep during his provisional assessment with Dr. Gabidulina, which I find is supported by Dr. Beharry’s clinical notes and records.
17I prefer the evidence of Dr. Saunders because his section 44 report demonstrates his examination included psychometric testing and a file review of available medical records. Dr. Saunders’ opinion is that the applicant did not meet the clinical criteria for psychological impairment resulting from the accident. In my view, this finding is consistent with the lack of evidence to support psychological difficulties in Dr. Beharry’s records.
18Taken in totality, I am satisfied this evidence does not establish a nexus between the applicant’s sleep difficulties and the accident-related psychological impairment he claims, nor that he suffers from psychological symptomology that impairs his functioning, such as mood, concentration and memory.
Chronic pain
19I find the applicant has not established he sustained accident-related chronic pain.
20To demonstrate he should be removed from the MIG, the applicant must show he sustained chronic pain with functional impairment that is more than sequalae from his accident-related injuries. The Tribunal has held that chronic pain syndrome—or pain that is a severe, debilitating condition accompanied by functional impairment and distinct from ongoing or recurring pain—qualifies as chronic pain [see, for e.g., 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT); 16-000438 v The Personal Insurance Company, 2017 CanLII 595151 (ON LAT); and Pham v. Coseco Insurance, 2021 CanLII 43546 (ON LAT)].
21The applicant submits that he has not recovered in the usual healing time associated with his types of injuries, and therefore reasons that he suffers chronic pain resulting from the accident. He says the clinical notes and records of Dr. Beharry show his complaints about injury-related pain have persisted 18 months beyond the accident and required medication prescriptions to address his pain symptoms. The applicant adds that his pain was also documented during the September 2024 section 44 examination conducted by Dr. Alborz Oshidari (physiatrist) on behalf of the respondent. The applicant relies on C.G. v. The Guarantee Company of North America, 2020 CanLII 63599 ON LAT (“C.G.”) to show that “chronic pain is a condition that persists for three to six months and formal diagnosis of chronic pain is not required to remove from the MIG.”
22The respondent argues that the pain complaints the applicant voiced to Dr. Oshidari were not related to the accident. The respondent also says the applicant told Dr. Oshidari that he was able to complete daily activities independently and found his pain to be manageable upon discontinuing treatment after two months. The respondent maintains that the applicant has a functional range of motion despite sustaining lumbar sprains and strains in the accident.
23I accept that the applicant continued to experience accident-related pain for 18 months post-accident. This is made out in Dr. Beharry’s clinical notes and records. In April 2023, Dr. Beharry documents complaints of pain in the applicant’s back, neck, shoulder (unspecified as to left or right), and legs following the accident on March 30, 2023. The back, neck, and shoulder pain were again documented during visits in May 2023, March 2024, July 2024, and August 2024. Dr. Beharry’s notes substantiate the applicant’s submission that medication was prescribed at each of these visits.
24However, I find the applicant has raised little evidence that shows his pain is a severe, debilitating condition accompanied by functional impairment and distinct from ongoing or recurring pain. In this context, C.G. is not persuasive. In C.G., which is not binding on me, the Tribunal considered whether chronic pain requires a diagnosis and this is not raised by the parties in this matter. Further, the Tribunal’s decision in C.G. considered only the duration of the pain without determining whether it was accompanied by functional impairment. Put differently, there was no analysis that distinguished the insured’s pain as debilitating and distinct from ongoing or recurring pain. As such, I find C.G. does not assist here.
25I agree that Dr. Beharry observed pain associated with any range of motion and shoulder discomfort when he physically examined the applicant at each encounter. But the applicant’s submissions stop short of pointing to evidence of debilitating functional limitations arising from this pain in Dr. Beharry’s records. For example, there is no mention that the applicant’s range of motion was actually restricted by the pain (i.e. that the pain impaired the applicant’s range of motion).
26Similarly, the results of Dr. Oshidari’s examination do not support disability arising from the applicant’s pain. Dr. Oshidari’s report, dated November 21, 2024, documented that the range of motion in the applicant’s cervical spine (i.e. neck) was full and pain-free when he was examined in September 2024. Same for the applicant’s shoulders and hips despite complaints of back pain when the latter was tested. While the applicant’s range of motion in his lumbrosacral spine (i.e. low back) was measured at 80 per cent of normal in flexion and rotation, and 70 per cent of normal in extension and lateral bending, I find Dr. Oshidari determined this still presented within a functional range of motion, which, in my view, falls short of establishing a severe, debilitating condition.
27Taken in totality, I find this evidence does not establish that the applicant should be removed from the MIG because of chronic pain.
The compliance of the respondent’s denial notice pertaining to the OCF-18 for chiropractic services
28I find the applicant has not established that the respondent’s denial notice for this OCF-18 failed to comply with the requirements set out in section 38(8) of the Schedule.
29Section 38(8) of the Schedule provides that within 10 business days after it receives an OCF-18, the respondent shall give the applicant a notice that identifies which goods, services, assessments and examinations it agrees to pay for, as well as those it does not agree to fund. The respondent is further required to provide the medical reasons and all of the other reasons why it considers any items or their proposed costs to not be reasonable and necessary.
30The consequences of failing to comply with section 38(8) are made out in section 38(11), which states that the respondent is prohibited from relying on the MIG and further, that it shall pay for all goods, services, assessments and examinations described in the OCF-18 that relate to the period starting on the 11th business day after the day the respondent received the application and ending on the day the respondent gives a notice that complies with section 38(8) of the Schedule.
31The applicant submits that the respondent’s August 2023 denial notice for this OCF-18 was non-compliant with section 38(8) of the Schedule because it used “boilerplate” language that failed to provide sufficient medical reasons for denying the OCF-18. The applicant also asserts that up to December 2024, the respondent failed to provide sufficient medical reasons for denying this OCF-18 once in receipt of the medical documentation that he later provided in November 2023. The applicant therefore reasons that he should be entitled to treatment incurred under this OCF-18 up to December 3, 2024, and he relies on Jamily v. Certas Home and Insurance Company, 2022 CanLII 98064 ON LAT (“Jamily”), to show that a denial notice is not compliant unless it at least mentions the applicant’s injuries and the associated medical documentation relied upon by the respondent.
32The respondent argues that its denial notice was compliant because the applicant had not provided any clinical notes and records for review at the time he submitted the OCF-18 in August 2023. The respondent explains that the records subsequently submitted by the applicant in November 2023 consisted only of two post-accident consultations since the accident, and that these records did not substantiate that the applicant’s injuries were outside the MIG.
33Based on the facts specific to this case, I find the respondent’s notice, dated August 14, 2023, is sufficient to meet the requirements set out in section 38(8) of the Schedule. While I agree the notice is sparse on details about the applicant’s injuries and the medical evidence reviewed by the respondent, it remains that the applicant acknowledges he provided medical records to support the proposed chiropractic treatment on November 20, 2023—more than three months after he submitted the OCF-18 and was issued the corresponding denial notice. As such, I am persuaded that the denial rationale provided in the respondent’s August 2023 notice (i.e., that “upon review of the medical documentation received to date [emphasis added] we believe that your injuries are predominantly minor in nature”) is accurate and complies with section 38(8).
34I find Jamily, which is not binding on me, does not assist here. Jamily is distinguishable from this matter because the insured had concurrently provided evidence—for example, a medical report that noted impairments in range of motion neurological symptoms and possible pain disorder—to support the denied OCF-18s.
35While the applicant submits that a subsequent “letter”—which I take to mean a denial notice—responding to the November 2023 medical evidence was not provided by the respondent until December 3, 2024, I afford this little weight because I have determined that the denial notice issued within 10 business days of receiving an OCF-18 was compliant. For what it’s worth, I also find the respondent adjusted the claim upon receiving medical documentation from the appellant in November 2023. The log note entry for December 19, 2023, shows that Dr. Beharry’s clinical notes and records–consisting of five entries between March 2022 and May 2023—were reviewed and that a determination was made that the applicant remained in the MIG.
The applicant is not entitled to the disputed OCF-18 treatment plans
36Given the operability of my finding that the applicant remains in the MIG, I find it unnecessary to consider the reasonableness and necessity of the disputed OCF-18s.
INTEREST
37Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no overdue benefits in this case, I find there is no interest owing.
AWARD
38I find the respondent is not liable to pay an award.
39The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [ See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration)]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
40There are no benefits payable in this case, and the applicant does not argue that any benefits outside of those disputed in his application were unreasonably withheld or delayed. As such, I find the respondent is not liable to pay an award.
41Even if benefits were payable in this case, I would find the applicant’s onus is not met on this issue. The applicant’s award submissions indicate he is vulnerable and has sustained serious impairments as a result of this accident; that the Tribunal needs to set precedents to ensure deterrence to insurers; and that the respondent acted in a highhanded manner. The first and second factor raised by the appellant do not relate to unreasonable conduct by the respondent. To the extent that “high-handedness” may qualify for an award, the applicant failed to point to examples of this behaviour in his submissions for me to consider.
ORDER
42The applicant remains in the MIG and is not entitled to the disputed OCF-18s. Neither an award nor interest is payable.
Released: December 3, 2025
___________________________
Michael Beauchesne
Adjudicator