Licence Appeal Tribunal File Number: 23-012893/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:
Juan Aldana Roa
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Pamela A Delgado, Paralegal
For the Respondent:
Peter Durant, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Juan Aldana Roa, the applicant, was involved in an automobile accident on February 19, 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, 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 section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $3,795.50 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated March 2, 2022?
iii. Is the applicant entitled to $2,023.03 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated August 12, 2022?
iv. Is the applicant entitled to $1,525.84 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated September 30, 2022?
v. Is the applicant entitled to $2,851.68 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated November 15, 2022?
vi. Is the applicant entitled to interest on any overdue payments of benefits?
RESULT
3I find that:
i. The applicant is subject to the MIG, and therefore subject to the treatment limits of the MIG.
ii. As the applicant is in the MIG, it is not necessary for me to consider if any of the disputed treatment plans are reasonable and necessary.
iii. As no benefits are owing, no interest is payable.
ANALYSIS
Application of the Minor Injury Guideline
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), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.
6The applicant submits that his injuries include major depression and adjustment disorder with anxiety.
7The respondent submits that the applicant has not met his onus, and his injuries are minor soft tissue injuries that are treatable within the MIG.
Does the applicant have a psychological impairment?
8I find the applicant has not met his burden to prove that he suffers from a psychological impairment that would warrant removal from the MIG.
9The applicant submits he has major depression and adjustment disorder with anxiety. The applicant relies on the OCF-3/Disability Certificate dated February 22, 2022, prepared by Dr. Ashley Narula, chiropractor, the section 25 psychology assessment report prepared by Dr. Betty Kershner, psychologist. The applicant also relies on the clinical notes and records (CNRs) of Neurology Centre of Toronto, and York HealthChoice Centre.
10The CNRs of Dr. Johann Micallef, neurologist, of Neurology Centre of Toronto, dated October 13, 2022 and the section 25 psychology report, dated August 16, 2022, prepared by Dr. Kershner, note the applicant experienced anxiety due to the accident and he was diagnosed by Dr. Kershner, with major depression and adjustment disorder with anxiety due to the accident.
11In my view, the CNR’s of the Neurology Centre of Toronto offer limited insight to the applicant’s psychological issue because no psychological testing is detailed within the report, and it is unclear whether Dr. Micallef or his nursing staff are providing the diagnosis.
12I place less weight on Dr. Kershner’s section 25 report because the majority of tests used for the diagnosis are self-reporting measures, and in my view, there are no objective measures to corroborate the findings from these tests. In my view, some objective testing would provide greater support to the conclusions drawn in the report. Also, the report states the applicant’s medical file was reviewed, however, I was not directed to contemporaneous medical reports that support Dr. Kershner’s diagnosis.
13The OCF-3 prepared by Dr. Narula notes “anxiety disorder, unspecified” and “moderate depressive episode”. I place less weight on the OCF-3 and the CNRs of Dr. Mohammed Khodabamdehloo, orthopaedic specialist, of York HealthChoice Centre, because a psychological diagnosis is out of scope for a chiropractor and an orthopaedic specialist.
14The respondent submits the applicant has not met his onus to establish his injuries fall outside of the MIG. The respondent relies on the section 44 psychological assessment dated January 3, 2024, prepared by Dr. Gerry Dancyger, psychologist, the section 44 physiatry assessment dated January 3, 2024, prepared by Dr. Wahab Khan, physiatrist, and the CNRs of William Osler Hospital Emergency Room, Crossroads Refugee Clinic, and York HealthChoice Centre.
15Dr. Dancyger’s section 44 psychology report notes the applicant did not report any feelings of emotional distress or discomfort, did not appear anxious or depressed, and “from a psychological perspective, there is no valid objective evidence to suggest that [the applicant] has an accident-related impairment.”
16Also, I have reviewed the CNRs of William Osler Hospital Emergency Room, Crossroads Refugee Clinic, and York HealthChoice Centre. The CNRs from February 2022 to March 2023 make no reference to any psychological impairment or any related self-reported issues.
17I place less weight on Dr. Khan’s section 44 physiatry report because, in my view, it is out of scope for Dr. Khan to assess the applicant’s psychiatric injuries.
18In my view, Dr. Dancyger’s section 44 report and assessment is based on tests including the in-person clinical interview and limited self-reporting, and it is consistent with the CNRs of his family doctor, the Emergency Room CNRs, and the walk-in clinic CNRs.
19I find, on a balance of probabilities, that the applicant has not met his burden to establish that he has a psychological impairment as a result of the accident that would warrant removal from the MIG.
20Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
21Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As no benefits are owed, no interest is payable.
ORDER
22For the reasons outlined above, I find that:
i. The applicant is subject to the MIG.
ii. As the applicant is in the MIG, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.
iii. As no benefits are payable, the applicant is not entitled to interest.
23The application is dismissed.
Released: December 16, 2025
Aric Bhargava
Adjudicator