Succo v. Intact Insurance Company, 2025 CanLII 135579

Licence Appeal Tribunal

Citation: Succo v. Intact Insurance Company, 2025 ONLAT 24-014346/AABS

Licence Appeal Tribunal File Number: 24-014346/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:

Antony Succo, Applicant

and

Intact Insurance Company, Respondent

DECISION

ADJUDICATOR: Timothy Porter

APPEARANCES:

For the Applicant: Rohan Haté, Counsel

For the Respondent: Jonathan Wong, Counsel

Heard via Videoconference: September 23, 2025

OVERVIEW

1Antony Succo, the applicant, was involved in an automobile accident on May 11, 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 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:

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 ("MIG")?
2. Is the applicant entitled to a non-earner benefit of $185.00 per week from May 11, 2023, to date and ongoing?
3. Is the applicant entitled to the plan's proposed by Prime Healthcare as follows: i. $127.19 for chiropractic services in a plan dated September 29, 2023? ii. $1,976.16 for chiropractic services in a plan dated November 17, 2023? iii. $2,098.64 for chiropractic services in a plan dated January 12, 2024? iv. $2,173.30 for chiropractic services in a plan dated June 28, 2024? v. $2,200.00 for a psychological assessment in a plan dated June 28, 2024? vi. $2,486.00 for a chronic pain assessment in a plan dated January 26, 2024?
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not met his onus and remains within the MIG.

4The applicant is not entitled to the non-earner benefit.

5As the applicant remains within the MIG, he is not entitled to the treatment plans in dispute.

6As no benefits are owing, no interest is due.

7No award is due.

ANALYSIS

8Prior to the subject motor vehicle accident ("MVA") the applicant had undergone spinal fusion surgery and has been diagnosed with Brown-Sequard Syndrome that effects his left side. The applicant had also been approved for the Canada Pension Plan Disability prior to the subject MVA.

The applicant remains within the MIG

9The applicant has not met his onus to establish that he should be removed from the MIG.

10Section 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."

11An 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.

12The applicant submits that his injuries from the subject MVA are not minor due to a psychological condition, chronic pain and pre-existing injuries which preclude him from maximum medical recovery if held within the MIG. The applicant relies on his testimony, the reports by Dr. Joseph Kwok and Dr. Jacqueline Brunshaw.

13The respondent submits that the applicant was involved in a minor collision from which he suffered minor injuries which have resolved. The respondent maintains its MIG decision and submits that the applicant's evidence is insufficient to support his position. The respondent relies on the s. 44 reports by Dr. Allan Kruger, Dr. Ricardo Harris and Mr. Jag Dhirayain, occupational therapist "OT".

Pre-existing condition

14I find that the applicant has not met his onus to prove that his pre-existing injury would preclude maximal medical recovery should he remain within the MIG. On a balance of probabilities, the applicant's pre-existing conditions would not preclude maximal medical recovery if his status in the MIG is maintained.

15The applicant testified that at the time of the accident he was in shock, blacked out and when he regained consciousness, he could not feel his hands and his neck hurt. The applicant also testified that pre-accident he has been approved for CPP disability; has been diagnosed with Brown-Sequard Syndrome and has undergone spinal fusion surgery.

16The applicant's assessor, Dr. Kwok, does not opine that the applicant's pre-existing injuries preclude maximum medical recovery within the MIG. Dr. Joseph Kwok, orthopaedic surgeon, assessed the applicant on May 15, 2025, and issued his report the same day. Dr. Kwok diagnoses the applicant with various strains and sprains and chronic pain. Dr. Kwok opines that the applicant's pre-existing conditions were exacerbated by the accident. I find that this opinion does not meet the test.

17The applicant also underwent an assessment with Dr. Alan Kruger, emergency physician, on July 6, 2023, and his report was issued July 20, 2023. Dr. Kruger notes that the applicant did not present any range of motion limitations except on his left side which is related to the pre-existing spinal stenosis and Brown-Sequard Syndrome diagnosis'. Dr. Kruger opines that the applicant suffers sprain/strain injuries, and that the applicant is functionally at the same level he was at prior to the subject accident. Dr. Kruger finds that the applicant sustained soft tissue strains and sprains without evidence of musculoskeletal or neurological sequela to the spine surgery and that the pre-existing condition would not prevent maximal medical recovery. Dr. Kruger concludes that there is no documented evidence of any pre-accident or concurrent clinically relevant musculoskeletal conditions except for Brown-Sequard Syndrome which would not prevent the insured from achieving maximal medical recovery if he were kept within the MIG.

18I further note that the applicant did not mention the MVA to a newly referred neurologist who was exploring new symptoms related to his pre-existing condition. The applicant had been referred to a neurologist by his family physician, this visit occurred post-MVA but had been requested prior to the MVA. Dr. Brian Temple saw the applicant on July 19, 2023. Dr. Temple relates that the applicant, since his spinal fusion surgery in 2011, has had ongoing weakness of the left leg and the loss of fine motor skills in his left hand and that in the last two years he has experienced increased numbness or tingling in his lower extremities and in both hands at night, and experiences chronic cervical pain since the operation. The applicant does not appear to have related any concerns regarding his pre-existing condition in relation to the recent MVA; and does not appear to have mentioned the recent MVA at all. Dr. Temple opines that there is no indication for surgery of the hands or spine, that the MRI findings from March 23, 2023, taken prior to the subject MVA, are stable. On a balance of probabilities, the applicant did not show concern about the pre-existing conditions impact on his ability to recover from the sprains and strains diagnosed from the MVA.

19I find that the applicant has not met his evidentiary onus to prove that his pre-existing injury would preclude maximal medical recovery should the applicant remain within the MIG. On a balance of probabilities, the applicant's pre-existing conditions would not preclude maximal medical recovery if his status in the MIG is maintained.

Chronic Pain

20I find that the applicant has not met his burden to prove, on a balance of probabilities, that he suffers from chronic pain as a result of the subject accident.

21The applicant testified that he experiences accident-related chronic pain.

22I am not persuaded by the report of Dr. Kwok because he diagnoses chronic pain but does not provide any basis upon which to make this diagnosis, he does not cite observations, or records from other health care interventions, or utilize the AMA guides formulation for this diagnosis. Dr. Kwok diagnoses the applicant with various strains and sprains and chronic pain.

23I find that the applicant's claim of chronic pain, as a result of the subject accident, is not supported by the medical evidence. The applicant testified that he has gout and pharmacy records indicate regular prescriptions to treat this; the applicant also reported to Dr. Brunshaw that the condition causes pain in his joints, hands and feet. The applicant had spinal fusion surgery in 2011, which he reported to Dr. Kwok causes pain. The applicant underwent an MRI on March 23, 2023, the MRI report notes multilevel cervical spine degenerative changes, and mild central canal and severe bilateral foraminal stenosis. Dr. Temple assessed the applicant on July 19, 2023, unrelated to the course of assessment and treatment for the MVA and notes the applicant reports chronic cervical pain since 2011. Dr. Kwok does diagnose chronic pain, however, this opinion lacks any analysis and does not point to any tests upon which to rely. Taken together, and on a balance of probabilities the evidence establishes that the applicant had pre-existing injuries that are the cause of the applicant's ongoing pain.

24I find that the applicant has not met his burden to prove, on a balance of probabilities, that he suffers from chronic pain as a result of the subject accident.

Psychological injury

25The applicant has not met his burden to prove, on a balance of probabilities, that he suffers from a psychological injury as a result of the subject accident.

26The applicant testified that he has panic attacks post-accident. Applicant's counsel pointed me to the report of Dr. Jacqueline Brunshaw, clinical psychologist, in support of his claims of suffering a psychological injury as a result of the subject accident.

27Dr. Jacqueline Brunshaw, clinical psychologist, oversaw Ibrahim Atasever, registered psychologist (qualifying), who assessed the applicant on May 15, 2025, and Dr. Brunshaw issued her report May 24, 2025. Based on the interview and test administration by Mr. Atasever, Dr. Brunshaw diagnoses the applicant with adjustment disorder with anxiety, major depressive disorder, single episode, moderate-to-severe and specific phobia, situational type (vehicular: driver, passenger, pedestrian) moderate to severe. I am not persuaded by the report of Dr. Brunshaw and Mr. Atasever because the diagnosis is underpinned by the belief that the applicant experiences moderate to severe anxiety in and around motor vehicles relating that he is "avoiding entering a vehicle whenever possible". However, I note that the applicant testified from within a work van at the hearing. The applicant being in a work van while testifying was a unique experience for me and I enquired with the applicant, he stated that he was in a friends van for privacy. The contrast between the diagnosis, and the observed behaviour causes me to question the veracity of the report to Mr. Atasever and the diagnosed phobia by Dr. Brunshaw. The report also highlights the negative impact of the applicant's weight gain as contributing to his symptoms; however, the applicant testified that his weight is 250 pounds at the time of the hearing, which is the same as the weight reported at an April 4, 2023, sleep clinic, one month prior to the subject MVA. Dr. Brunshaw relates that Mr. Atasever conducted the interview and administered the tests while she formulated the opinion; it is not clear if Dr. Brunshaw had any direct interactions with the applicant, which causes me some concern. Inconsistencies between what was reported to the assessors and what is observed or verified in evidence and the seeming arms-length distance between assessor and applicant cause me to provide a diminished weight to the opinion of Dr. Brunshaw and Mr. Atasever.

28The applicant underwent a s.44 assessment with Dr. Ricardo Harris, clinical psychologist. The assessment was conducted November 2, 2023, and the report was issued November 14, 2023. Dr. Harris opines that the applicant presented with moderate symptoms of anxiety, mild to moderate symptoms of depression and concluded that none of the mild to moderate symptoms cause functional limitations and therefore there is no diagnosis that could be granted to the applicant, according to the criteria outlined in the DSM 5, of the American Psychiatric Association.

29On a balance of probabilities any psychological issues the applicant is experiencing do not rise to the level of a diagnosable injury.

30For the reasons above, the applicant has not met his burden to prove, on a balance of probabilities, that he suffers from a psychological injury as a result of the subject accident.

31The applicant has not met his burden and remains within the MIG.

The applicant is not entitled to the non-earner benefit

32The applicant is not entitled to the non-earner benefit.

33Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a "complete inability to carry on a normal life" as "an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident." The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which focuses on a comparison of the applicant's pre- and post-accident activities.

34The applicant submits that he suffers a complete inability to carry on a normal life and relies on his testimony and the report by Dr. Kwok.

35The respondent submits that the applicant does not suffer a complete inability to carry on a normal life and relies on reports by Dr. Kruger and Mr. Jag Dhirayain, OT.

36The applicant testified that due to pain he can no longer engage in his pre-accident household tasks of dishes, laundry, vacuuming and mopping; he also testified that he can no longer cycle or go swimming and that his work as a musician, the applicant testified that pay for this work is more akin to an honorarium, is curtailed from twice a week to now only once a month.

37In his s. 25 report, Dr. Kwok does not opine that the applicant has a complete inability to carry on a normal life. However, he does opine that the applicant is disabled with respect to tasks which involve lifting, carrying, overhead reaching/lifting, pushing/pulling, bending, squatting, kneeling, stooping climbing, prolonged sitting/standing and walking and that these functional limitations significantly affect his social life and personal life. I am not persuaded by the report of Dr. Kwok who assessed the applicant May 15, 2025, because he provides joint range of motion measurements without context and while he acknowledges a more complex pre-existing medical history, he provides far too little analysis of the subject MVA as the cause of injuries he identifies. Finally, Dr. Kwok provides no context for the implications of his physical findings stating only that functional limitations significantly affect his social life and personal life. I find that Dr. Kwok's opinion is not evidence of a complete inability to carry on a normal life.

38I am not persuaded that the pain the applicant I experiencing is as a result of the subject accident. The applicant submits that pain is the impairment that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged in before the accident. The applicant has a substantial history with pain, having suffered from chronic pain since at least 2011 when he underwent spinal fusion surgery. The applicant underwent an MRI on March 23, 2023, the MRI report notes multilevel cervical spine degenerative changes, and mild central canal and severe bilateral foraminal stenosis, which causes ongoing pain. Pharmacy records and the applicant's reports to Mr. Atasever indicate that the applicant has suffered from gout and that the condition causes pain in his joints, hands and feet. It is unclear to me how the pain the applicant is feeling now is different from the multifaceted, long-standing pain he experienced pre-accident.

39Dr. Kruger assessed the applicant July 6, 2023, and issued his report August 15, 2023. Dr. Kruger relates that the applicant reported that although there is difficulty, he is independent with all of his activities of daily living pertaining to personal hygiene, (un)dressing, toileting, feeding and functional transfers, ambulation, modified and with increased assistance from his son undertakes cleaning, cooking, laundry and lawn mowing. Dr. Kruger opines that the applicant did not suffer an impairment as a result of the subject MVA and concludes that the applicant does not suffer a complete inability to carry on a normal life as a result of the subject MVA.

40Jag Dhirayain, OT assessed the applicant July 31, 2023, and issued his report August 15, 2023. Mr. Dhirayain tested active range of motion and reported that in all measurements the applicant was within functional limits, with the exception of the left leg. Mr. Dhirayain related that the applicant reported a regular daily routine pre-accident that included independent waking, making breakfast, house cleaning, swimming, attending any calls for work and practicing for his musical band. The applicant also reported that this is the same routine he follows post-accident. Mr. Dhirayain concluded that the applicant does not suffer a complete inability to carry on a normal life as a result of the accident and that the applicant is capable of resuming his normal life activities regularly performed prior to the accident.

41I find, on a balance of probabilities, that the applicant does not suffer an impairment, as a result of the subject accident, that continuously prevents him from engaging in substantially all of the activities in which he ordinarily engaged before the accident.

42For the reasons above the applicant is not entitled to the non-earner benefit.

The applicant is not entitled to the treatment plans in dispute

43Given that I have determined that the applicant remains within the MIG, he is entitled to treatment up to the MIG limits, as the MIG limits are exhausted there is no need to explore whether the plans are reasonable and necessary.

Interest

44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is due.

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 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I was not pointed to any evidence that the insurer acted in an unreasonable manner in withholding or delaying the payment of benefits. No award is due.

ORDER

46The applicant has not met his onus and remains within the MIG.

47The applicant is not entitled to the non-earner benefit.

48As the applicant remains within the MIG, he is not entitled to the treatment plans in dispute.

49As no benefits are owing, no interest is due.

50No award is due.