Licence Appeal Tribunal File Number: 24-001448/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:
Yahya Abdus Salaam Allen
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR: Jim Zotalis
APPEARANCES:
For the Applicant: Sevda Guliyeva, Paralegal
For the Respondent: Nirvana Misir, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Yahya Abdus Salaam Allen, the applicant, was involved in an automobile accident on October 29, 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, Belair Insurance Company Inc., and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties participated in a case conference but were unable to resolve the issues and, thus, proceeded to this written hearing.
ISSUES
3The 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 (“MIG”) limit?
ii. Is the applicant entitled to $87.19 ($1,215.32 less $1,128.13 approved) for chiropractic services, proposed by E Clinic United Healing in a treatment plan/OCF-18 (“plan”) dated May 18, 2022?
iii. Is the applicant entitled to $3,714.49 for chiropractic services, proposed by E Clinic United Healing in a plan dated September 14, 2022?
iv. Is the applicant entitled to $1,995.00 for a psychological assessment, proposed by E Clinic United Healing in a plan dated September 25, 2023?
v. Is the applicant entitled to $3,707.20 for psychological services, proposed by E Clinic United Healing in a plan dated October 23, 2023?
vi. Is the applicant entitled to $2,004.96 for chiropractic services, proposed by E Clinic United Healing in a plan dated May 31, 2023?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not demonstrated that his impairments are outside of the definition of minor injury under s. 3(1) of the Schedule and therefore, removal from the Minor Injury Guideline (“MIG”) is not warranted.
5I find that the applicant has not demonstrated that removal from the MIG is warranted and as a result, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
6The applicant is not entitled to treatment for psychological and chiropractic services, nor a psychological assessment.
7No interest is payable.
BACKGROUND
8The applicant submits that he was travelling on his e-bike with the right-of-way when a vehicle suddenly made a left-hand turn, causing a collision in which the applicant’s e-bike impacted the passenger side of the vehicle and the applicant fell to the ground.
9As a result of the accident, the applicant alleges he sustained the following injuries: pain in his neck, arms, back, right leg and knee. He also made submissions that psychologically he felt fearful and confused as the accident occurred unexpectedly.
ANALYSIS
Are the applicant’s injuries predominantly minor and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
10I find that the applicant has not demonstrated that he suffers from a psychological impairment or chronic pain that warrants removal from the MIG.
11The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule 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.” The terms “strain”, “sprain”, “subluxation”, and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.
12An 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.
13The applicant submits that he should be removed from the MIG on the basis of chronic pain and psychological impairments.
Does the applicant have chronic pain with functional impairment as a result of the accident?
14I find the applicant has not met his onus to establish he suffers from chronic pain with functional impairment as a result of the accident.
15To summarize, the Disability Certificate (OCF-3) completed by Hetal Patel, chiropractor, lists the following injuries and sequelae as a result of the accident: acute pain, malaise, pain in joint, myalgia, headaches, low back pain, sprain and strain of the cervical spine, the thoracic spine, lumbar spine, the sacroiliac joint, the lumbar spine, knee, and shoulder joint. The OCF-3 also listed psychological impairments including nervousness, fatigue and emotional shock and stress.
16The applicant relies on the clinical notes and records (“CNRs”) of Dr. Omotayo Oladele Adeniyi, family physician, the OCF-18s completed by Dr. Alexander Kipershlak, chiropractor, the OCF-3 Disability Certificate, completed by Dr. Hetal Patel, chiropractor as well as the applicant’s self-reporting of physical pain symptoms and functional limitations in activities of daily living in support of removal from the MIG on the basis of chronic pain with functional impairment.
17The respondent relies on the in-person assessment conducted by Dr. Sabrina Ming-Wai Tu, general practitioner, on November 1, 2023, to establish that the applicant does not suffer from chronic pain with functional impairment as a result of the accident.
18The applicant submits he should be removed from the MIG on the basis of chronic pain with functional impairment because he has persistent pain beyond the typical timeframe (i.e. 12-week window) when most minor injuries should be resolved under the MIG timeframe. Further, the applicant submits his attendance at treatment, ongoing complaints to healthcare practitioners and diagnoses provided by a treatment facility (i.e. E United Healing Clinic) establish the existence of the applicant’s physical impairments beyond the MIG framework.
19The respondent submits that the applicant has suffered only minor injuries and does not suffer chronic pain syndrome as a result of the accident. The respondent further submits that the applicant has not produced any contemporaneous medical documentation to support his claim that he has any functional limitations resulting from pain, aside from the OCF-18 forms. The respondent submits that in order to be removed from the MIG on the basis of chronic pain, the applicant must demonstrate that there must be evidence of functional impairment with evidence of pain on the person’s functioning that is more than mere sequelae.
20The respondent directs me to 17-007825 v. Aviva Insurance Company, 2018 CanLII 98282, a case that sets out the American Medical Association (AMA) Guides’ six criteria in assessing claims of chronic pain. That guide establishes that at least three of the six criteria must be met for a diagnosis of chronic pain. Although it is a helpful framework and often cited by parties at the Tribunal, I am not bound to follow that guide. I agree with the respondent that to establish chronic pain there must be evidence of functional impairment with a discussion of the effect of pain on the person’s level of function that goes beyond mere sequelae.
21I am not persuaded that the applicant has chronic pain with functional impairment because of the accident for the following reasons. The applicant has not directed me to contemporaneous medical evidence to demonstrate that he has any functional limitations resulting from chronic pain. The applicant has not produced medical records, apart from the treatment plans, to demonstrate that the applicant requires treatment for chronic pain. The applicant did not make pain complaints to, and attend at a family physician until almost two years post-accident, on October 19, 2023, and then again on April 11, 2024. I have not been pointed to medical evidence of complaints by the applicant of severe or functionally disabling pain that affects his activities of daily living or his work function.
22In the CNRs of October 19, 2023, the applicant reports that as a result of his accident while riding his electric motor bike two years ago, he “fell, hit his head, scratch right thigh, hurt arm, denies LOC, went home afterwards after exchanging information…” He further endorsed in the CNR of October 19, 2023, having pain in right thigh and knee right away, and pain in his neck and back which began the next day after the accident of October 29, 2021. The CNRs of the family doctor indicate the applicant requested imaging almost two years post-accident. The same CNRs show the applicant replied to the family doctors’ query for the delay in requesting imaging as due to the use of marijuana to help with the pain immediately following the accident. Although the applicant was referred to a physiatrist, I have not been directed to any further medical evidence with respect to any follow-up consultations for chronic pain. I find that the referral for an x-ray, dated October 24, 2023, of the right elbow, hand, hip, knee and cervical spine indicated normal results. I also find that the diagnosis from the emergency record, Bowmanville Hospital, dated October 31, 2021, was soft tissue injury. The applicant made submissions that he did not undergo diagnostic tests at the hospital and felt he was not fully examined. I was not directed to any appointments with medical practitioners following the hospital visit of October 31, 2021.
23The applicant reported to Dr. Sabrina Ming-Wai Tu, general practitioner, in an assessment on November 1, 2023, that although he was independent with all activities of daily living prior to the accident, he has had friends come to assist him with heavy chores at home post-accident but is otherwise independent with his other chores as well as personal hygiene activities. He also reported to Dr. Tu that he gradually returned to working full time hours with full time duties as a mortgage broker, albeit strictly from his home as opposed to the office. I find this to be evidence that the applicant is not suffering from chronic pain with functional impairment. I have not been directed to evidence of chronic pain that could be considered more than mere sequelae of the soft tissue injuries.
24For the reasons stated above, I find the applicant has not demonstrated that he suffers from chronic pain as a result of the accident that warrants removal from the MIG.
Does the applicant have a psychological injury as a result of the accident to remove him from the MIG?
25I find the applicant has not demonstrated that he has suffered a psychological injury as a result of the accident that would take him out of the MIG.
26The applicant relies on a psychological assessment report, dated October 7, 2023, prepared in part by Stacy Yong, registered psychotherapist, and supervised by Mandeep Singh, psychological associate. In the report, the applicant is diagnosed with post-traumatic stress disorder; major depressive disorder, single episode, severe; somatic symptom disorder, with predominant pain, persistent, moderate; and specific phobia, situational type, travelling in a motor vehicle, on a bicycle.
27The respondent relies on a psychological assessment report, dated December 4, 2023, completed by Dr. Mehdi Lotfalizadeh, psychologist. The respondent made submissions that Dr. Lotfalizadeh’s report concludes that the applicant suffers no psychological impairment as a result of the accident due to scoring on the Structured Inventory of Malingered Symptomatology (“SIMS”), which flagged possible symptom exaggeration. Therefore, the respondent submits the applicant’s overall score on SIMS was significantly above the recommended cut-off score for the identification of suspected malingering.
28I am tasked with assessing the expert report of Mses. Yong and Singh compared to the expert report of Dr. Lotfalizadeh. The similarities between the two expert reports are as follows: both employ the Beck Depression Inventory (BDI-II) and the Beck Anxiety Inventory (BAI) tests.
29In the Yong and Singh report, the applicant’s scores in the BDI-II test reflected a severe level of depression and in the BAI test the applicant’s scores reflected a severe level of anxiety. In Dr. Lotfalizadeh’s examination, the applicant’s results reflected a severe level of depression and a severe level of anxiety but when the SIMS test is considered, this has the effect of bringing into question the presence of suspected malingering.
30Mses. Yong and Singh employed the following additional tests:
i. Pain Patient Profile (P-3);
ii. Post-Traumatic Stress Questionnaire (PCL-5);
iii. Accident Fear Questionnaire (AFQ) and
iv. Pain Catastrophizing Scale (PCS).
31Dr. Lotfalizadeh employed the following additional tests:
i. Structured Inventory of Malingered Symptomatology (SIMS); and
ii. World Health Organization Disability Assessment Schedule 2.0 (WHODAS 2.0)
32The applicant made submissions that although the report by Dr. Lotfalizadeh concedes that he exhibits severe depressive and anxious symptoms, the report paradoxically concludes there is no psychological impairment justifying treatment beyond the MIG. The applicant also submitted that Dr. Lotfalizadeh’s assessment and report makes an overreliance on the SIMS test, which flagged possible symptom exaggeration. The applicant further argued that SIMS is not definitive evidence of malingering, arguing that clinicians generally interpret it in conjunction with other standardized tests and clinical interviews.
33The respondent made submissions that the applicant’s expert report did not include any standalone validity testing or discuss the prospect of symptom magnification. Additionally, the respondent argued that the applicant’s expert report did not address what the embedded validity index within the Pain Patient Profile is meant to measure, only noting that the applicant provided a valid profile.
34When assessing the competing expert reports, I place more weight on the report by Dr. Lotfalizadeh over the report by Mses. Yong and Singh for the following reason. Dr. Lotfalizadeh’s report employs validity testing (SIMS) as a standalone test and provides the implications for the results of the other measures in the assessment, which is not the case in the Yong and Sing report. I agree with the respondent that the Yong and Singh report does not employ any standalone validity testing; however, I find that this is not necessarily determinative of the issue in dispute.
35As such, I turn to an examination of corroborating evidence, if any, to establish whether the applicant has met his burden of proof in proving a psychological impairment as a result of the accident to warrant removal from the MIG. The OCF-3, listed previously, also identified psychological impairments including nervousness, fatigue, emotional shock and stress as injuries resulting from the accident. The disability certificate, however, was completed by a chiropractor. The Tribunal has held that medical practitioners cannot opine on areas outside their sphere of expertise and in this case, a chiropractor’s diagnosis of psychological impairments would fall outside of a chiropractors’ area of expertise. I agree with the respondent that the applicant has not pointed to evidence of any complaints of a psychological nature to a treating family physician or other medical practitioner on a consistent basis. In the CNRs of Dr. Omotayo Oladele Adeniyi dated October 19, 2023, and April 11, 2024, respectively, there is no mention of any complaints of nervousness, emotional shock, fatigue or other psychological impairments. The onus is on the applicant to prove on a balance of probabilities that he has psychological impairments as a result of the accident that would remove him from the MIG. I have not been persuaded that is the case.
36For the reasons stated above, I find the applicant is not entitled to be removed from the MIG based on a psychological impairment as a direct result of the accident.
Since the applicant has not demonstrated that removal from the MIG is warranted the treatment plans are not reasonable and necessary
37I find that the applicant has not demonstrated that removal from the MIG is warranted. As the parties have not provided what amounts, if any, remain available under the MIG limits, I find that such amounts are payable to the remaining limits of $3,500.00.
38As a result, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.
Interest
39As there were no overdue payments found, no interest is payable under s. 51.
ORDER
40For the reasons outlined above, I find that on a balance of probabilities:
i. The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.
ii. The applicant is not entitled to treatment for psychological services and a psychological assessment.
iii. The applicant is not entitled to the treatment plans for chiropractic services.
iv. No interest is payable.
Released: December 19, 2025
Jim Zotalis
Adjudicator