Citation: Guiam v. Wawanesa Mutual Insurance Company, 2025 ONLAT 24-002922/AABS

Licence Appeal Tribunal File Number: 24-002922/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:

Mark Guiam

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Laura Goulet

APPEARANCES:

For the Applicant:

Michael Yermus, Counsel

Karl Girdhari, Counsel

For the Respondent:

Aliza Lalji, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mark Guiam, the applicant, was involved in an automobile accident on May 13, 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, Wawanesa Mutual 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 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 the following physiotherapy services:

1. $957.55 ($2,053.06 less $1,095.51 approved) proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated October 20, 2022?

2. $1,301.15 proposed by Ajax Rehabilitation Centre (“ARC”) in a plan dated May 11, 2023?

3. $2,938.40 proposed by ARC in a plan dated June 13, 2023?

4. $1,700.00 proposed by ARC in a plan dated March 28, 2024?

iii. Is the applicant entitled to $2,200.00 for a chronic pain assessment proposed by Oshawa Physiotherapy and Rehabilitation Centre (“OPRC”) in a plan dated June 28, 2023?

iv. Is the applicant entitled to $11,953.12 for multidisciplinary chronic pain treatment services proposed by OPRC in a plan dated December 1, 2023?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.

4Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.

5The respondent is not liable to pay an award.

6The applicant is not entitled to interest.

ANALYSIS

Applicability of the MIG

7Section 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.”

8An 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 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.

9The applicant submits that his injuries do not fall within the MIG because he is suffering from a chronic pain condition because of the accident. He also submits that he should be removed from the MIG on psychological grounds.

The applicant does not have chronic pain that would remove him from the MIG

10The applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with functional impairment because of the accident that would remove him from the MIG.

11The applicant relies on the OCF-3 dated August 11, 2022 that was prepared by Bhavnaben Parmar, physiotherapist, indicating that he sustained the following accident-related physical injuries: headache, sprain and strain of the cervical spine, neck, thoracic spine, lumber spine, sacroiliac spine, and right shoulder joint.

12The applicant further relies on the s. 25 Chronic Pain Assessment Report dated November 20, 2023 of Dr. Atiemo Kessie, physician, which indicates the following:

i. The applicant reported no longer being physically and socially active, like he was prior to the accident, in part due to pain.

ii. The applicant reported a decrease in his ability to perform instrumental activities of daily living independently due to pain aggravation.

iii. Dr. Kessie diagnosed the applicant with post-traumatic headaches, sprain and strain of the cervical spine, thoracic spine, lumbosacral spine and left shoulder, and chronic pain syndrome.

iv. Dr. Kessie opined that the applicant’s chronic pain syndrome coupled with his psychological health concerns would remove him from the MIG.

13The applicant also relies on the following medical documentation:

i. The clinical notes and records (“CNRs”) from ARC dated June 21, 2022, indicate that he reported having difficulties or requiring assistance at a “moderate” level with cleaning (sweeping, mopping, vacuuming), dishes, social activities (going out, visiting friends), recreational activities (gym, sports, hobbies), driving and public transportation, lifting, carrying, overhead activities, pushing and pulling, sustained postures, and repeated movements.

ii. During a visit with his family physician, Dr. C.P. Chang, on September 18, 2023, the applicant reported not driving for four months due to the accident, having pain in both arms with pins and needles sensation, and lower back pain. Dr. Chang assessed the applicant with lower back pain, shoulder pain, and chronic pain.

iii. On December 23, 2023, the applicant reported to Dr. Alborz Oshidari, physiatrist, during a s. 44 Insurer’s Examination (“IE”), that he experienced pain around the left shoulder, sometimes numbness or tingling in both hands, daily pain in the lumbar area, and he was not involved in heavy household duties.

iv. Based on an MRI of the cervical spine on January 30, 2024, Dr. Kalesha Hack, physician, diagnosed the applicant with moderate to severe right and moderate left foraminal stenosis at C5-6, which could result in impingement of the exiting C6 nerve roots.

v. On February 8, 2024, the applicant reported to Zubina Ladak, psychological associate, during a s. 44 IE, that he no longer assists with cooking, cleaning and grocery shopping, and that some days pain affects his sleep.

vi. The applicant attended for treatment at ARC in 2022, 2023, and 2024. An OCF-18 from ARC dated March 28, 2024 noted that the applicant was still having problems with bending, lifting, carrying, pushing, overhead activities, repeated tasks, and sustained postures.

14The applicant relies on decisions of the Tribunal in submitting that chronic pain is a condition that persists for three to six months, and a formal diagnosis is not required to remove an applicant from the MIG: see C.G. v. The Guarantee Company of North America, 2020 CanLII 40333 (ON LAT) and A. A. v. Technology Insurance Company Inc., 2020 CanLII 12719 (ON LAT) (“A. A.”).

15I am not bound by other decisions of the Tribunal. I agree, however, with the reasoning in A. A., which, in finding that the applicant suffered from chronic pain, also found that there was functional impairment. I find that, to be removed from the MIG due to chronic pain, the applicant must demonstrate on a balance of probabilities that there was accompanying functional impairment.

16The respondent submits that the CNRs dated June 21, 2022 from ARC indicate that:

i. The applicant’s treating physiotherapist listed soft-tissue injuries of the cervical and lumbar spine and right shoulder, which were noted as being capable of being treated within the MIG.

ii. Prognosis for recovery was described as “excellent.”

iii. The applicant reported that he returned to work full time from home as a business owner – children programming.

iv. The OCF-3 dated August 11, 2022 indicates that the applicant’s anticipated recovery time was nine to twelve weeks.

17The respondent also points out that the applicant had only one appointment with his family physician, Dr. Chang, in relation to the accident, which was on September 18, 2023, over one year and four months after the accident. The respondent submits that Dr. Chang identified the applicant’s accident-related injuries to be pain in his arms and lower back, which are consistent with minor injuries as defined in the Schedule. The applicant had a telephone appointment with Dr. Chang on August 23, 2022 for sleep apnea, however he did not discuss the accident.

18The respondent argues that, since Dr. Chang did not assess or meet with the applicant for a period of sixteen months post-accident and did not note having reviewed any of the applicant’s treatment records, his indication of “chronic pain” is not rooted in medical evidence but rather is based on the applicant’s reporting on one occasion.

19The respondent submits that the applicant has inconsistently reported his abilities with respect to activities of daily living as follows:

i. About a month after the accident, as set out in the CNRs from ARC dated June 21, 2022, the applicant reported being able to prepare food, do laundry and grocery shop without any issue, and requiring “moderate” assistance with other activities of daily living, including social and recreational activities, as set out in his submissions above. The only activities he identified to be “limited” were sleeping (noted as “uncomfortable”) and bending/twisting (noted as “stiff’).

ii. During his assessment with Dr. Kessie on October 10, 2023, the applicant reported not being able to do laundry or cooking without experiencing severe pain, and that he required assistance with grocery shopping. I note that the applicant reported the same to Zubina Ladak on February 8, 2024, as indicated above.

20The respondent questions Dr. Kessie’s diagnosis of chronic pain syndrome, pointing out that Dr. Kessie simply stated that the applicant met four of the six criteria for chronic pain as set out in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6^th Edition, 2008, pp. 23-24 (“Guides”), as follows, without conducting any analysis:

i. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain.

ii. Withdrawal from the social milieu, including work, recreation, or other social contracts.

iii. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.

iv. Development of psychosocial sequelae after the initial incidents, including anxiety fear-avoidance, depression, or nonorganic illness behaviour.

21Dr. Kessie then indicates that he would defer to the appropriate mental healthcare specialist for comment on the applicant’s psychological injuries. The respondent questions how Dr. Kessie can speak to the “development” of anxiety fear-avoidance, etc., and then immediately defer comments on the applicant’s psychological injuries to the appropriately trained specialist. The respondent further submits that the applicant’s self-reporting of his symptomatology to Dr. Kessie demands scrutiny with respect to activities of daily living and psychological impairments, which could have the effect of eliminating some of the above Guides criteria.

22The respondent also submits that the Tribunal should place more weight on Ms. Ladak’s February 8, 2024 psychological assessment, where the applicant denied:

i. Cognitive difficulties, such as memory loss or difficulty processing information or making decisions.

ii. Generalized feelings of anxiety, panic attacks, or accident-related flashbacks or nightmares.

iii. Fear with motor vehicle travel.

iv. Taking any medication.

23The respondent submits that, although the applicant reported to Ms. Ladak having some sleep difficulties due to pain, causing fatigue, which prevented him from attending his daughter’s recreational events and socializing with friends as often, he admitted that having a newborn played a role. The respondent further points out that the applicant suffers from sleep apnea.

24I also note that the applicant reported to Ms. Ladak that he continued to enjoy life, and that his interest and motivation in previously enjoyed activities remained intact and his self-esteem and confidence were positive. Further, the applicant reported continuing to communicate with friends through text messages and social media and gathering with family every weekend for dinner.

25I place little weight on Dr. Kessie’s diagnosis of chronic pain. I find that Dr. Kessie provided conclusions at the end of his report that the applicant met four criteria for chronic pain as set out in the Guides, without a summary of the evidence, any indication regarding which evidence he found to be significant, or any analysis with respect to how he came to his conclusions. Further, the applicant’s reporting to Ms. Ladak that he maintained interest and motivation in previously enjoyed activities, that he continued to enjoy life, that he continued to communicate with friends, and that he attended weekly family dinners, calls into question Dr. Kessie’s findings that the applicant has withdrawn from his social milieu.

26I am not satisfied on a balance of probabilities that the applicant suffers from functional impairment due to chronic pain. Of significance, I note the inconsistency in his reporting with respect to his activities of daily living to his treatment providers at ARC on June 21, 2022, about a month after the accident, and his reporting to assessors Dr. Kessie on October 10, 2023, and Ms. Ladak on February 8, 2024. I also note that the applicant reported to Ms. Ladak that he took one week off after the accident to organize and complete paperwork with respect to the accident and then returned to work at his regular hours and duties. He advised that he no longer instructed staff on coaching due to pain, but instead, delegated that task to other employees. He further reported that he is managing his job and has been told that his performance is “great.”

27For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that he suffers from chronic pain causing functional impairment because of the accident that would remove him from the MIG.

The applicant does not have a psychological condition that would remove him from the MIG

28The applicant has not met his onus of proving on a balance of probabilities that he has a psychological condition that would remove him from the MIG.

29The applicant refers to the following evidence that might indicate a psychological condition:

i. The OCF-3 dated August 11, 2022 that was prepared by Bhavnaben Parmar, physiotherapist, indicates that the applicant had anxiety and sleep problems due to the accident.

ii. On October 10, 2023, he reported the following to Dr. Kessie: anxiety, sadness, irritability, withdrawal, loneliness, mood swings, lack of patience and tolerance, low mood and energy, lowered ability to focus and concentrate, and vehicular anxiety as a driver and passenger. The applicant also reported that he no longer enjoys social activities in part due to emotional distress.

iii. Dr Kessie opined that the applicant’s chronic pain syndrome coupled with his psychological health concerns would remove him from the MIG.

iv. On February 8, 2024, the applicant reported to Zubina Ladak, that some days he feels irritable and frustrated due to pain that affects his sleep, and that his concentration has been impacted.

v. During Ms. Ladak’s testing on the Beck Depression Inventory, the applicant’s score fell within the mild range of depressive symptomatology. and on the Beck Anxiety Inventory, his score fell within the mild range of anxiety. Ms. Ladak found that the applicant had not sustained a clinically significant impairment. The applicant submits that given the objective findings and the fact that Ms. Ladak could not definitively state there was no psychological impairment, the applicant should have been removed from the MIG on psychological grounds.

30I also note that in addition to the psychological testing referred to by the applicant, Ms. Ladak performed the Pain Profile (P3). The applicant’s Pain Profile results showed below average scores on the depression and anxiety scales. Ms. Ladak indicated that below average scores on the depression scale suggest emotional stability, optimism, and self-confidence, and below average scores on the anxiety scale suggest adaptability, relaxation, self-confidence and security. Based on a review of medical documentation, the applicant’s responses during an interview, as well as the results of the psychological testing, Ms. Ladak concluded that the applicant was coping well emotionally, and that from a psychological perspective, he sustained a minor injury because of the accident. I am persuaded by Ms. Ladak’s report because she provides a clear summary of the evidence which supports her conclusions.

31I have considered that on one occasion, sixteen months after the accident, when the applicant did report accident-related injuries to his family physician, he did not report any psychological symptoms. Further, the applicant does not direct me to his reporting of psychological symptoms to any treatment providers other than to his physiotherapist on one occasion, i.e. August 11, 2022. I note there is a gap in reporting from August 11, 2022, until the applicant next reports psychological symptoms to his assessors, beginning on October 10, 2023, fourteen months later.

32Given Ms. Ladak’s findings, as well as the applicant’s minimal reporting of psychological symptoms since the accident, I am not persuaded that he has a psychological condition stemming from the accident.

33For these reasons, I find that the applicant has not met his onus of demonstrating on a balance of probabilities that he has a psychological condition that would remove him from the MIG.

34For the reasons set out above, I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.

35As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.

Award

37The 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. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.

ORDER

38For the above reasons, I find:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.

ii. Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.

iv. The respondent is not liable to pay an award.