Licence Appeal Tribunal File Number: 24-005498/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:
Theebhigha Nagabaskaran
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Maka Metreveli, Paralegal
For the Respondent:
Eluxmeenah Rishihesan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Theebhigha Nagabaskaran, the applicant, was involved in an automobile accident on January 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:
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? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to the services proposed by 101 Assessment as follows:
i. $2,460.00 for a psychological assessment, in a treatment plan (“OCF-18”) dated February 21, 2023;
ii. $3,790.70 for a psychological assessment, in an OCF-18 dated March 27, 2023; and,
- Is the applicant entitled to the services proposed by Mackenzie Medical Rehabilitation as follows:
i. $3,622.73 for chiropractic services and massage therapy, in an OCF-18 dated January 25, 2023;
ii. $2,023.03 for chiropractic services, in an OCF-18 dated June 6, 2023; and,
iii. $1,525.84 for chiropractic services, in an OCF-18 dated August 4, 2023?
Is the applicant entitled to $2,907.20 for chiropractic services, proposed by Dr. Nelantine Jesuthasa, in a plan dated November 4, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew her disputes regarding her entitlement to an income replacement benefit and an orthopedic assessment. As a result, these issues will not be addressed as part of this decision.
RESULT
4The applicant sustained injuries that fall within the definition of a minor injury and is therefore subject to treatment within the MIG. As a result, she is not entitled to the OCF-18s in the dispute or interest.
ANALYSIS
The applicant sustained a minor injury which is treatable in the MIG.
5Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”
6An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.
7The applicant argues that she should be removed from the MIG because she had a documented pre-existing medical condition (anxiety) which would prevent recovery within the MIG. She also maintains that she sustained a psychological impairment and chronic pain which warrants removal from the MIG. In support of her position, she relies on the clinical notes and records (“CNRs”) of Dr. Ifill, family doctor and Amita Singh, psychotherapist. She also relies on the report of Dr. Papazoglou, psychologist dated March 21, 2023 who diagnosed her with a psychological impairment.
8The respondent argues that the applicant’s accident-related impairments fall within the definition of a minor injury. It submits that the applicant has not met her onus in proving that she should be removed from the MIG as a result of any of the above criteria. It relies on the insurer examination (“IE”) reports of Dr. Moolla, general practitioner dated April 25, 2023, and paper review dated June 30, 2023 who determined that the applicant sustained soft tissue injuries which could be treated in the MIG. It also relies on the IE report of Dr. Mandel, psychologist dated April 25, 2023, and subsequent paper review who found that there was no evidence of psychological impairment.
Pre-existing Condition/Psychological Impairment
9I find the applicant is not removed from the MIG due to a pre-existing condition or psychological impairment for the following reasons.
10The applicant argues that she should be removed from the MIG due to a pre-existing medical condition because she was diagnosed with anxiety in 2018 and was receiving counselling from a psychotherapist at her college prior to the accident. However, she submits that following the accident her anxiety has relapsed and has developed into a psychological impairment.
11It is well established law that a documented pre-existing condition on its own does not automatically remove a person from the MIG. There must be compelling medical evidence from a treating practitioner supporting that the pre-existing condition would prevent the applicant from maximal recovery if subject to treatment within the MIG limits. Although I acknowledge that the applicant was seeing a school counsellor prior to the accident, I find that I have not been pointed or directed to evidence from a treating practitioner that this condition was exacerbated or would prevent maximal recovery if subject to treatment within the MIG limit. Now I will address whether the accident resulted in any new psychological impairments.
12The applicant relies on the CNRs of Ms. Singh from October 2021 to March 2022, which support that she was attending counselling prior to the accident where she primarily talked about navigating various relationships. She also relies on three post-accident CNRs, which support that she attended three counselling sessions between January 30 and February 23, 2023, where she complained of low back pain, fears of driving on the highway and feeling guilty about not being able to function as well as she did pre-accident. Although these notes support that the applicant talked to her therapist about the accident and ongoing back pain – there is no opinion from the therapist that the applicant’s pre-accident anxiety was exacerbated. Overall, I find these CNRs vague and the fact that she attended three times post-accident does not support a significant increase in visits. Further, I do not find these three CNRs establish that the applicant sustained a psychological impairment as a result of the accident.
13I find the evidence regarding whether the applicant sustained any accident-related psychological impairment unclear. Both parties rely on conflicting psychological reports, however, they do not make meaningful submissions regarding which expert opinion I should prefer and why. I note that the assessments were conducted a month apart and the results were vastly different.
14For example, the applicant relies on the psychological report of Dr. Papazoglou, from March 2023, which notes that she appeared sad and overwhelmed as she spoke about the various limitations in her life as a result of the accident. She reported that completing her school readings was difficult and she needs to take frequent breaks, and she had not been able to return to her job at a photography company. She also reported getting 5 to 7 hours of interrupted sleep per night leading to pain, low mood and irritability. She reported having a hard time focussing and issues with memory and that she no longer sees friends and is socially withdrawn. She also reported experiencing driving anxiety. Dr. Papazoglou diagnosed the applicant with adjustment disorder (with mixed anxiety and depressed mood); and specific (isolated) phobia driving/passenger.
15In contrast, the respondent relies on the IE report of Dr. Mandel where the applicant reported that her mood was ok, she was driving, she was handling her school placement and schoolwork. She was changing her bed sheets and keeping her room clean. She was also spending time with friends and going out to restaurants, coffee shops, and hanging out at friend’s homes, and spending time with her boyfriend. According to Dr. Mandel, the applicant denied experiencing any issues with memory and concentration. Dr. Mandel opined that there was a lack of consistent objective information present to support a psychological diagnosis. The doctor acknowledged the applicant’s pre-existing history of anxiety, however, determined that this would not preclude the applicant from achieving maximum medical recovery within the MIG.
16I find the applicant’s presentation and self-reports to both doctors inconsistent. Further, I was not provided with any explanation to clarify the discrepancies between the assessments when they were completed less than one month apart. Overall, I prefer the opinion of Dr. Mandel over Dr. Papazoglou because Dr. Mandel reviewed medical records in coming to their conclusion, whereas Dr. Papazoglou relied on the applicant’s self-reports (which I find inconsistent) and did not review any medical records.
17I conclude that on a balance of probabilities, the applicant has not proven that she sustained a psychological impairment as a result of the accident which would remove her from the MIG. Now I will address whether she is removed from the MIG due to chronic pain.
Chronic Pain
18I find that the applicant is not removed from the MIG due to chronic pain for the following reasons.
19First, I find the applicant’s family doctor’s CNRs unhelpful in establishing that she suffers from chronic pain. The CNRs establish that she attended her family doctor’s office the day following the accident where she complained of back, neck, shoulder pain and headaches. The doctor prescribed baclofen and naproxen and recommended physiotherapy. The CNRs support that she attended five more times in 2023 where she complained of ongoing back pain. In a CNR dated March 23, 2023, her family doctor diagnosed her with spinal osteoarthritis and degenerative changes in her low back. A CNR dated July 31, 2023, the family doctor diagnosed her with chronic back pain and referred her to a pain clinic. I find the applicant has not linked her diagnoses of spinal osteoarthritis to the accident. The applicant then attended her family doctor’s office twice in 2024 where she reported ongoing back pain. I note that other than the applicant reporting that she experienced pain when driving, the family doctor does not identify any accident related impairments which resulted in any functional limitations which is a requirement to be removed from the MIG due to chronic pain.
20Second, a consult note dated September 20, 2024, of Dr. Ismail, a doctor at the pain clinic indicates that the applicant presented with chronic lumbar back pain. The applicant reported that the pain was worse with extended sitting and standing. The doctor diagnosed the applicant with lower lumbar spondylosis. The doctor’s physical examination was normal and there was evidence of myofascial pain and the doctor recommended core back exercises. I find Dr. Ismail’s diagnosis of lumbar spondylosis consistent with the family doctor’s diagnosis of osteoarthritis and degenerative changes. I do not find that this note establishes that the applicant suffers from chronic pain as a result of the accident.
21Third, the applicant relies on the Tribunal’s decision in Heifa v. Wawanesa, 2021, CanLII 108364 (ON LAT) (“Heifa”) where the adjudicator determined that the insured was removed from the MIG due to chronic pain and preferred the evidence of the applicant’s assessors over the respondent’s s. 44 IEs. I find this case is distinguishable from the facts in Heifa because in that case the adjudicator had two expert reports (one a chronic pain specialist) who conducted a thorough physical examination which demonstrated that the insured had significantly restricted range of motion (“ROM”) in the lumbar spine which resulted in a marked impairment in function. Although I note that an expert report is not required, I find that the applicant’s family doctor’s CNRs establish that she reported ongoing back pain following the accident and there was a diagnosis of osteoarthritis of the lumbar spine and degenerative changes of the low back which I find to be unrelated.
22Finally, in contrast the respondent relies on the IE reports of Dr. Moolla. The doctor noted that the applicant walked with a normal gait and did not exhibit any pain behaviours while sitting and standing and she sat comfortably during the interview without shifting. The doctor’s physical examination revealed tenderness in the L1 to SI bilaterally. However, the results of the ROM testing of the applicant’s lumbar spine was normal with no evidence of radiculopathy. The doctor diagnosed the applicant with lumbosacral myofascial strain and the prognosis for a full recovery was good. I accept Dr. Moolla’s opinion because the doctor reviewed the medical records and conducted a physical examination which was normal.
23[For the above-noted reasons, I find that the applicant is not removed from the MIG due to chronic pain.
Denial letter non-compliant with s. 38(8) of the Schedule
24Section 38(8) of the Schedule outlines that within 10 days of receiving a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
25The applicant submits that the respondent’s denial letter in response to the OCF-18 dated November 4, 2023 for chiropractic services in the amount of $2,907.20 dated November 14, 2023 did not comply with s. 38(8) of the Schedule. The respondent’s denial stated “Based on the information on file, your injuries fall under the Minor Injury Guideline. Given this, the OCF-18 is denied based on the following medical and all other reasons: The provider who completed the OCF-18 has indicated your injuries are not predominantly minor in nature. However, there is a lack of documentation on file that would support your removal from the MIG.”
26I find that other than quoting from the Tribunal’s decision in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) where the Executive Chair provides guidance for what should be included in an insurer’s notice denying a benefit, the applicant did not articulate how the respondent’s notice did not comply with s. 38(8) of the Schedule. I also find the applicant’s submissions regarding the content of the notice selective in that after it stated that the applicant sustained a minor injury it requested the CNRs from her family doctor and treating clinic.
27I find that the respondent’s notice denying the OCF-18 complied with s. 38(8) of the Schedule in that it responded to the OCF-18 within 10 days and identified the OCF-18 that was being denied because it was taking the position that the applicant sustained a minor injury. Further, it requested the applicant to submit the CNRs of her family doctor and clinic. Based on the fact that the respondent did not have any CNRs I find its reasons for denying the OCF-18 sufficient.
The applicant is not entitled to interest.
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.
ORDER
29For the above-noted reasons, I order as follows:
The applicant sustained a minor injury and is therefore subject to treatment within the MIG. As a result, she is not entitled to the OCF-18s in the dispute or interest.
The application is dismissed.
Released: January 8, 2026
Rebecca Hines
Adjudicator```