Citation: Marufujjaman v. TD General Insurance Company, 2025 ONLAT 23-003725/AABS

Licence Appeal Tribunal File Number: 23-003725/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:

Hm Marufujjaman

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Doina Marinescu, Paralegal

For the Respondent:

Hodson Harding, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hm Marufujjaman, the applicant, was involved in an automobile accident on December 5, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

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 the treatment proposed by E Clinic United Healing as follows:

i. $2,433.60 for psychological assistive devices, in a treatment plan, submitted October 6, 2022; and

ii. $2,929.23 for psychological services, in a treatment plan submitted October 6, 2022?

iii. Is the applicant entitled to the treatment proposed by Q Medical as follows:

i. $2,486.00 for a psychological assessment, in a treatment plan submitted April 20, 2022; and

ii. $2,510.07 for a psychiatric assessment, in a treatment plan submitted September 26, 2022?

iv. Is the applicant entitled to $1,760.00 for chiropractic services, proposed by Health First Maily Chiropractic in a treatment plan submitted September 29, 2022?

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

4Neither party dealt with or addressed the issue of entitlement to an income replacement benefit in the amount of $400.00 per week from December 13, 2021 and ongoing, that was listed in the Case Conference Report and Order. I therefore presume that this issue was withdrawn as an issue in dispute.

RESULT

5The applicant’s injuries are “minor injuries” as defined in the Schedule. The applicant is not entitled to the disputed treatment plans or interest.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

6I find that the applicant sustained a minor injury as a result of the accident and, therefore is subject to the $3,500.00 MIG funding limit on treatment.

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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

9In this matter, the applicant submitted that he should be removed from the MIG because he sustained chronic pain and/or a psychological impairment as a result of the accident.

a. The applicant is not removed from the MIG on the basis of chronic pain

10I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain that would remove him from the MIG.

11The applicant submits that he should be removed from the MIG because he suffers from chronic pain as a result of the accident; specifically, he submits that he continues to have persistent severe neck and back pain.

12To support his position, the applicant relies upon the clinical notes and records (“CNRs”) of Dr. Chia-Hao Hsu, family physician, and Dr. Clay Kosinko, chiropractor at Health First Family Chiropractic. The applicant further relies upon the necessity for continued physiotherapy and chiropractic care to support his ongoing pain complaints.

13The respondent submits that the applicant’s injuries are within the MIG. The respondent relies upon the Insurer’s Examination (“IE”) assessment of Dr. Shela Qadeer, general practitioner, dated November 10, 2022, which concluded that the applicant’s injuries were predominantly minor injuries. The respondent further relies upon the Xpera Surveillance Report, dated December 8, 2023, which showed the applicant able to walk, drive, carry large items, interact with various people and move his neck left to right with limited difficulty.

14I find that the applicant has provided insufficient medical evidence to support that he suffers from ongoing pain or chronic pain and that he has a corresponding functional impairment as a result of the accident for the following reasons.

15Firstly, the Disability Certificate, prepared by Dr. Clay Kosinko, chiropractor, dated March 23, 2022, lists the applicant’s injuries as whiplash WAD III, subluxation complex, other specified soft tissue and myalgia multiple sites. The injuries listed, however, are all injuries that fall within the Schedule’s definition of minor. There is no mention of chronic pain.

16Secondly, the applicant has provided limited records from Dr. Kosinko, chiropractor. There are only three CNRs provided by Dr. Kosinko, dated February 8, 16 and 23, 2022. There are physiotherapy progress notes from the clinic provided dated March 7 to 30, 2022 which are not legible. The report prepared by Dr. Kosinko, dated April 6, 2022, notes the applicant had received 21 physiotherapy sessions and 20 chiropractic sessions from December 30, 2021 to April 6, 2022, yet the complete CNRs have not been provided. The report further notes that the applicant has been progressing slower than expected. Dr. Kosinko notes that the recently received Cervical MRI may be the cause for such a slow recovery, but he does not provide an interpretation of the MRI results. Continued conservative chiropractic care with physiotherapy is recommended. I find that the applicant did not provide any further records of Dr. Kosinko and there is no indication that the applicant continued to attend for any further treatment after April 6, 2022, with respect to his ongoing complaints, based on the records provided.

17Thirdly, the applicant is relying upon the CNRs of Dr. Hsu, family physician. The first CNR dated January 3, 2022, states that the applicant has severe neck pain, lower back pain, and right shoulder pain as a result of the accident. It notes that he receives chiropractic care and takes Naproxen. On February 2, 2022, the applicant was seen for “severe neck pain goes to the arm”, headaches on and off, right arm and right leg numbness, and not sleeping well. On March 24, 2022, he was seen for neck and back pain and reports that he receives physiotherapy and chiropractic treatment. Dr. Hsu notes if he works for more than two hours, he has severe pain. This March 24, 2022 note is the first mention of the MRI, and all that is stated is that the MRI was reviewed and that the applicant is not a surgical candidate. There is no interpretation of the results of the MRI provided. On June 27, 2022, the applicant was seen with upper back pain. The applicant reported that his lower back pain is improving. The CNR notes that the applicant needs more physiotherapy. The next CNR is dated December 14, 2022 where the applicant complains of right trapezius pain in a telephone appointment. The applicant was advised to follow-up in person. The last CNR in the file is dated December 18, 2022 which states “chronic neck pain, trigger points”. The note indicates the applicant can turn his neck less than 50%. Dr. Hsu refers the applicant to the Chronic Pain Management Centre for possible trigger point injections. I find that there are no other clinical notes provided of Dr. Hsu and there is no evidence that the applicant was seen by Dr. Hsu for ongoing symptoms or complaints after December 18, 2022. I further find that there are no records provided from Chronic Pain Management Centre, to support that the applicant was seen following the referral to this clinic or that any trigger point injections were received.

18Fourthly, I find the letter To Whom It May Concern, dated December 6, 2023, prepared by Dr. Hsu circumspect. The letter states that “As per the MRI he suffered spinal stenosis and herniated discs of the neck.” In the letter, Dr. Hsu notes that the applicant still needs ongoing chiropractic and physiotherapy which has helped his symptoms. It further notes that the applicant has been referred to a pain specialist. As stated above, there was no previous interpretation of the findings of the MRI in the CNRs provided by Dr. Hsu other than to state that he is not a candidate for surgery on March 24, 2022. The interpretation on the MRI report provided by the applicant in his submissions, is “mild degenerative changes within the cervical and lumbar spine as described. Slight Kyphosis of the cervical spine”. This interpretation differs from the comment of Dr. Hsu that the applicant suffered spinal stenosis and herniated discs of the neck. There are also no CNRs provided by Dr. Hsu in the year leading up to this letter to support that the applicant was seen by Dr. Hsu in respect to his ongoing complaints. It is also not clear as to who this letter was sent to or who requested that it be written.

19Finally, I find the IE report of Dr. Shela Qadeer, general practitioner, dated November 10, 2022, persuasive, that the applicant suffered a minor injury and that he has not demonstrated a functional impairment as a result of his ongoing pain. In her report, Dr. Qadeer noted that the applicant reported that the applicant recently resigned from Rogers as it required extensive traveling, driving and long hours. He reported that he is gradually getting back to his housekeeping and home maintenance tasks that he performed prior to the accident. The applicant did report that he is unable to work out and do heavy weight living that he performed prior to the accident. Dr. Qadeer found on his examination that the applicant had functional range of motion of his neck and there was no objective evidence of any residual musculoskeletal impairment attributable to the injuries sustained in the accident. The applicant did not make any submissions to refute the findings of Dr. Qadeer.

20I agree with the respondent’s submissions that the applicant has failed to comply with the production Order set out in the CCRO, dated November 27, 2023. I am unable to determine whether the applicant saw his family physician after December 18, 2022 or underwent any further investigations after that date due to the applicant’s failure to provide his Decoded OHIP summary in contravention of the CCRO Order. In addition, I find that the applicant’s submission that his occupational life has been disrupted as a result of the injuries suffered in the motor vehicle accident, is not supported by any evidence due to the applicant’s failure to comply with the CCRO and provide his employment files. I find that the applicant did not provide any submissions on these production requests or provide an explanation for his failure to comply with the CCRO. It is therefore appropriate for me to make an adverse inference from the applicant’s failure to produce the Decoded OHIP summary and the employment files requested by the respondent.

21For all the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment as a result of the accident and therefore, he is not removed from the MIG on this basis.

b. The applicant is not removed from the MIG on the basis of psychological injuries

22I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition that would remove him from the MIG.

23The applicant submits that he suffers a psychological condition as a result of the accident. In support of his position, he relies upon the report of Dr. Tony Toneatto, psychologist, dated September 3, 2022. Dr. Toneatto diagnosed the applicant with somatic symptom disorder with predominant pain, persistent; major depressive disorder, moderate, specific phobia, situational (driving) and generalized anxiety disorder. Dr. Toneatto recommended 12 sessions of cognitive-behavioural therapy.

24The respondent relies upon the IE Psychological report of Dr. Zubina Ladak, dated November 22, 2022 which concluded that from a psychological perspective, the applicant was not considered to have sustained a clinically significant impairment and he did not meet the criteria for a formal DSM-5 diagnosis.

25After reviewing the submissions, I am not satisfied that the applicant presented persuasive medical evidence that he suffers from a psychological condition that would remove him from the MIG. I give little weight to the report of Dr. Toneatto, as I am not pointed to any corroborating evidence that would substantiate this assessor’s findings. For example, the CNRs of Dr. Hsu, family physician, and Dr. Kosinko, chiropractor, did not report any psychological complaints from the applicant in the months leading up to Dr. Toneatto’s psychological assessment or following his assessment. I find that Dr. Toneatto’s diagnosis does not correlate with the applicant’s lack of reporting to other health care practitioners.

26I find the IE report of Dr. Ladak, persuasive. Dr. Ladak concluded based on her examination that the applicant was experiencing mild adjustment difficulties in response to the accident and his transition to a new country. Overall, she found that he is coping well, his symptoms of anxiety are subsiding, and he is actively engaged in those activities that he can physically manage. From a psychological perspective, Dr. Ladak concluded that the applicant did not sustain a clinically significant impairment and he did not meet the criteria for a formal DSM-5 diagnosis as it relates to the accident. I find that while the applicant may have experienced some psychological symptoms following the accident, based on the conclusions of Dr. Ladak, these are mere psychological sequalae, and not a psychological condition that would remove him from the MIG.

27For all the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition as a result of the accident and therefore he is not removed from the MIG on this basis.

The applicant is not entitled to the disputed treatment plans

28As the applicant continues to be within the MIG, the applicant is not entitled to the treatment plans in dispute recommending psychological assistive devices, psychological services, a psychological assessment, a psychiatrist assessment and chiropractic services.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the applicant continues to be within the MIG and there is no overdue payment of benefits, there is no interest payable.

ORDER

30For the reasons outlined above, I find:

i. The applicant’s injuries do not meet the definition of “minor injury” under the Schedule;

ii. The applicant is not entitled to payment of the treatment plans recommending psychological assistive devices, psychological services, a psychological assessment, a psychiatrist assessment and chiropractic services;

iii. The applicant is not entitled to interest; and

iv. The application is dismissed.