Citation: Lennon v. Certas Home and Auto Insurance Company, 2025 ONLAT 23-000165/AABS

Licence Appeal Tribunal File Number: 23-000165/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:

Omario Lennon

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Dominique Setton

APPEARANCES:

For the Applicant: Neha Kohli, Paralegal

For the Respondent: Nathan Fabiano, Counsel

HEARD: In Writing January 10, 2025

OVERVIEW

1Omario Lennon, the applicant, was involved in an automobile accident on August 18, 2019, 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, Certas Home and Auto 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 $2,593.58 for Chronic Pain Assessment proposed by Mark Goldstein, submitted on January 19, 2021, and denied on January 20, 2021?

iii. Is the applicant entitled to $2,486.00 for Psychological Assessment proposed by Rick Lindai, submitted on January 19, 2021, denied January 20, 2021?

RESULT

3I find the applicant’s injuries are predominantly minor as defined by the MIG.

4I find the treatment plans at issue are not payable as the applicant is held to the funding limit of the MIG so there is no need to conduct the reasonable and necessary analysis.

ANALYSIS

Are the applicant’s injuries predominantly minor as defined by in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit?

5The applicant did not meet his onus to establish that removal from the MIG is warranted. I find that the applicant’s injuries are predominantly minor as defined by s. 3 of the Schedule and are therefore subject to treatment within the $3,500.00 limit.

6Section 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 sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury.

7An insured can 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 the 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.

8The applicant relies on his complaints to his family doctor, Dr. Gus Meglis, and also his treatment records from Physiotherapy One, where he obtained therapeutic treatment, for removal from the MIG. He claims that his medical evidence, in particular the clinical notes and records of his family doctor, reveals that he was suffering from chronic pain and is sufficient to remove him from the MIG, and that the continuing pain would lead to a psychological impairment that also would remove him from the MIG. The applicant also submits that his subjective pain complaints must be considered, and not only the objective evidence.

9The respondent relies on objective medical evidence from the applicant’s family doctor’s clinical notes and records.

10The applicant was first assessed at the hospital, on August 18, 2019, where he complained of pain to his left arm, for which he was given Tylenol and diagnosed with soft tissue injury and discharged that day.

11He visited his family doctor a few days later on August 22, 2019 because he was still suffering from left arm pain, migraines, and pain on his left side. At that time, his family doctor diagnosed him with a soft tissue injury, and recommended massage therapy, physiotherapy and that he take some days off work. It was confirmed by his family doctor that there were no medical reports before 2019. As a result, there was no pre-existing medical condition.

12The applicant returned to his family doctor on January 24, 2020, where he complained that his lower back pain got worse in the cold weather, and he had trouble sleeping due to the pain.

13The applicant works at the airport as a baggage handler, which requires him to lift heavy items repeatedly throughout the day. The applicant submits that the weather and his job as a baggage handler aggravated his condition.

14The respondent submits that this second visit to his family doctor was five months after the motor vehicle accident, and that the applicant made no mention of the accident. At that time, he only complained about low back pain and that the cold weather was affecting it, despite taking Advil. The family doctor again evaluated him, determined there was no new trauma, and recommended physiotherapy and that he be on modified duties at work for about two weeks, until February 8, 2020. Despite the submissions of the applicant, the family doctor did not find that any prior condition was aggravated, as he determined that there was no new trauma. The applicant had not made any visits in the five intervening months and had not provided evidence to support that he had ongoing pain during this period for removal from the MIG, that was causing functional impairment where he was able to work in a physically demanding job.

15On February 8, 2020, at his follow up appointment, the applicant told his doctor that he felt he could go back to his regular work duties. After evaluating him, his doctor determined that he had good range of motion, some spinal tenderness, and some pain with flexion. He was to continue physiotherapy and his doctor requested an x-ray. He provided the applicant with a letter instructing the employer he could return to his regular duties.

16The applicant submits that he was “compelled” to go back to work “driven perhaps by economic necessity or personal determination”, and that the family doctor requested x-rays because of a “suspected transition” from acute to chronic back pain. The doctor’s clinical notes and records do not state there was a suspected transition from acute to chronic pain. The notes of the family doctor requested an xray, after assessing him, and determining the applicant could go back to work.

17I find that the applicant himself requested to his family doctor that he go back to his regular job duties on February 8, 2020, approximately six months after the accident. The applicant’s return to work in such a physical job is not consistent with his claim of significant pain. The applicant’s claim does not align with his request to work at his regular duties.

18The imaging requested by the family doctor, dated October 23, 2020, showed that the applicant’s lumbar images were normal. I found this was important evidence, as it showed that the applicant’s doctor was making sure there was no abnormality in the images, and none were found, confirming his doctor’s diagnosis. The applicant can have pain but the legal test is pain with functional impairment.

19The applicant has not demonstrated that his return to regular work duties was based on economic necessity as he told his doctor he was ready to go back to work. Similarly, he was not diagnosed with chronic pain by his family physician and the applicant has not engaged with the criteria for chronic pain under the AMA Guides to demonstrate his impairment in the absence of a diagnosis. Accordingly, here is therefore no compelling evidence of chronic pain causing functional impairment as the applicant voluntarily requested to return to his job as a baggage handler, did not complain about any pain having to do with the accident when he did visit his doctor five months after the first visit, and the pain he complained about related to the change in weather. As a result, I find that the applicant has not demonstrated that the accident resulted in chronic pain that has a functional impairment.

20With respect to a psychological condition, the applicant submits that his psychological condition is “hinted at” because of his determination to return to work despite the pain, a reduction in therapy sessions, and reliance on self medication, and that even without a diagnosis it is a benefit to the applicant to have a psychological assessment. In short, while I am alive to the applicant’s submissions, the applicant did not rely on any medical evidence to support the need for the psychological assessment or to support his removal from the MIG on the basis of an accident-related psychological impairment. Accordingly, I cannot find that he has successfully demonstrated that removal from the MIG is warranted on this ground.

21I find the applicant’s injuries are predominantly minor as defined by the Minor Injury Guideline and so I conclude he is held to the funding limit of the MIG.

22I find the treatment plans at issue are not payable as the applicant’s injuries are predominantly minor, and he is being held to the funding limit of the MIG. There is no need to consider whether the plans are reasonable and necessary.

ORDER

23For the above reasons, I find:

i. The applicant’s injuries are predominantly minor and therefore subject to the Minor Injury Guideline.

ii. The treatment plans at issue are not payable as the applicant’s injuries are predominantly minor and subject to the MIG limits.