Catapang v. Co-operators General Insurance Company, 2025 CanLII 18233

Catapang v. Co-operators General Insurance Company, 2025 ONLAT 23-006041/AABS

Licence Appeal Tribunal File Number: 23-006041/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:

John Catapang Applicant

and

Co-operators General Insurance Company Respondent

DECISION

ADJUDICATOR: Roderick Walker

APPEARANCES:

For the Applicant: Andrej Rondas, Paralegal

For the Respondent: Alexander Dos Reis, Counsel

HEARD: By Way Of Written Submissions

OVERVIEW

1John Catapang, the applicant, was involved in an automobile accident on October 5, 2020, 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, Co-operators General 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 limit? Note: The parties agree the MIG limits have not been exhausted and further agree there is $ 116.50 remaining in the MIG.

ii. Is the applicant entitled to $2,310.00 for physiotherapy services proposed by Physiomed Yorkdale Inc.in a treatment plan/OCF-18 (“plan”) dated August 10, 2021?

iii. Is the applicant entitled to $388.50 for physiotherapy services, proposed by Physiomed Yorkdale Inc. in a plan dated June 11, 2021?

iv. Is the applicant entitled to plans, proposed by Downsview Healthcare Inc. as follows:

A) $3,485.98 for psychological services in a plan dated September 30, 2021; and

B) $3,384.69 for psychological services in a plan dated March 28, 2022?

v. Is the applicant entitled to $ 2,486.00 for chronic pain assessment proposed by Downsview Healthcare Inc. in a plan dated December 22, 2022?

vi. Is the applicant entitled to $200.00 for completion of a treatment and assessment plan July 26, 2021?

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

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

RESULT

3The applicant’s injuries are predominantly minor in nature and can be treated within the monetary limits of the MIG.

4As the applicant is in the MIG, I do not need to determine if the treatment plans are payable. The applicant is entitled to benefits up to the MIG limits.

5No interest is payable.

6The applicant is not entitled to an award.

7The application is dismissed.

PROCEDURAL ISSUES

8The respondent filed a notice of motion for an order to admit Facebook posts, which are dated: September 22, 2023, May 20, 2024, July 17, 2024. The motion materials were served on the applicant on July 23, 2024. The pictures include the applicant sleeping, bending at the lower back, squatting and other pictures of his trip to the Philippines in 2023 or 2024. The applicant has not responded to the notice of motion. The respondent seeks admission of these posts because it was the applicant that took them, and that the applicant would not be prejudiced by allowing these posts.

9I agree with the respondent, even in the absence of any submissions from the applicant, that the pictures or posts would not prejudice the applicant in this hearing. The applicant knows of these pictures and is aware of them as they are posted to Facebook. There is no prejudice to the applicant as he is aware of these posts. I order the admission of the Facebook pictures taken on the above dates.

ANALYSIS

Minor Injury Guideline (MIG)

10Section 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.”

11An 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.

12In this case, the applicant submits that he suffers from a chronic pain and a psychological impairment that warrant the applicant’s removal from the MIG. The respondent submits that the applicant has not met his onus to prove that his injuries are not predominately minor and that they cannot be treated within the confines of the MIG.

Do the monetary limits of the MIG apply to the applicant’s physical injuries?

13I find that the applicant has not proved on a balance of probabilities that he suffers from a physical l impairment that would remove him from the MIG.

14After the accident, the applicant complained of low back pain and attended at Humber River Hospital to be examined. He experienced neurological symptoms and was alert and oriented. He was diagnosed with a whiplash injury, prescribed benztropine 2 mg and ketorolac 10 mg (15 and 20Tablets) and discharged approximately three and a half hours after admission.

15The applicant submits that he suffers from chronic pain in complaint of neck stiffness and tenderness only, tension type headache, sprain and strain of lateral collateral ligament of knee, radiculopathy cervical sprain, strain of lumbar spine and lower back pain. He relies on a plan from Dr. by Dr. Grigory Karmy of Downsview Health Care Inc. The applicant further relies on the CNR’S of Dr. Khan or Dr. Abedajo and the CNR’S of the Humber River Hospital.

16The applicant relies on several cases in his book of authorities that supports his removal from the MIG.

17The respondent relies on the insurer’s s.44 examination report of Dr. Dr. Raymond Zabieliauskas, Physiatrist, dated February 26, 2024, for a Psychiatric Assessment, as part of a multidisciplinary assessement.

18I find that the applicant has not established ongoing chronic pain impairment. The applicant has not provided evidence that he even mentioned the accident to either of his family doctors, Dr. Khan or Dr. Abedajo. He has provided no evidence that he ever underwent any kind of medical imaging aside from his hospital visit on the date of the accident, and there is no evidence he has taken any medication stronger than over-the-counter Tylenol and Advil.

19I find that the applicant has failed to prove he is suffering from chronic pain.. Also, I find that Dr. Karmy only referred to documents from health providers who prepared the treatment plans and not to any clinical notes and record from the applicant’s family doctors and the Humber River Hospital.

20I also find that there is no evidence to support Dr. Karmy’s conclusion that the applicant has physical deconditioning. His report makes no mention of the applicant’s strength or any strength testing. Dr. Karmy found no gross neurological deficits. I also find that the applicant attended an assessment with s. 44 physiatrist, Dr. Zabieliauskas, who noted the physical examination was devoid of objective organic pathology attributable to the accident. Further, after the accident, the applicant only took a single day off from his job as a supervising industrial mechanic at a food factory. I also find the Facebook posts and pictures show the applicant bending, squatting, and sleeping apparently without any apparent discomfort.

21I find that physical injuries that the applicant suffers can be treated within the MIG. In respect to the physical pain of the applicant, I find that there is no chronic pain diagnosis made by Dr. Karmy other than his reference to the AMA Guides on chronic pain. The Tribunal uses the criteria in the AMA Guides just as a guideline and is not bound by them. In the CNRs of family doctors Dr. Khan or Dr. Abedajo, there is no evidence of chronic pain. I also noticed that the applicant never underwent any kind of medical imaging aside from his hospital visit on the date of the accident. He wasn’t prescribed any other prescriptions than over-the-counter Tylenol and Advil. Dr. Karmy found no gross neurological deficits and as he stated in his report that the applicant is still working in a factory position which Dr. Karmy states that it is demanding physically on the applicant. Further, I find that there is no additional assessor that would support a finding of chronic pain diagnosis for the applicant. Dr. Zabieliauskas., the s. 44 assessor, noted the physical examination of the applicant was devoid of objective organic pathology attributable to the accident and stated that his injuries were minor. Also, the Facebook posts suggests that the applicant is in very little pain because he is bending, squatting and sleeping in the pictures. For the reasons above, and on a balance of probabilities, I find that the applicant can be treated on his physical pain injuries within the MIG.

Does the applicant have a psychological impairment that would remove him for the MIG?

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

23The applicant submits that he has sustained a psychological injury because of the accident. The applicant relies on psychological report dated May 11, 2020, by Helen Ilios, M.A., RP and supervised by Dr. Jacqueline Brunshaw, Ph.D., C. Psych. both of Downsview Health Care Inc.

24The respondent relies on the s. 44 assessment of Dr. Dr. Robert Brian Hines, B.Sc., MD, FRCPC Psychiatrist of AssessMed dated March 1, 2024.

25I find that the CNRs of the family doctors do not contain any psychological complaints. The applicant recently stated he is social and does not have any stress in his life at the present time. I also agree with the respondent where the applicant was examined by the s. 25 psychological report by Helen Ilios M.A. working under the supervision of Dr. Jacqueline Brunshaw. The report offers no explanation as to what supervision consists of, whether Dr. Brunshaw ever even met personally with the applicant, or what role, if any, Dr. Brunshaw played in the assessment. I also find that Dr. Karmy, is a general practitioner and can make a psychological diagnoses, however, he is not a psychiatrist. Also Dr. Karmy states himself that making a psychological diagnosis is beyond the scope of his medical expertise. I find I support Dr. Hines’ report because Dr. Hines noted that at no time did the applicant appear in acute physical or emotional distress. After a thorough interview and review of medical records, Dr. Hines opined that the applicant does not have a psychiatric diagnosis or impairment and that the applicant falls within the MIG.

26For the above reasons, and on a balance of probabilities, I find that the applicant’s physiological injuries can be treated within the MIG limits.

27As the applicant is limited to the monetary limits of the MIG, I do not need to consider whether the treatment plans are reasonable and necessary. The applicant is entitled to the remaining $116.50 in the MIG.

Interest

28Since there are no treatment plans awarded, there is no interest payable.

29No award is payable because no treatment plans are payable.

ORDER

30The applicant’s injuries are predominantly minor in nature and can be treated within the monetary limits of the MIG.

31As the applicant is in the MIG, I do not need to determine if the treatment plans are payable. The applicant is entitled to benefits up to the MIG limits.

32No interest is payable.

33The applicant is not entitled to an award.

34The application is dismissed.