Licence Appeal Tribunal File Number: 23-001138/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:
Szymon Wisniewski
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nikisha Evans
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
David Koots, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, Szymon Wisniewski, was involved in an automobile accident on November 4, 2021, 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:
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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $3,622.73 for chiropractic services, proposed by Mackenzie Medical in a treatment plan/OCF-18 (“plan”) dated May 5, 2022?
iii. Is the applicant entitled to $284.71 ($1,300.00 less $1,015.29 approved) for chiropractic services, proposed by Mackenzie Medical in a plan dated May 18, 2022?
iv. Is the applicant entitled to $2,023.03 for chiropractic services, proposed by Mackenzie Medical in a plan dated July 20, 2022?
v. Is the applicant entitled to $2,023.03 for chiropractic services, proposed by Mackenzie Medical in a plan dated September 14, 2022?
vi. Is the applicant entitled to $1,525.84 for chiropractic services, proposed by Mackenzie Medical in a plan dated October 26, 2022?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find, based on the totality of the evidence before me, the applicant has not met his onus in proving that his accident-related impairments warrant removal from the MIG. As the applicant is held to the MIG, there is no need to determine whether the treatment and assessment plans in dispute are reasonable and necessary. No interest is payable.
The applicant has not demonstrated that his impairments are outside of the s.3 of the Schedule, and, therefore, removal from the MIG is not justified.
4The applicant has not demonstrated that he suffers from the chronic pain or a psychological impairment that warrants removal from the MIG.
5Pursuant to section 18(1) of the Schedule, 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.”
6Further, section 18(2) allows for an insured to be removed from the MIG if his or her health practitioner determines with compelling medical evidence that a pre-existing medical condition will prevent the insured from achieving maximum recovery if he or she remains in the MIG. The Tribunal has also determined that a psychological condition or chronic pain with functional impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
7The applicant submits that he should be removed from the MIG because he suffers from chronic pain and psychological impairments as a result of the accident.
The applicant has not suffered a psychological impairment as a result of the accident.
8I find there is insufficient medical evidence to support a claim that the applicant suffers from psychological injuries as a result of the accident, which would warrant removal from the MIG.
9Psychological impairments are not included in the “minor injury” definition, and so a finding that the applicant sustained a psychological impairment as a result of the accident would permit them to seek treatment outside of the MIG. An impairment is defined in section 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”
10The applicant relied on the OCF-3 by Dr. Aaron Pereira, chiropractor, dated May 5, 2022, which made a referral to a psychologist to address a psychological healing barrier. Subsequent to the OCF-3, the applicant attended Dr. Cindy Jakeer, a chiropractor for chiropractic treatments. The applicant also relied upon an OCF-18, dated October 26, 2022, by Dr. Jakeer, who recorded that the applicant reported improvements but claimed the applicant’s progress has been limited due to the severity of the symptoms and psychological yellow flags.
11The applicant further cited cases, where psychological assessments were submitted for the determination of the claim. However, each case is determined on its facts, and I am not bond by prior Tribunal decisions. Further, the applicant failed to submit psychological assessments in support of his claim for me to consider.
12As noted by the respondent, in Davoodabadi v Certas, 2021 CanLII 111157 (ON LAT) at para. 19, the Tribunal has previously ruled that a chiropractor does not have the expertise to diagnose symptoms involving psychological impairment. As in Davoodabadi v Certas, 2021, I give the notes made on the OCF-3 and the OCF-18 by Dr. Pereira and Dr. Jakeer, little weight in determining whether the applicant sustained a psychological impairment as a result of the accident.
13In review of the bulk of the medical reports, I find the applicant has not provided medical evidence that he has sustained psychological impairment as a result of the accident.
14For these reasons, I find that the applicant has not demonstrated that he sustained an accident-related psychological impairment that warrants removal from the MIG.
The applicant does not have chronic pain as a result of the accident.
15I find the applicant does not suffer from chronic pain syndrome, as he has not established a functional impairment as a result of accident-related pain.
16In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome, or there must be evidence of chronic pain that affects one’s day-to-day function.
17The applicant relied upon the OCF-24, prepared by Dr. Cindy Jakeer, dated May 18, 2022, regarding the applicant’s functional status. Dr. Jakeer reported the applicant had difficulties performing housekeeping activities and needs assistance.
18The applicant further relied upon the notes of Dr. Jakeer reported on OCF-18 submitted September 14, 2022, that the applicant did experience pain and discomfort with prolonged standing, house cleaning activities and is unable to carry heavy objects. The OCF-18 also noted the applicant stated there were improvements, but there were still pain in the neck and left shoulder.
19The respondent submits that the applicant has not met his burden of proof that he suffers from chronic pain as a result of the accident. The respondent relies on the insurer’s examination report prepared by Dr. Michael Hanna, General Practitioner, dated October 6, 2022. The report stated that the applicant, by his own submission, reported returning to work shortly after the accident, and performing the same duties pre-accident. He also continued with his daily routine, inclusive of personal care, housekeeping duties and pre-accident leisure activities. Dr. Hanna reported in his assessor’s report that the applicant stated “nothing has changed” regarding his pre-accident employment duties.
20The applicant failed to provide evidence that support a removal from the MIG due to chronic pain. As such, I have place little weight on Dr. Jakeer’s reports. However, I have placed significant weight on Dr. Hanna’s report as he noted the applicant’s own submission that he returned to work shortly after the accident and performed the same duties pre-accident. He further reported that the applicant stated “nothing has changed” regarding his pre-accident employment duties.
21For the above reasons, I find the applicant has not proven on a balance of probabilities that he suffers from chronic pain or a psychological impairment that would take him out of the MIG. Accordingly, he remains within the MIG and is subject to its $3,500.00 limit on treatment.
22I have determined that the applicant has not proven that his accident-related impairments merit removal from the funding limit of the MIG. As such, there is no need to conduct the reasonable and necessary analysis of the treatment plans.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, no interest is payable under s. 51.
ORDER
24The application is dismissed, and I find that:
i. The applicant sustained a predominantly minor injury as a result of the accident. He remains subject to the MIG and its $3,500.00 limit.
ii. As the applicant remains within the MIG and its $3,500.00 limit, which has been exhausted, there is no need to conduct the reasonable and necessary analysis for the treatment plans. No interest is owing.
Released: April 7, 2025
__________________________
Nikisha Evans
Adjudicator