Gotlik v. Allstate Canada, 2025 CanLII 39266

Gotlik v. Allstate Canada, 2025 CanLII 39266

Citation: Gotlik v. Allstate Canada, 2025 ONLAT 23-007820/AABS - A

Licence Appeal Tribunal File Number: 23-007820/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:

Sylwia Gotlik

Applicant

and

Allstate Canada

Respondent

AMENDED DECISION

ADJUDICATOR: Robert Rock

APPEARANCES:

For the Applicant: Dean Trinetti, Counsel

For the Respondent: Derek Yap Taskeen Abdul-Rawoof, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sylwia Gotlik, the applicant, was involved in an automobile accident on September 19, 2022, 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, Allstate Canada, 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 $2,460.00 for a psychological assessment proposed by HydroHealth Evaluations Inc. in an OCF-18/treatment plan (“plan”) submitted December 13, 2022?

iii. Is the applicant entitled to $2,400.00 for chiropractic services proposed by Back to Play Chiropractic and Sports in a plan submitted May 25, 2023?

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

RESULT

3The applicant is subject to the MIG.

4As the applicant remains in MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

5As there are no overdue benefit payments, there is no interest owing.

ANALYSIS

The Minor Injury Guideline

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”

7An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.

8The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.

a) The applicant does not suffer from a pre-existing condition.

9The applicant has not proven on a balance of probabilities that she suffered from a pre-existing condition that would preclude her recovery in MIG.

10The applicant argues that she was diagnosed with pre-existing migraines that have been exacerbated by the subject accident. The applicant relies on an assessment by Dr. Douen, neurologist, on May 10, 2022; the clinical notes and records (CNRs) of Rivlin Clinic; the CNRs of Credit View Hospital and Oakville Trafalgar Hospital; a neurology examination by Dr. Temple, neurologist, completed on November 28, 2022; and the CNRs of her family doctors Dr. Amjad and Dr. Halka.

11I find that the assessment by Dr. Douen diagnoses the applicant with migraines, potentially with complicated hemiphegic migraine. The applicant was provided bye educations and medication to treat the migraines. This diagnosis by Dr. Douen was made through a telephone assessment and not a in-person examination. The assessment notes that the applicant has had a CT brain scan in June 2021, CT angiogram head and neck scan in November 2021, and an MRI brain scan in November 2021. All scans were unremarkable. Dr. Douen’s clinical impression notes the migraines could be triggered by weather changes, hormonal changes, as well as stress related to the applicant’s separation from her partner and being a single parent. It also notes work stress as the applicant is currently on an unpaid leave.

12The CNRs of the Rivlin Clinic note indicate weather changes, menstrual cycle, stress, anxiety, and certain foods as a trigger for her migraines. Additionally, the CNRs note that the applicant suffers from limitations in completing her activities of daily living. The Clinic recommended psychological and or psychiatric treatment with ongoing counseling and cognitive behavioural therapeutic plan and stress relief strategies. The CNRs note that the applicant received an injection that provided some relief.

13The CNRs of Credit View Hospital note no neurological deficits, and the only pain noted was the back of the neck and burning to the left arm. No deformity was noted with good range of motion. No distress was noted.

14The CNRs of Oakville Trafalgar Hospital note a likely concussion post subject accident, but note the extensive work-up conducted by Credit View Hospital including FAST exam, CT head and neck scan, x-rays of L-spine and chest. All testing was normal. No concussion testing was performed at Oakville Trafalgar. In the concluding notes for the visit, the emergency doctor D. Patel, does not make any reference to a possible concussion.

15I find that the neurological exam by Dr. Temple does not support that the applicant’s pre-existing migraines have been exacerbated by the subject accident, or that the applicant pre-existing migraines will preclude her recovery in MIG. Dr. Temple does not make any mention of the subject accident in his examination. Dr. Temple does note that the applicant has a history of anxiety, and that she is actively working as a part-time mortgage agent. The doctor notes that the applicant’s mental status is intact to conversation, and all of her testing is unremarkable.

16I find that the CNRs of Dr. Halka also do not support that the applicant’s pre-existing migraines have been exacerbated by the subject accident, or that the applicant pre-existing migraines will preclude her recovery in MIG. Dr. Halka’s CNRs show ongoing reporting of migraines post accident, but there is no indication in the CNRs that the subject accident changed the frequency or intensity of the migraines, on the contrary, a note in the CNRs on November 30, 2022, Dr. Halka notes that the applicant’s “headache and neurological symptoms are better now”. There is no indication in Dr. Halka’s CNRs that the pre-existing migraines were precluding the applicant’s recovery within the MIG post accident.

17I find that the CNRs of Dr. Amjad do not show that the applicant’s pre-existing migraines have been exacerbated by the subject accident, or that the applicant pre-existing migraines will preclude her recovery in MIG. Dr. Amjad’s CNRs show no reporting of migraines post accident. There is no indication in the CNRs that the subject accident changed the frequency or intensity of the migraines, nor is there any indication that the pre-existing migraines were precluding the applicant’s recovery post accident.

18Therefore, I find that the applicant has not proven on a balance of probabilities that she suffers from a pre-existing condition that would preclude her recovery in MIG. The evidence submitted by the applicant does outline that the applicant suffers from a documented history of migraines but has not provided compelling medical evidence stating that the migraines have been exacerbated by the subject accident or that the migraines would precludes her recovery in MIG.

b) The applicant does not suffer from chronic pain with a functional impairment.

19The applicant has not proven on a balance of probabilities that she suffered from chronic pain with a functional impairment that warrants removal from the MIG.

20The applicant argues that she suffers from chronic pain and relies on the CNRs of Dr. Halka, and Dr. Amjad to support this claim. Additionally, the applicant submits that based on the American Medical Association (AMA) Guides 6th edition, that she meets four of the six criteria to establish that she suffers from chronic pain.

21I find that the CNRs of Dr. Halka do not support the claim of chronic pain with a functional impairment. The CNRs do note reporting of pain and stiffness, but do not tie this reporting to the subject accident. I am not led to evidence in the CNRs that Dr. Halka diagnoses this reporting of pain and stiffness as chronic pain. The CNRs show Dr. Halka recommending, relaxation, CBT, sleep hygiene, avoiding trigger factors, and attending the gym as reasonable measures to deal with the ongoing pain and stiffness. Additionally, the CNRs do not speak to or outline any functional impairment that the applicant was suffering in association with the reporting of pain and stiffness.

22I also find that the CNRs of Dr. Amjad do not support the claim of chronic pain with a functional impairment. The CNRs do not include any reporting of ongoing pain reporting by the applicant, nor any reporting of functional impairment.

23The Tribunal has found the AMA Guides to be a useful analytical tool with respect to chronic pain. The six criteria in the AMA Guides are:

a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

b. Excessive dependence on health care providers, spouse, or family;

c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

d. Withdrawal from social milieu, including work, recreation, or other social contracts;

e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and,

f. Development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.

24The applicant argues that they suffer from four of the six criteria to determine chronic pain. The applicant contends that they suffer from b, d, e, and f.

25I find that upon review of the evidence, I have not been directed to objective medical evidence that would support the claim of the applicant meeting these criteria. I have not been presented with excessive dependence on health care providers, spouse, and family to substantiate the applicant’s claim of b. In the evidence provided, the applicant is working, is in an active relationship, and still participates with friends, so I am not presented evidence to match either d or e. Based on this, the applicant does not meet at least three of the six criteria of the AMA Guides.

26The applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment.

c) The applicant does not suffer from psychological condition.

27The applicant has not proven on a balance of probabilities that she suffered from a psychological condition that warrants removal from the MIG.

28The applicant argues that she suffers from chronic pain and relies on the CNRs of Dr. Halka, and Dr. Amjad to support this claim.

29I find that the CNRs of Dr. Halka do not support the claim of a psychological condition as a result of the subject accident. The CNRs note anxiety, but there is no indication of significance in the CNRs that the anxiety was caused by or related to the subject accident.

30I find the CNRs of Dr. Amjad, note the applicant reporting that the subject accident has triggered anxiety and panic attacks. The applicant reporting this on October 12, 2022. Dr. Amjad advised the applicant to try box breathing to regulate the panic attacks, and a referral to counselling. I do note that on the same day, the applicant reported to Dr. Amjad that had went through a difficult unrelated medical procedure.

31The respondent argues that the applicant is not suffering from a psychological condition as a result of the subject accident. The respondent relies on a psychologist’s report completed on April 25, 2023 by Dr. Dumitrascu, C. Psych.

32I find that the psychologist’s report by Dr. Dumitrascu does not support the claim of a psychological condition as a result of the subject accident. The report determines that the applicant does not meet the DSM-5 criteria for a psychological condition. Dr. Dumitrascu reached this clinical conclusion through the in-person interview and psychological testing. I place weight on the report, and it feature a range of psychometric testing, and displayed evidence of potential for over reporting by the applicant. The applicant tested in the mild range for depression. The applicant’s trauma symptom inventory score with were deemed invalid due to her scores on the atypical response validity scale were significantly elevated indicating a tendency to over-endorse her emotional symptoms. Similarly, the applicant did not provide answers to a significant number of questions in the structured inventory of malingered symptomatology test therefore making the test invalid.

33The applicant has not proven on a balance of probabilities that she suffers from a psychological condition. There is no medical evidence in the CNRs of Dr. Amjad or Dr. Halka that would lead me to conclude that the applicant suffers from a psychological condition as a result of the subject accident.

34As the applicant has been found to remain in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, there is no interest owing.

ORDER

36I find that:

i. The applicant remains in MIG.

ii. As the applicant is in the MIG, it is not necessary to consider whether the treatment plans in dispute are reasonable and necessary.

iii. As there are no overdue benefit payments, no interest is owing.

iv. The application is dismissed.