Licence Appeal Tribunal File Number: 22-013165/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:
Joana Agatha Anderson
Applicant
and
Pembridge Insurance
Respondent
DECISION
ADJUDICATOR:
Leo Demarce
APPEARANCES:
For the Applicant:
Waqas Amjad, Paralegal
For the Respondent:
Parthenia Magharious, Counsel
HEARD:
In Writing
OVERVIEW
1Joana Anderson, the applicant, was involved in an automobile accident on October 20, 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, Pembridge Insurance, 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 (“MIG”)?
ii. Is the applicant entitled to $2,984.52 for physiotherapy services, proposed by 2431512 Ontario Inc. in a treatment plan/OCF-18 (“plan”) dated February 17, 2021?
iii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by Complete Rehab Centre in a treatment plan dated August 18, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s accident-related impairments do not warrant removal from the MIG.
4The applicant is not entitled to the treatment plans in dispute, award or interest.
5The application is dismissed.
ANALYSIS
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 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.”
7An insured person 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.
8The applicant submits that she should be removed from the MIG on the grounds of chronic pain and psychological impairment.
The applicant has not established chronic pain warranting removal from the MIG
9The applicant submits that Dr. Nizran, the applicant’s family doctor, diagnosed the applicant with chronic pain on October 23, 2023. This is cited as a result of the applicant’s ongoing complaints since the accident.
10The respondent’s position is that despite the diagnosis of Dr. Nizran, the applicant cannot tie her chronic pain diagnosis directly to the accident in question.
11The respondent argues that the clinical notes and records of Dr. Nizran do not indicate that the injuries suffered by the applicant were serious enough to warrant any referrals to any pain or other specialists. This is further supported by the fact that on two separate occasions, February 1, 2020 and August 26, 2020, a referral for an x-ray examination was requested by the applicant herself, rather than being suggested by Dr. Nizran.
12The respondent further submits that little weight should be given to the Disability Certificate (OCF-3) dated January 11, 2023 completed by Dr. Nizran because Dr. Nizran notes ongoing cervical, lumbar, left shoulder and left leg pain as well as PTSD and headaches as a direct result of the MVA. The respondent asserts that there is a serious issue with causation of her ongoing complaints, given that she was involved in several other incidents post-accident. This is demonstrated due to several incidents that occurred following the MVA as follows:
i. Visit with Dr. Nizran on December 4, 2019, the applicant reported that she feels much better now and requests to return to work on regular duties.
ii. December 14, 2019 the applicant was involved in an accident as a passenger on a bus.
iii. On August 24, 2020 the applicant had a slip and fall. The applicant went back to work on September 8, 2020.
iv. On December 2, 2020 the applicant was crushed by the doors to a subway car on the TTC.
v. On February 21, 2021 the applicant hit her head.
13The respondent also submits that in Dr. Nizran’s own clinical notes and records that the applicant began to feel better after the subject MVA and also expressed a desire to return to work on a fulltime basis and was willing to work night shifts.
14The onus is on the applicant to establish chronic pain warranting removal from the MIG. The applicant stated in their submissions that Dr. Nizran diagnosed the applicant as having chronic pain as a direct result of the accident as per the doctor’s records dated October 23, 2023. I noted the following after reviewing this report:
i. that the visit was a 3 minute phone call
ii. the applicant made the claim that she has had low back pain and neck pain where Dr. Nizran noted “says since her MVA”.
iii. The applicant had been using topical creams and Dr. Nizran notes that the applicant requested to be given oral medications.
iv. Dr Nizran made a note of “A.P Chronic Pain.”
v. Dr. Nizran prescribes physiotherapy and oral medications. The oral medications prescribed were for 10 tablets of Baclofen 10MG and 14 tablets of Arthrotec 50, with no refills for either prescription.
15I find that if Dr. Nizran diagnosed the applicant with chronic pain then the treatment plan would have had long term implications, not a one-time dose of pain medications and some physiotherapy. I also find that Dr. Nizran did not connect the diagnosis of chronic pain to the accident only that the applicant made this connection during the phone visit.
16The respondent conducted a s. 44 assessment dated March 24, 2022 which combined a psychological assessment performed by Dr. Mehdi Lotfalizadeh on March 4, 2022 and a physical medicine and rehabilitation assessment performed by Dr. Michael Ko on January 14, 2022. Dr. Ko’s report included a physical examination of the applicant as well as a review of the applicant’s medical history. In his summary he noted his examination revealed no evidence of a structural musculoskeletal injury or nerve impingement.
17The test for causation is the “but for” test where in this case the applicant must prove on a balance of probabilities that but for this accident the applicant would not be suffering from chronic pain.
18I find the respondent’s arguments on causation persuasive because:
i. On December 4, 2019 the applicant returned to work and reported that she “feels much better now.”
ii. After December 4, 2019 the applicant was involved in four incidents that could have caused the applicant to have pain.
iii. Dr. Ko’s report supports the question of causation as it points to Dr. Nizran’s notes that indicated that the applicant’s pain was well controlled with medications by early December 2019, prior to the bus accident which occurred on December 14, 2019.
19I find that I am persuaded by the respondent’s arguments that the applicant is not able to point to the accident in question as the definitive cause of their chronic pain diagnosis, and are unable to persuade me that but for the accident she would not be suffering from chronic pain.
20I find that the applicant has not pointed to sufficient evidence to prove chronic pain of the duration, severity, and functionally disabling extent necessary to warrant removal from the MIG.
The applicant has not established a psychological impairment warranting removal from the MIG
21I find that the applicant has not established an accident-related psychological impairment.
22The applicant provided the following evidence:
i. The applicant attended a pre-screen with Dr. Jacqueline Brunshaw who proposed a thorough psychological assessment.
ii. A s. 25 psychological assessment dated August 18, 2021 was performed by Dr. Betty Kershner and Dr. Sandeep Kaur. This report presented a diagnosis of Major Depressive Disorder; Moderate; Single Episode as a result of the accident and prescribed 12 counselling sessions.
23The respondent provided the following evidence:
i. A s. 44 psychological assessment was performed by Dr. Mehdi dated March 24, 2022. Dr. Mehdi found the presence of psychological and emotional problems. However, the results could not be considered due to validity testing of the SIMS, rendering the assessment invalid.
ii. The respondent submits that no weight should be given to the psychological report of Dr. Kershner because the report from Dr. Mehdi demonstrated a lack of validity.
iii. The respondent also points to the clinical notes of Dr. Nizran dated September 30, 2021 which is about six weeks after her assessment with Dr. Kershner. In these notes the applicant states that she was “mentally fine”.
24In reviewing the clinical notes and records of Dr. Nizran I note that there were ongoing complaints of stress. However, I find that the applicant is not able to persuade me that but for the accident in question, the applicant would not have demonstrated ongoing stress that could cause a psychological impairment.
25The test for causation is the “but for” test where in this case the applicant must prove on a balance of probabilities that but for this accident the applicant would not be suffering from a psychological impairment.
26I find the applicant is not able to persuade me that but for the accident in question that she would not have suffered a psychological impairment because:
i. On December 4, 2019 the applicant returned to work and reported that she “feels much better now.”
ii. After December 4, 2019 the applicant was involved in four incidents that could have caused the applicant to have suffered a psychological impairment.
27I find that the applicant has not established an accident-related psychological impairment warranting removal from the MIG because she has not pointed to sufficient evidence regarding her psychological complaints following the accident. I give little weight to the report from dated March 24, 2022 from Dr. Mehdi due to because the results could not be considered due to the validity testing of the SIMS, rendering the assessment invalid. I am also persuaded that the applicant is unable to point to the accident in question and, but for that incident, she would not be suffering from a psychological impairment.
28As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits there is no interest payable.
Award
30The applicant sought an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no benefits are overdue or have been withheld, there is no award payable.
ORDER
31I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG limits. The applicant is not entitled to the treatment plans in dispute, interest or an award and the application is dismissed.
Released: April 25, 2025
Leo Demarce
Adjudicator