Citation: Lee v. Pembridge Insurance, 2025 ONLAT 23-004245/AABS

Licence Appeal Tribunal File Number: 23-004245/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:

Phyllis Lee

Applicant

and

Pembridge Insurance

Respondent

DECISION

ADJUDICATOR:

Andrea Reid

APPEARANCES:

For the Applicant:

Bianca Pirrotta-Iaccino, Paralegal

For the Respondent:

Sara Azghidi, Counsel

HEARD: In Writing

OVERVIEW

1Phyllis Lee, the applicant, was involved in an automobile accident on January 17, 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, 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 therefor subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $1,995.33 for a Psychological Assessment, proposed by Alma Rehab Inc. in a treatment plan dated March 26, 2021?

iii. Is the applicant entitled to $3,058.75 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan dated May 25, 2021?

iv. Is the applicant entitled to $2,388.89 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan dated September 7, 2021?

v. Is the applicant entitled to assessment proposed by Ontario Independent Assessment Centre Inc., as follows:

(i) $2,350.00 for a Chronic Pain Assessment, in a treatment plan dated November 16, 2022; and

(ii) $1,950.00 for a Cognitive Assessment, in a treatment plan dated December 13, 2022?

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

RESULT

3The applicant’s chronic pain warrants removal from the MIG.

4The applicant it not entitled to $1,995.33 for psychological services, proposed by Alma Rehab Inc. in a treatment plan dated March 26, 2021.

5The applicant is entitled to $3,058.75 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan dated May 25, 2021.

6The applicant is entitled to $2,388.89 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan dated September 7, 2021.

7The applicant is entitled to $2,350.00 for a Chronic Pain Assessment proposed by Ontario Independent Assessment Centre Inc. dated November 16, 2022.

8The applicant is not entitled to $1,950.00 for a Cognitive Assessment proposed by Ontario Independent Assessment Centre Inc. dated December 13, 2022.

9The applicant is entitled to interest based on the two chiropractic treatments plans proposed by Alma Rehab dated May 25, 2021 and September 7, 2021, respectively. The applicant is also entitled to interest based on the Chronic Pain Assessment proposed by Ontario Independent Assessment Centre Inc. dated November 16, 2022.

10The application is granted in part.

ANALYSIS

Applicability of the Minor Injury Guideline

11Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 of the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one ore more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

12An 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 removed form the MIG. In all cases, the burden of proof lies with the applicant.

13The applicant submits removal from the MIG based on physical and psychological impairments as well as chronic pain. The applicant relies on medical records and recommendations made by Family Physician Dr. Ross, Psychologist Dr. Papazoglou and Orthopaedic Surgeon Dr. Getahun. The applicant submits she has met her burden of proof in demonstrating that her injuries fall outside of the MIG. The applicant requests that all disputed treatment and assessment plans be approved. The applicant further submits entitlement to costs and interest for all treatment plans incurred to date.

14The respond argues that the submissions put forth by the applicant to be removed from the MIG on the basis of physical, psychological and chronic pain are unfounded. The respondent relies on the medical reports and recommendations made by Orthopaedic Surgeon Dr. Saplys and Psychologist Dr. Mandel. The respondent submits the applicant’s accident-related injuries are predominantly minor and that she is not entitled to any disputed treatment plans, expenses or interest.

The applicant does not have a physical impairment that warrants removal from the MIG

15I find that the applicant has not met her burden of proof to demonstrated on a balance of probabilities that her physical injuries fall outside of the MIG.

16Both parties point to the Disability Certificate submitted by Alma Rehab on January 21, 2021. This qualified the applicant’s physician accident-related injuries and sequelae as Whiplash Disorder (WAD 2) with a complaint of neck pain, muscle strain, sprain and strain of the cervical/thoracic/lumbar spines and shoulder girdle, low back pain and tension-type headache. I find that these impairments all fall within the MIG definition.

17On January 27, 2021, the applicant had a phone consult with Dr. Bajawa at Pulse Urgent Care to report the accident and back pain. The applicant was sent for lumber and thoracic x-rays, both being normal. On the following day, the applicant had a phone consult with Dr. Syed of Pulse Urgent Care. No assessment or recommendations were given. The applicant did not see her family physician or visit Pulse Urgent care, virtually or in person since the January visit.

18On May 26, 2021, Orthopaedic Surgeon Dr. Saplys conducted an Orthopaedic IE report concluding there were not objective findings of organic orthopaedic pathology to correlate the applicant’s complaints. Dr. Salpys concluded that the applicant’s physical accident-related injuries included uncomplicated soft tissue injuries that fell within the MIG. He noted that no other assessments, examinations or medication were required. Dr. Salpys further recommended all facility-based treatment should be discontinued and the applicant could engage in a self-directed exercise program only.

19Based on the medical evidence, I find on a balance of probabilities that the applicant has not established she suffered an accident-related physical impairment which warrants her removal from the MIG.

The applicant does not have a psychological impairment that warrants removal from the MIG

20I find that the applicant does not have a psychological condition that warrants removal from the MIG.

21The applicant submits that she is suffering from psychological impairments stemming from the accident which include disturbed sleep, exhaustion, fatigue, nervousness, anxiety when driving, fear of another accident, avoidance, irritability, decreased concentration, social isolation and loss of enthusiasm. The applicant relies on a report by social worker Ms. Gumbs and psychological screening conducted on March 26, 2021 by Psychologist, Dr. Papazoglou. Dr. Papazoglous identified that the applicant sustained a provisional diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood.

22The applicant submits removals from the MIG based on Dr. Papazoglou’s findings. The applicant further suggests removal from the MIG is warranted given that the MIG does not include in its definition “psychological symptoms at all”.

23On May 26, 2021, Dr. Mandel completed a Psychological IE report concluding that there was a lack of consistent objective information to support a DSM-5 diagnosis based on a clinical interview, testing and document review. Further, Dr. Mandel opined that no psychological intervention was warranted.

24The respondent argues that little weight should be given to Dr. Papazoglou’s pre-screen report since it is based entirely on the applicant’s self-reported complaints without review of any medical documents, psychological questionnaires and validity testing. The respondent further argues that Dr. Mandel’s report confirms a review of Pulse Urgent Care’s clinical notes and records which do not documents the psychological symptoms noted in Dr. Papazoglou’s screening.

25The respondent also notes that psychological symptoms which are minor in nature fall within the MIG definition of “clinically associated sequelae.” The respond submits that the MIG framework provides a $400 fund to address psycho-social symptoms and only when that amount is deemed insufficient should an applicant be removed from the MIG.

26I place significant weight on Dr. Mandel’s report. As a psychologist, Dr. Mandel is qualified to render his opinion and he examined the applicant and medical clinical notes and records prior to rendering his opinion. I assign less weight on the report of Dr. Papazoglou. While also a psychologist, his findings were only based on self-reporting from the applicant and lacked supporting testing and document review.

27Further, Dr. Mandel answered in the affirmative when asked if the $400 fund would be sufficient to address the applicant’s psychological symptoms.

28Based on these reasons and on a consideration of the evidence, I find on a balance of probabilities that the applicant has not established she suffered from an accident-related psychological impairments that warrants removal from the MIG.

The applicant has chronic pain that warrants removal from the MIG

29I find that the applicant has met her onus on proving on a balance of probabilities that she suffers from chronic pain with a functional impairment that warrants removal form the MIG.

30The applicant submits that she suffered from Chronic Pain Syndrome due to ongoing neck and back pain and headaches. The applicant relies on the diagnosis of “chronic myofascial strain of the cervical and lumbosacral spine and chronic pain syndrome” made by section 25 assessor Dr. Getahun completed on November 11, 2023.

31The respondent argues that little weight should be given to Dr. Getahun’s report since his diagnosis was largely based on the applicant’s subjective reports and does not corroborate with diagnoses made by Dr. Ross or other treating specialists regularly involved in her care.

32As part of his assessment, Dr. Getahun reviewed clinical notes and records of Dr. Ross, Ms. Gumbs, Pulse Urgent Care and decoded OHIP summaries. Further, Dr. Getahun also evaluated the applicant against criteria for chronic pain in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6^th Edition (“AMA Guides”) in his findings.

33While not incorporated in the Schedule, the AMA Guides are frequently referenced by the Tribunal as a useful tool in assessing chronic pain. Dr. Getahun noted that the applicant had to stop working in October of 2023 due to ongoing back pain subsequent to the subject accident. He further noted the applicant had certainly socializing with friends and family and continues to rely on assistance from her husband for household chores including cooking, cleaning, laundry, shopping and garbage removal.

34In his assessment, Dr. Getahun concluded that the applicant met three of these criteria inclusive of excessive dependence of healthcare providers, spouse or family; secondary physical deconditioning due to disuse and/or fear/avoidance of physician activity due to pain; and withdrawal from self, family including work, recreation or other social contacts.

35Dr. Getahun is an Orthopaedic Surgeon, qualified to conduct chronic pain assessments and provide chronic pain opinions. For this reason, I put considerable weight on his findings. Dr. Getahun diagnosed the applicant with chronic pain with a functional impairment and made submissions in support of meeting the required criteria of the AMA Guides. Therefore, I find the applicant has met her onus on a balance of probabilities.

36I find on a balance of probabilities that the applicant has a chronic pain condition that warrants removal from the MIG.

37To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that overall costs of achieving them as reasonable.

The applicant is not entitled to a Psychological Assessment

38I find that the applicant has not met her burden to demonstrate on a balance of probabilities that the Psychological Assessment is reasonable and necessary.

39My previous analysis in assessing the applicant’s removal from the MIG based on a psychological impairment applies here as well.

40For the reasons set out above, I place considerable weight on Dr. Mandel’s report that no psychological intervention for the applicant was warranted.

41For this reason, I find that the applicant has not demonstrated on a balance of probabilities that a Psychological Assessment is reasonable and necessary.

The applicant is entitled to chiropractic treatment plans

42I find that the applicant has met her burden to demonstrate on a balance of probabilities that the chiropractic treatment plans are reasonable and necessary.

43The applicant submits that she is entitled to the recommended physical treatment from Chiropractor Dr. Braich which includes plans for decreasing pain and pain management. Relying on the reasoning in L.W. and The Co-operators General Insurance Company, 2016 CanLII 93133 (ON LAT), the applicant further submits that care which relieves physical pain and improves function is a legitimate medical and rehabilitative goal. The applicant relies on records from Alma Rehab and assessment from Dr. Getahun.

44The respondent argues that the applicant has not shown that she has an ongoing need for further physical rehabilitation and the disputed treatment plans are not reasonable or necessary.

45As previously discussed in assessing the applicant’s removal form MIG based on chronic pain, I outlined my reasons for assigning significant weight to Dr. Getahun’s assessment in relation to the MIG. For the same reasons, I also place significant weight on his report in the context of the chiropractic treatment plans.

46As part of Dr. Getahun’s report, he recommended a multidisciplinary chronic pain program. Chiropractic therapy has been established as one possible modality commonly used for chronic pain management. Further, the records from Alma Rehab indicate that treatment the applicant received was helpful in her recovery and managing her pain.

47For these reasons, I find that the applicant has met her burden in establishing on a balance of probabilities that the chiropractic treatments plans are reasonable and necessary.

The applicant is entitled to a Chronic Pain Assessment

48I find that the applicant has met her burden to demonstrate on a balance of probabilities that a Chronic Pain Assessment is reasonable and necessary.

49The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

50My above analysis and reasons relating to the applicant being diagnosed with chronic pain are applicable to this section as well.

51I will not be iterating those reasons here other than to affirm that the applicant has met her burden to demonstrate on a balance of probabilities that a Chronic Pain Assessment is reasonable and necessary.

The applicant is not entitled to a Cognitive Assessment

52I find that the applicant has not met her burden to demonstrate on a balance of probabilities that a Cognitive Assessment is reasonable and necessary.

53The applicant submits that she is entitled to a cognitive assessment based on the findings from Dr. Papazoglou’s report.

54The respondent submits that the applicant is not entitled to this assessment based on the findings by Dr. Mandel.

55As previously outlined, I assigned more weight to Dr. Mandel’s report and determined that the applicant had not established she suffered from an accident-related psychological impairments.

56For these reasons, I find that the applicant has also not met her burden to demonstrate on a balance of probabilities that a Cognitive Assessment is reasonable and necessary.

Interest

57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to the chiropractic treatments plans proposed by Alma Rehab dated March 25, 2021 and September 7, 2021. Interest also applies to the Chronic Pain Assessment dated November 16, 2022.

ORDER

58For the reasons outlined above, I find:

i. The applicant’s chronic pain warrants removal from the MIG.

ii. The applicant it not entitled to $1,995.33 for psychological services, proposed by Alma Rehab Inc. in a treatment plan dated March 26, 2021.

iii. The applicant is entitled to $3,058.75 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan dated May 25, 2021.

iv. The applicant is entitled to $2,388.89 for chiropractic services, proposed by Alma Rehab Inc. in a treatment plan dated September 7, 2021.

v. The applicant is entitled to $2,350.00 for a Chronic Pain Assessment proposed by Ontario Independent Assessment Centre Inc. dated November 16, 2022.

vi. The applicant is not entitled to $1,950.00 for a Cognitive Assessment proposed by Ontario Independent Assessment Centre Inc. dated December 13, 2022.

vii. The applicant is entitled to interest based on the two chiropractic treatments plans proposed by Alma Rehab dated May 25, 2021 and September 7, 2021, respectively. The applicant is also entitled to interest based on the Chronic Pain Assessment proposed by Ontario Independent Assessment Centre Inc. dated November 16, 2022.

viii. The application is granted in part.