Licence Appeal Tribunal File Number: 24-004511/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:
Stephen Welsh
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Timothy Porter
APPEARANCES:
For the Applicant:
Ivy So, Paralegal
For the Respondent:
Amanda Lennox, Counsel
Court Reporter:
Shadae Lugg
HEARD by Videoconference:
March 11-12, 2025
OVERVIEW
1Stephen Welsh, the applicant, was involved in an automobile accident on November 26, 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, Wawanesa Mutual 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?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from April 17, 2022, to ongoing?
iii. Is the applicant entitled to $2,366.20 for Chiropractic treatment, proposed by 2121587 Ontario Inc. in a treatment plan/OCF-18 (“plan”) dated May 2, 2022?
iv. Is the applicant entitled to $3,566.29 for psychological treatment, proposed by Excel Medical Diagnostics Inc. in a plan dated June 5, 2022?
v. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Excel Medical Diagnostics in a plan dated April 25, 2022?
vi. Is the applicant entitled to $19.46 for prescriptions, submitted on a claim form (OCF-6) dated October 11, 2022?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find that the applicant:
i. has not met his onus to establish entitlement to the pre-104 or post-104 week IRB.
ii. remains within the MIG and is subject to its treatment and rehabilitation limits.
iii. is not entitled to the treatment plans or the OCF-6 in dispute.
iv. has not established entitlement to any of the benefits in dispute, therefore no interest is owing.
ANALYSIS
The applicant has not met his onus to prove entitlement to the pre-104 week IRB
4For the reasons that follow, I find the applicant has not met his onus to prove, on a balance of probabilities, that he is entitled to the IRB within the first 104 weeks following the subject accident.
5To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
6The applicant submits that psychological issues related to the accident have rendered him substantially unable to undertake the essential tasks of his pre-accident employment as a tow truck driver. He relies on his testimony; the clinical notes and records (“CNRs”) of family physician, Dr. Keeth Krishnan; the report of Ms. Fahimeh Aghamohseni, psychologist; and the treatment records of Progressive Rehabilitation.
7The respondent submits that the applicant has not demonstrated any impairment, has not supplied them with sufficient information of a medical or employment nature to support entitlement to the IRB, and he has continued to work. It relies on the CNRs of Dr. Krishnan and the report by Ms. Miller.
8Dr. Krishnan does not diagnose a psychological impairment. The applicant first saw his family physician on August 29, 2022, 9 months following the subject accident. He informed the doctor of the accident and reported poor sleep and nightmares/flashbacks resulting from the accident. It appears that the symptoms voiced by the applicant August 29, 2022 were effectively treated with a prescription for Seroquel as the applicant reported on September 29, 2022 that his mood and sleep are improving. The applicant then saw Dr. Krishnan on September 7, 2023. This note does not contain any reference to the subject accident or previously reported symptoms. I find no references to a specific diagnosis and no referrals for psychological inquiry or support while over the same period the applicant is voicing complaints and receiving referrals for unrelated matters. Waiting 9 months to report impairments to the family physician causes me to question the veracity of the applicant’s complaints.
9I provide little weight to the report of Ms. Aghamohseni, psychologist of July 29, 2022, because none of her tests included validity measures, and there was no document review conducted. The combination of not reviewing documents and not utilizing validity measures leaves the applicant’s self-reports as the only underlying substance of the report, which does not allow for a balanced assessment in my view. I also note that Ms. Aghamohseni was not called as a witness.
10In contrast to Ms. Aghamohseni, Ms. Miller opined in her November 17, 2022 report that she could find no psychological functional impairment and concluded that the applicant does not meet the threshold for a diagnosis. Ms. Miller, psychologist, undertook a mental status examination with the applicant as well as administering 4 objective tests and undertook a document review which was inclusive of Ms. Aghamohseni’s report and the applicant’s family doctor records. I accept these opinions because the applicant has not submitted evidence sufficient to challenge them.
11The applicant did not identify which essential tasks he was unable to undertake. According to the applicant’s testimony, the essential tasks of his employment as a tow truck driver are to respond to calls for driver/vehicle assistance, physical labour involving heavy objects with bending and lifting, and working on uneven terrain, such as road-side ditches. I was not pointed to which of these essential tasks the applicant was incapable of performing. The applicant testified that he operated as a trainer following the accident; that in this role as trainer he was to ensure the replacement driver was safe and performing the role effectively. This testimony led me to conclude, on a balance of probabilities, that the employer was not concerned about the applicant’s ability to recall how to safely operate in the role; to communicate the nature of and key steps to the essential tasks of the role; to observe the trainee and provide feedback on performance to the trainee and employer. The applicant later testified that following the training role he did undertake the role of tow truck operator on multiple occasions. The applicant did not identify when he ceased working as a tow truck operator.
12The evidence points to MIG-related physical injuries as the reason for any inability to undertake essential tasks. The treatment records of Progressive Rehabilitation, identify physical injuries that are minor in nature, pursuant to the definition of a “minor injury” from the Schedule. The OCF-3 of March 10, 2022, by Dr. Anmol Sidhu, chiropractor, of Progressive Rehabilitation, identifies that the applicant has a substantial inability to undertake the essential tasks of his employment, but also indicates that he could undertake the essential tasks with some duty modification. Dr. Sidhu’s opinion regarding the ability of the applicant to undertake the essential tasks is based on physical presentation, and it does not offer support to the applicant’s position that psychological sequela prevents him from undertaking the essential tasks of his pre-accident employment. Alternatively, if the applicant had submitted that he was unable to undertake the essential tasks of his employment on the basis of the physical injuries identified by Dr. Sidhu, I note that the OCF-3 outlines that the applicant can undertake employment with modified duties. The applicant has testified that he did undertake modified duties as a trainer. The applicant also testified that on multiple occasions following the training role he worked full-time as a tow truck operator. Therefore, I see no evidence that the applicant encountered a substantial inability to perform the essential tasks of his employment on a physical basis.
13There is also no evidence as to when the applicant ceased working after a return in January, February, or March of 2022. The applicant provided answers with multiple different dates on which he worked following the accident, which made determining when he ceased working not possible.
14The applicant’s payroll evidence demonstrates he was working on modified duties when his OCF-2 states that he was off work due to the subject accident. The payroll summary from the employer, for December 30, 2021 to January 13, 2022 and January 14, 2022 to January 30, 2022, states that the applicant had similar amounts of remuneration over each pay period, which appears to be approximately 50% of the OCF-2 reported income in any one of the 2 bi-weekly pay periods proceeding the accident. The OCF-2 of February 8, 2022, from the employer states that the applicant is off work from December 15, 2021 to March 1, 2022. Taken together, it is not possible to determine if the applicant did not work following the subject accident.
15Finally, I note that the employment income submitted to the Canada Revenue Agency for the 2021 taxation year is $38,125, and, for the 2022 taxation year, is $34,646. These amounts suggest to me that the applicant had similar employment income in the years before and after the accident. Taken together, and on a balance of probabilities, I find the applicant was employed and earning a similar level of income following the accident.
16Based on the above, I find the applicant has not met his onus to prove, on a balance of probabilities, that he suffered a substantial inability to perform the essential tasks of his employment in the first 104-weeks following the subject accident.
The applicant has not met his onus to establish a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience
17To receive payment for a post-104 week IRB under s. 6 of the Schedule, the applicant must demonstrate, on a balance of probabilities, that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
18The applicant has not demonstrated that he suffers a substantial inability to perform the essential tasks of his pre-accident employment. I have not been pointed to any evidence that an assessor has opined that the applicant suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited. Therefore, I am further satisfied that the applicant’s evidence is not sufficient to demonstrate, on a balance of probabilities, that he suffers a complete inability to engage in any employment for which he is reasonably suited by education, training, or experience.
The applicant has not met his onus and remains within the MIG
19For the reasons that follow, I find that the applicant has not met his onus and remains within the MIG.
20Section 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.”
21An 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 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.
22The applicant submits that psychological issues related to the accident should remove him from the MIG, and he relies on his testimony, the CNRs of Dr. Krishnan, the report of Ms. Aghamohseni, and the treatment records of Progressive Rehabilitation.
23The respondent submits that the applicant properly remains within the MIG, that any psychological symptoms the applicant is reporting do not rise to the threshold of an impairment, or, in the alternative, they have resolved. It relies on the CNRs of Dr. Krishnan and the report by Ms. Miller.
24Once again, I find Dr. Krishnan does not diagnose a psychological impairment. As stated previously, I find no references in the CNRs to a specific diagnosis, nor are there referrals for psychological enquiry or support. It also appears that symptoms voiced by the applicant 9 months following the accident were effectively treated with the prescription provided.
25The report by Ms. Aghamohseni was earlier identified as carrying little weight, because none of her tests included validity measures, and there was no document review conducted. Once again, I note that Ms. Aghamohseni was not called as a witness to speak to her report.
26The treatment records of Progressive Rehabilitation do not provide any diagnosis of a mental health issue and do not outline symptoms, impacts, or goals related to psychological sequela. The records demonstrate that physiotherapist Avni Parmar of Progressive Rehabilitation assesses that the applicant had physical injuries that the Schedule classifies as a “minor injury”, for which he was receiving treatment.
27I am not persuaded by the testimony of the applicant that he suffers from a mental health issue. At the hearing, the applicant did not provide any compelling testimony regarding psychological symptoms or sequela that he is experiencing.
The applicant is not entitled to the treatment plans in dispute
28As I have found that the applicant remains within the MIG, I am not required to determine whether the treatment plans submitted in this dispute are reasonable and necessary.
29As an alternative argument, the applicant submitted that he is entitled to the disputed treatment plans because the respondent’s denials did not comply with the requirements in s. 38(8) of the Schedule.
30I find that the respondent’s denials complied with s. 38(8) of the Schedule and, therefore, the applicant is not entitled to payment of the treatment plans on this basis.
31Section 38(8) provides that an insurer shall respond to a treatment plan within 10 business days of receiving it by identifying the goods, services, assessments, and examinations described in the plan that the insurer does not agree to pay for. The insurer must provide medical and all other reasons why it has determined that the treatment plan is not reasonable and necessary.
32If an insurer does not comply with its obligations under s. 38(8) of the Schedule, the following consequences under s. 38(11) of the Schedule may be triggered:
i. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
ii. The insurer must pay for all goods, services, assessments, and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).
33The applicant submits that the three treatment plans in dispute at this hearing were denied with “boiler-plate” language that does not meet the standard outlined in s. 38(8).
34The respondent submits that their denial of treatment plans in all three instances were compliant with s. 38(8), namely, MIG is the medical reason provided, and the respondent invited the applicant to supply more medical documentation for consideration.
35The applicant pointed me to Cruz v. Western Assurance Company, 2024 CanLII 67342 (ON LAT) in support of his position. The case outlines what is my understanding of s. 38(8).
36All three denials contain sufficient medical and other reasons to satisfy the s. 38(8) requirements. All three denial letters contain references to the MIG as the reasons for the denial. They also request additional documentation to further consider entitlement. I find that these denials are compliant with the Schedule.
Interest
37As the applicant has not established entitlement to any of the benefits in dispute, no interest is due.
ORDER
38For the reasons above, I find that the applicant:
i. has not met his onus to establish entitlement to the pre-104 or post-104 week IRB.
ii. remains within the MIG and is subject to its treatment and rehabilitation limits.
iii. is not entitled to the treatment plans or the OCF-6 in dispute; and
iv. has not established entitlement to any of the benefits in dispute, therefore no interest is owing.
39The application is dismissed.
Released: May 9, 2025
Timothy Porter
Adjudicator