Licence Appeal Tribunal File Number: 23-003344/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:
Amrinder S Parmar
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Steve Gilchrist
APPEARANCES:
For the Applicant:
Waqas Amjad, Paralegal
For the Respondent:
Nickola Haddad, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Amrinder Parmar, the applicant, was involved in an automobile accident on May 21, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2Intact Insurance Company, the respondent, held the applicant within the Minor Injury Guideline (“MIG”) and denied three treatment plans.
3The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
4The issues in dispute are:
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 MIG limit? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to $3,389.62 for physiotherapy services, proposed by Airport Rehab Centre in a treatment plan dated October 12, 2021?
Is the applicant entitled to $3,164.00 for physiotherapy services, proposed by Airport Rehab Centre in a treatment plan dated July 12, 2021?
Is the applicant entitled to $814.29 ($2,460.00 less $1,645.71 approved) for a Psychological Assessment, proposed by Complete Rehab Centre in a treatment plan dated February 21, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld interest or delayed payments to the applicant?
Is the applicant entitled to on any overdue payment of benefits?
RESULT
5The applicant has not demonstrated that he suffers from injuries that are outside of the minor injury definition in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.
6The parties have agreed that the MIG limits have been exhausted. As the applicant remains within the MIG, and there are no further funds within it, there is no need to assess the disputed treatment plans on the basis of whether they are reasonable and necessary. No interest is owing.
7As there are no benefits owing, it follows that the applicant is not entitled to an award for withheld or delayed payments.
ANALYSIS
Applicability of the Minor Injury Guideline
8I find that the applicant has not demonstrated that he suffers from chronic pain or psychological impairments as a result of the accident. Accordingly, the applicant remains within the MIG and its $3,500.00 limit on treatment.
9Section 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.”
10An 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.
11In all cases, the burden of proof is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG. The applicant argues he should be removed from the MIG for the following grounds: (a) he has ongoing pain which has become chronic; and (b) he has psychological impairments.
12The respondent counters that at most the applicant suffered transient sprain/strain injuries that fall within the Schedule’s definition of a minor injury. The respondent further argues that the applicant has not provided evidence of functional impairment, as a result of pain or psychological injury. Accordingly, the respondent seeks a finding that the applicant be held within the MIG and its $3,500.00 treatment funding limit.
The applicant has not established that he sustained chronic pain with a functional impairment
13I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain with a functional impairment.
14A diagnosis of chronic pain or chronic pain syndrome is not required for removal from the MIG treatment limits. In the absence of a diagnosis, the applicant must demonstrate, on a balance of probabilities, that he suffers from accident-related pain that causes functional impairment.
15The applicant argues that he suffers from physical and psychological injuries as a result of the accident which warrant his removal from the MIG. The applicant supports this claim with reference to the clinical notes and records (“CNRs”) of Dr. Kirit Thakkar, family physician, a Disability Certificate (“OCF-3”) also completed by Dr. Thakkar, as well as the CNRs of the physiotherapists at Airport Rehab Centre. He further supports his claim with an OCF-3 prepared by physiotherapist Amna Bajwa, on June 12, 2021 and an OCF-18 treatment plan by proposed by Basran Sukhmani, physiotherapist, on July 12, 2023. I find there is no evidence, in the CNR’s of pain that had resulted in functional impairment that would fall outside of the MIG.
16The CNRs for Dr. Thakkar, from May 21, 2018 to October 25, 2023, suggest ongoing neck and back pain, but the primary strategies for relief include over-the-counter medication such as Voltaren and Tylenol, as well as physiotherapy. During the applicant’s visit to Dr. Thakkar, on May 1, 2023, he stated the physiotherapy “helped”, and that the intermittent pain occurred “mostly in cold months”.
17The medical evidence of Dr. Thakkar does not establish pain with the related functional impairment that is necessary to remove the applicant from the MIG. I am aware of the soft tissue damage and neck and back pain diagnosed by Dr. Thakkar, immediately after the accident, but subsequent visits by the applicant describe transient, intermittent and conflicting descriptions of the locus and extent of any pain.
18It is in the context of the repeated visits to Dr. Thakkar, and the CNRs arising from those visits, that I considered the OCF-3 prepared by Amna Bajwa and the OCF-3 prepared by Dr. Thakkar, himself. The OCF-3 prepared by Ms Bajwa was based on an assessment which took place 20 days after the MVA. This assessment diagnosed the applicant as suffering from whiplash associated disorder, sprain and strain of the cervical spine, sprain and strain of the lumbar spine and sleep disorders. However, in Part 6 of the assessment, Ms Bajwa would appear to minimize the significance of those ailments by indicating that the expected duration of the injuries would be “9-12 weeks” and listed no medication prescribed to deal with any symptoms. Furthermore, when answering the questions regarding the applicant’s ability to perform the duties of his employment and whether could return to work with modified hours and/or duties, she marks “N/A”, or not applicable, rather than “yes” or “no”.
19We have, in the “Patient Memorandum” prepared by Dr. Thakkar, as part of an Addendum to the OCF-3, that the applicant had only taken one week off work, after the accident so, presumably, had already returned to work by the time Ms Bajwa performed her assessment. As a result of the lack of significance placed on the injuries, and their possible impact on the applicant’s employment, and the short time after the MVA when the assessment was performed, I place less weight on this OCF-3 than I give to subsequent assessments which better reflect the actual, rather than predicted, recovery of the applicant.
20I have also considered the OCF-3 prepared by Dr. Thakkar. I have the benefit of Dr. Thakkar’s CNR’s for 3 visits, by the applicant, in the weeks prior to the preparation of the OCF-3, as well as one visit 8 weeks later. In the OCF-3, Dr. Thakkar diagnoses lower and upper back pain, neck pain and anxiety for driving. In the “Patient Memorandum” referenced above, the applicant lists a total of 23 injuries suffered as a result of the MVA. However, Dr. Thakkar only lists four injuries and that is consistent with the CNRs from the applicant’s visits to Dr. Thakkar on May 1, 2023, June 22, 2023, June 30, 2023 and August 25, 2023. In each of those visits, there are references to neck and back pain but, at each visit, Dr. Thakkar prescribes only Tylenol and Voltaren.
21In Part 6 of the OCF-3, Dr. Thakkar answers “yes” to the question of whether the applicant is unable substantially perform the essential tasks of his employment in which he ordinarily engaged before the accident. He answers “no” to the question of whether the applicant can return to work on modified hours and/or duties. However, on page 7 of the same Addendum to the OCF-3, Dr. Thakkar answers “no” to the question “In your medical opinion, does your patient have any functional limitations that affect his/her ability to perform their regular activities of daily living”.
22This definitive statement, plus the intermittent and transient nature of the pain recorded in Dr. Thakkar’s CNRs, do not demonstrate any functional impairment arising from chronic pain.
23During the approximately fifty-one physiotherapy treatments at the Airport Rehab Centre, the overwhelming majority of CNRs include a reference to self-reports of “Some Improvement” to pain and mobility issues as a result of the treatments. More notably, there are several references to the applicant’s self-report that the recommended exercises, performed at his home, were “providing relief”.
24I find that the CNRs of the Airport Rehab Centre provide insufficient evidence of a functional impairment sufficient to remove the applicant from the MIG.
25The OCF-18 proposed by Basran Sukhmani suggested that the applicant was experiencing whiplash syndrome, sprain and strain of cervical spine, sprain and strain of lumbar spine and other sleep disorders. This OCF-18 is the only one to suggest that the applicant’s injuries affected his ability to carry out both his employment duties and activities of daily living but it contains no reference to testing or how that conclusion was reached. I have considered the evidence provided by Mr. Sukhmani but, taken in the context that the applicant has taken almost no time off work, since the accident, I give greater weight to this work record.
26In sum, the evidence provided by the applicant does not support the claim that he suffers from a functional impairment as a result of chronic pain arising from the accident.
27Further, I find the respondent has produced compelling s. 44 assessments by Dr. Ahmed Mian, MD, which provide evaluations that are contradictory to the position of the applicant. Dr. Mian assessed the applicant on two occasions, on September 19, 2022 and August 29, 2023.
28During the first assessment, Dr. Mian noted the absence of objective physical evidence for ongoing physical ailments related to the subject accident. The assessment also included the admission by the applicant that he was completely independent in his activities of daily living. Dr. Mian indicated that the applicant had a full range of function. He concluded that the applicant had suffered a transient impairment, and that the applicant would have healed completely within a maximum period of 8 to 12 weeks.
29In the August 29, 2023 assessment, the applicant reported the delayed onset of back pain, not reported in the earlier assessment, but that it had resolved itself and his only residual issue was neck pain. Dr. Mian’s second assessment arrived at the same conclusion as the first, namely that the proposed treatment plans for physiotherapy were unnecessary and unreasonable based on the diagnosis plus too much time had elapsed since the accident. Dr. Mian reported the applicant
indicated he had returned to full employment, two weeks after the accident, with his normal work hours and duties. In the applicant’s evidence, the only report of any work-related impact was a reference in the CNRs of Dr. Thakkar, that he took one day off work.
30Relying on the assessment reports of Dr. Mian, the respondent argues that the applicant has not established consistent, compelling and contemporaneous evidence of chronic pain sufficient to warrant removal from the MIG. I consider the assessments by Dr. Mian to be thorough and detailed, with consideration of the various OCF-18’s plus the available medical records, and his conclusions appear well-grounded in his personal observations, as well as the comments made by the applicant, during the assessments.
31I have considered the submissions and evidence of the parties and, for the reasons described above, I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain with functional impairment. He has not demonstrated that he warrants removal from the MIG based on this ground.
The applicant has not established that he should be removed from the MIG on the basis of a psychological impairment
32I find that the applicant has not met his burden of proof to demonstrate that he should be removed from the MIG based on a psychological impairment.
33Psychological impairments are not included in the definition of “minor injury” pursuant to s. 3 of the Schedule. The onus is on the applicant to establish that he sustained a psychological impairment as opposed to psychological sequelae of a minor injury.
34The applicant is relying on an OCF-18 proposed by Sandeep Kaur, psychotherapist, and Dr. Sedigheh Naisi, psychologist, of Complete Rehab Centre. In that assessment, the applicant reported neck, shoulder and back pain. He indicated that he was unable to complete the activities he did before the accident, had sleep issues, ongoing stress, nervousness, anger and frustration.
35The applicant completed another psychological assessment on September 20, 2022, also administered by Sandeep Kaur and Dr. Sedigheh Naisi, in which they diagnosed the applicant with Major Depressive Disorder, Moderate, Specific Phobia Situational Type (Motor Vehicles) and Somatic Symptom Disorder, with Predominant Pain, Persistent. While it may have had little or no impact on the outcome of the tests, the assessors made the point of qualifying their assessment by indicating that it had been done online, rather than in person.
36As part of the assessment, a variety of self-reports were completed by the applicant. In the Beck Depression Inventory-2, the applicant obtained a score which indicated “moderate” depression. In the Beck Anxiety Inventory, he obtained a score which indicated “moderate” anxiety. In the Pain Patient Profile, he obtained what the examiners describe as a “valid profile”. On the PTSD checklist, the applicant obtained a score of 43 out of a possible 80 but the assessor does not offer a conclusion as to the import of that score. Finally, on the Miller Forensic Assessment of Symptoms tests, the applicant had a score which fell in the “normal” range.
37Despite categorizing the test scores as “moderate” or “normal”, the assessors then summarized by stating the applicant had “severe levels of emotional distress”. There is a lack of connection, between the test scores and the diagnoses made by the assessors, sufficient to accept their conclusions at face value. Moreover, the assessors even add the qualification that “(l)inguistic and cultural factors can impact the reliability and validity of psychological test measures”. For that reason, I have given less weight to this assessment.
38Under the heading of “diagnosis”, the assessor notes that the applicant “endorses” various ailments, including “fluctuating depressed mood, hopelessness, frustration and difficulties with sleeping” but these comments about psychological symptoms are not supported by the CNRs of his family doctor, Dr. Thakkar, taken during the many visits by the applicant. Specifically, during all the examinations by Dr. Thakkar, the applicant only occasionally raises sleep issues and he only mentions “anxiety”, two years after the MVA, on June 30, 2023, and only “when driving, especially at nighttime”. Given the more frequent visits with Dr. Thakkar, I place more weight on his notes than on the diagnosis by the assessor.
39The respondent is relying on a s. 44 psychological assessment report by Dr. Fabio Salerno, from August 25, 2022, in which he concludes the applicant did not sustain a diagnosable psychological injury in the accident. Dr. Salerno confirmed that the assessment plan for a psychological assessment was not reasonable or necessary.
40In his report, Dr. Salerno notes that the applicant “denied the need for psychological treatment for the subject accident”. I have no evidence before me that contradicts this admission. Furthermore, during his assessment by Dr. Mian, on October 3, 2022, when asked about “psychological issues” the applicant reported “none”. Dr. Salerno outlines extensive testing and concluded that the applicant does not have any DSM-5 criteria-based diagnoses though he noted that a validity measure for somatic complaints suggest marked symptom over-reporting.
41Dr. Salerno’s assessment contradicted many of the claims in the applicant’s assessment, including the applicant claiming he had the same level of interest in his daily activities as he had pre-accident, did not articulate any mood disturbances and any in-vehicle anxiety had not prevented him from driving as required. I place more weight on Dr. Salerno’s conclusion that the applicant did not meet the diagnostic criteria for any psychological disorder because it is more consistent with the medical records of Dr. Thakkar, which do not reflect reports of psychological impairments.
42Similarly, the assessment by Dr. Salerno makes very specific references to the applicant’s self-reporting of the nature and extent of any psychological issues. For example, the applicant notes that he was only “intermittently sad only once or twice a week lasting between 5 and 10 minutes”. By contrast, the diagnosis by Dr. Kaur employed generalities without any specific language that would offer an objective counterpoint. I find the level of detail and analysis in Dr. Salerno’s report carries more weight than the assessments submitted by the applicant.
43For the reasons set out above, I find that the applicant has not established on a balance of probabilities that he has a psychological impairment that warrants removal from the MIG.
Payments in excess of the MIG limits
44The applicant also noted that the respondent partially approved the treatment plan for a psychological assessment, which resulted in payments in excess of the MIG limit. The applicant suggests that these payments amount to a waiver of the respondent’s MIG position.
45The respondent counters that the partial approval of the psychological assessment was done in error, and that the respondent expressly notified the applicant that it was not waiving its MIG position.
46Having originally denied the psychological assessment plan on March 21, 2022, the respondent received additional medical documentation on May 17, 2022, at which time, the respondent arranged a s. 44 psychological assessment. On June 28, 2022, the respondent issued a partial approval, for $1,645.71, of the plan in error. It did so by way of fax, with no other communication with the applicant. The respondent claims that the error arose from confusion over a related claim, by someone with the same surname, arising from the same accident.
47The respondent asserts that administrative errors do not automatically entitle the applicant to benefits nor does it alter their MIG position. They provide, as their authority, 17-006874 v Aviva Insurance Canada, 2018 CanLII 95585 (ON LAT) which cites the Court of Appeal for Ontario’s decision in Stranges v. Allstate Insurance Co. of Canada, 2010 ONCA 457, 266 O.A.C. 308 (CA).
48The applicant did not supply any authorities to contradict the respondent’s position.
49Accordingly, on the basis of the respondent’s explanation, and after consideration of the authorities cited, I agree with the position of the respondent. I find that the partial payments made on the psychological assessment treatment plan do not constitute a waiver of the respondent’s MIG position.
50Having found that the applicant sustained a predominantly minor injury, it follows that he is subject to the MIG and the $3,500.00 funding limit on treatment. Therefore, I find that consideration of an analysis of whether the disputed OCF-18 treatment plans are reasonable and necessary is not required.
51Similarly, without any payments owing to the applicant, there is no basis for interest.
Award
52The applicant maintains that he is entitled to receive an award under s. 10 of Reg. 664.
53Under s. 10 of Reg 664, the Tribunal can award a lump sum of up to 50 per cent of the amount to which the person was entitled to at the time of the award to an insured person, if, the respondent is found to have unreasonably withheld or delayed payments of benefits.
54The applicant contends that the respondent unreasonably withheld and delayed payments when it ignored medical evidence that supports the approval of necessary benefits.
55Since there are no payments owing to the applicant, there is no basis for granting an award in this case.
ORDER
56For the reasons outlined above, I find that:
a. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
b. No payment is owing from any of the treatment plans in dispute, nor is any interest owing.
c. The applicant is not entitled to an award.
d. The application is dismissed.
Released: May 9, 2025
Steve Gilchrist
Adjudicator