Citation: Greaves v. Unifund Assurance Company, 2025 ONLAT 23-008926/AABS

Licence Appeal Tribunal File Number: 23-008926/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:

Cohayne Greaves

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Bianca Pirrotta-Iaccino, Paralegal

For the Respondent: David Koots, Counsel

HEARD: By way of written submissions

OVERVIEW

1Cohayne Greaves, the applicant, was involved in an automobile accident on May 5, 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, Unifund Assurance 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:

1. 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?

2. Is the applicant entitled to the treatment plans/OCF-18s (“treatment plans”) proposed by Alma Rehab Inc., as follows:

(i) $1,995.33 for a psychological assessment, in a treatment plan submitted on July 19, 2021;

(ii) $3,157.39 for chiropractic services, in a treatment plan submitted on September 19, 2021;

(iii) $2,825.37 for chiropractic services, in a treatment plan submitted on November 25, 2021; and

(iv) $2,542.23 for chiropractic services, in a treatment plan submitted on April 8, 2022?

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

RESULT

3I find that:

1. The applicant’s injuries are predominantly minor and thus subject to treatment within the $3,500.00 MIG limit.

2. As the applicant remains within the MIG, it is not necessary to determine whether the treatment plans in dispute are reasonable and necessary.

3. As no payments are owing, no interest is due.

4. The application is dismissed.

ANALYSIS

Applicability of the Minor Injury Guideline

4I find that the applicant has not met his onus to prove on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

5Section 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.”

6An 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 removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant submits that he suffers from a pre-existing condition, psychological impairment, and physical injuries that warrant his removal from the MIG. The applicant relies on the OCF-3 prepared by Roger Singh, chiropractor, of Alma Rehab Inc, dated May 17, 2021; the consultation report prepared by Sharlene Gumbs, social worker, dated July 7, 2021; and the treatment plan prepared by Konstantinos Papazoglou, psychologist, dated July 30, 2021.

8The applicant further relies on the clinical notes and records (“CNRs”) of his family doctors, Dr. Leonard Sadinsky, physician, and Dr.Tazeen Al-Haq, physician, of Heart Lake Medical Centre.

9The respondent submits that the applicant has not met his onus to prove that a pre-existing condition or accident-related injuries warrant his removal from the MIG. The respondent relies on the Insurer’s Examination report (s.44 report) of Dr. R. Moolla, physician, and the s.44 report of Dr, Medhi Lotfalizadeh, psychologist, both dated November 24, 2021.

Pre-existing condition

10I find that the applicant has not established that he has a pre-existing condition that would preclude his recovery if he were to remain within the MIG limits.

11The applicant submits that he was diagnosed with Generalized Anxiety Disorder (GAD) two or three years before the accident, which he reported to Dr. Lotfalizadeh at his s.44 examination on October 18, 2021. The applicant has not directed me to any medical evidence to corroborate this diagnosis to meet the first part of the test.

12Further, the applicant has not directed me to any compelling medical evidence that the condition precludes his recovery within the MIG to meet the second part of the test. Therefore, I find that the applicant has not met his onus to prove that he has a pre-existing condition that warrants removal from the MIG.

Psychological lmpairment

13I find that the applicant has not established that he has a psychological impairment that warrants removal from the MIG.

14The applicant submits that he is suffering from a psychological impairment as a result of the accident, and relies on the pre-screening assessment conducted by Aliya Dowlut, registered psychotherapist, under the supervision of Dr. Konstantinos Papazoglou, psychologist, on June 29, 2021.

15The respondent argues that the applicant has not met his burden to prove that he sustained a psychological impairment as a result of the accident, because the pre-screening assessment is not supported by any other medical evidence from a treating physician or psychologist. The respondent relies on Dr. Lotfalizadeh’s s. 44 report.

16In his pre-screening assessment, Dr. Papazoglou indicated that the applicant’s symptoms support a provisional diagnosis of Adjustment Disorder (with mixed anxiety and depression). I assign the pre-screening little weight because it was conducted by telephone, the applicant’s self reports of his psychological history are not consistent with his self-reports to s.44 assessors, and the pre-screening is not supported by contemporaneous medical evidence. For instance, the applicant told Ms. Dowlut that he did not have a history of anxiety prior to the accident, and reported to Dr. Lotfalizadeh he had been treated with medication after a diagnosis in 2018.

17I assign more weight to Dr. Lotfalizadeh’s s.44 report, as Dr. Lotfalizadeh conducted an interview, a review of the applicant’s medical records, and psychometric testing at his October 18, 2021 s.44 examination. Dr. Lotfalizadeh acknowledged the applicant’s self-report of a previous diagnosis of GAD, and opined that it had “not been exacerbated as a result of the accident and has not affected his recovery from Injuries sustained in the accident.” Dr. Lotfalizadeh further opined that the applicant had developed some psychological symptoms as a result of the accident, but that the applicant did not have a “diagnosable psychological impairment” as a result of the accident and that the treatment plan for a psychological assessment was not reasonable and necessary.

18The applicant argues that the results of the psychometric tests conducted by Dr. Lotfalizadeh indicated that the applicant fell within the severe range for depression, the moderate range for anxiety, and a mild disability. However, Dr. Lotfalizadeh opined that the applicant’s scores could not be considered valid because the applicant scored above the cut off for malingering on the Structured Inventory of Malingered Symptomatology (SIMS) and based his opinion on the clinical interview and available documents.

19The applicant relies on 17-006460 v Scottish & York, 2018 CanLII 112111 (ON LAT) in which the Tribunal found that a diagnosis was not required to support a finding that a treatment plan was reasonable and necessary. I agree. I find 17-006460 Scottish & York is of little help to my analysis, as it addresses the applicant’s entitlement to a treatment plan, and not, as in this case, whether the applicant should be removed from the MIG.

20However, in the present case, the applicant’s self-reported psychological history and degree of symptoms and functional limitations are inconsistent between the pre-screening and the s.44 assessment. Absent corroborating medical evidence from a treating physician or a satisfactory reconciliation of the applicant’s inconsistent reporting, I find insufficient basis to support a finding that the applicant sustained a psychological impairment as a result of the accident that warrants removal from the MIG.

21Therefore, I find that the applicant has not met his onus to prove on a balance of probabilities that he has a psychological impairment to warrant removal from the MIG.

Physical impairment

22I find that the applicant’s physical injuries fall within the MIG limits.

23The applicant submits that he should be removed from the MIG on the basis that he has ongoing physical impairments. The applicant argues that Dr. Moolla’s s. 44 report supports the applicant’s claim of ongoing impairment. I disagree. In his s. 44 report, Dr. Moolla opines that the applicant sustained sprain and strain injuries to his shoulder, cervical spine, and right knee, that there was no objective sign of accident-related impairment, and that the applicant’s accident-related injuries fall within the MIG.

24The OCF-3 and the CNRs of the applicant’s treating physicians reveal that the applicant sustained soft tissue injuries as a result of the accident, which fall squarely within the MIG, and I find are consistent with Dr. Moolla’s diagnosis.

25Therefore, I find that the applicant has not met his onus to prove on a balance of probabilities that the physical injuries he sustained in the accident warrant his removal from the MIG.

26For the reasons above, the applicant remains within the MIG. If any funding remains within the $3500.00 MIG limit, the applicant is entitled to the remaining amount.

27As the applicant remains within the MIG, it is not necessary to determine whether the treatment plans in dispute are reasonable and necessary.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

ORDER

29For the above reasons, I find:

1. The applicant sustained a predominantly minor injury as a result of the accident. He remains subject to the MIG and its $3,500.00 limit.

2. It is not necessary to determine whether the disputed treatment plans are reasonable and necessary as a result of the accident.

3. No interest is owing.

4. The application is dismissed.