Licence Appeal Tribunal File Number: 23-011421/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:
Owen Smith
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Kim Mohammed-Sieudhan, Paralegal
For the Respondent: Kristofer B Angle, Counsel
HEARD: By way of written submissions
OVERVIEW
1Owen Smith, the applicant, was involved in an automobile accident on July 12, 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, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent raised a preliminary issue in this appeal, which was decided in a preliminary issue decision dated May 10, 2024. The Tribunal determined the applicant was not barred from proceeding to a hearing because he failed to answer questions during an examination under oath under s. 33(1) of the Schedule.
ISSUES
3The 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 the treatment/assessments proposed by Polymed Health Centre Inc., as follows:
$200.00 ($1,2084.32 less $1,084.32 approved) for chiropractic services, in a treatment plan/OCF-18 (“treatment plan”) dated September 18, 2021;
$3,835.84 for chiropractic treatment, in a treatment plan dated November 6, 2021;
$4,959.68 for chiropractic treatment, in a treatment plan dated September 19, 2022; and
$2,200.00 for a psychological assessment, in a treatment plan dated November 9, 2021?
iii. Is the applicant entitled to the assessments proposed by Elite Specialist Group, as follows:
$2,460.00 for a orthopedic assessment, in a treatment plan dated January 9, 2023; and
$2,460.00 for a chronic pain assessment, in a treatment plan dated January 9, 2023?
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
4The applicant has not proven on a balance of probabilities that his injuries warrant removal from the MIG.
5As the applicant remains in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
6As there are no benefit payments that have been unreasonably withheld or delayed, no award is owing.
7As there are no overdue benefit payments, no interest is owing.
8The application is dismissed.
ANALYSIS
Minor Injury Guideline (MIG)
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 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.
11The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG.
Chronic Pain with a functional impairment
12The applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment as a result of the accident.
13The applicant argues that he is suffering from chronic pain as a result of the subject accident. The applicant relies on the clinical notes and records (CNRs) of the applicant’s family doctor Dr. Kim. Additionally, the applicant relies on the CNRs of Polymed Health Centre, and an orthopaedic chronic pain assessment report by Dr. Benmoftah, orthopaedic surgeon, completed on January 25, 2023.
14I find that the CNRs of Dr. Kim do not support the applicant’s claim that he suffers from chronic pain with a functional impairment. The CNRs do not capture any reference to a functional impairment suffered by the applicant. Additionally, beyond the initial visit to report the subject accident, subsequent visits do not mention the subject accident in association with any ongoing pain reported by the applicant.
15I also find that the CNRs of Polymed Health Centre do not support the applicant’s clam that he suffers from chronic pain with a functional impairment. The CNRs do not refer to functional impairments suffered by the applicant. The CNRs report ongoing improvement by the applicant over the course of his treatment with the applicant reporting infrequent pain, overall feeling good, and stable with respect to low back and wrist pain. The CNRs also note that the applicant is working, attending the gym, and doing home exercise. The CNRs reference a second accident that the applicant was involved in on July 30, 2021, a fall that hurt the applicant’s left wrist mid October 2022, and a subsequent left wrist injury in February 2023.
16I place little weight on the orthopaedic chronic pain assessment report by Dr. Benmoftah. I find that this assessment report is not supported by the preponderance of the medical evidence. As set out above, the CNRs of Dr. Kim and Polymed Health Centre do not show any reporting of functional impairment. I find that the conclusions that Dr. Benmoftah are inconsistent with the balance of the other medical evidence provided.
17Finally, I note that the applicant makes reference in their written submissions about a visit to Humber River Hospital on July 30, 2021. The notes of that visit outline that the applicant suffered a second motor vehicle accident on July 30, 2021 at 7:40 AM of that day. This second accident is corroborated by the CNRs of Polymed Health Centre in a note on July 31, 2021 that states the applicant was involved in a second motor vehicle accident.
18I find that the applicant has not proven on a balance of probabilities that he suffer from chronic pain with a functional impairment that warrants removal from the MIG. The CNRs of the applicant’s family doctor and treating facility do not display complaints of ongoing pain, or identify any functional impairment that the applicant suffers.
19The applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.
Psychological impairment
20The applicant has not proven on a balance of probabilities that he suffers from a psychological impairment as a result of the subject accident.
21The applicant submits that he suffers from psychological injuries as a result of the subject accident. The applicant relies on a pre-screen report by Nancy Priftis, psychotherapist, an orthopaedic assessment report by Dr. Benmoftah, and the CNRs of Polymed Health Centre.
22I place little weight on the report of Dr. Benmoftah with respect to the applicant’s psychological impairment because he is an orthopaedic surgeon and therefore not qualified to opine on the applicant’s psychological condition. I also place limited weight on the psychological symptoms listed in the OCF-18 by Ms. Priftis dated September 27, 2021. As a physiotherapist, diagnosing psychological conditions are beyond her area of expertise.
23The applicant has not referenced additional medical evidence that would support that she suffers from a psychological condition as a result of the subject accident.
24I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological impairment as a result of the subject accident.
25As such, the applicant has not established that his accident-related impairments warrant removal from the MIG.
Section 33 argument
26I note the applicant’s s.33 argument, but do not find that I need to assess this as part of my determination in this case, as I have found the applicant is subject to the MIG.
27As I have found that the applicant is subject to the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owing.
Award
29The applicant sought an award under s. 10 of Reg. 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 benefit payments have been unreasonably withheld or delayed, no award is owing.
ORDER
30I find that:
i. The applicant remains in the MIG.
ii. As the applicant remains in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
iii. No interest is owing.
iv. The respondent is not liable to pay an award.
v. The application is dismissed.
Released: June 4, 2025
Robert Rock
Adjudicator