Citation: Barbosa v. Belair, 2025 ONLAT 22-010462/AABS

Licence Appeal Tribunal File Number: 22-010462/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:

Ryan Barbosa

Applicant

and

Belair

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Christine Kako, Paralegal

For the Respondent:

Matthew Stanley, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Ryan Barbosa, the applicant, was involved in an automobile accident on August 21, 2020, 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, Belair, 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 (the “MIG’) limit? Note: The parties agree the MIG limits have been exhausted.

2. Is the applicant entitled to the assessments proposed by Alma Rehab, as follows:

i. $1,995.33 for psychological services, in an OCF-18/treatment plan (“treatment plan”) dated January 6, 2021;

ii. $2,441.07 for chiropractic services, in a treatment plan dated July 30, 2021;

iii. $2,737.69 for physiotherapy services, in a treatment plan dated April 5, 2021; and

iv. $2,838.79 for chiropractic services, in a treatment plan dated December 22, 2020?

3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 MIG limit;

ii. As the MIG limits have been exhausted, the applicant is not entitled to any of the treatment plans in dispute; and

iii. The applicant is not entitled to interest.

iv. The application is dismissed.

ANALYSIS

The Minor Injury Guideline

4I find that the applicant has not demonstrated that removal from the MIG is warranted.

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 in accordance with the MIG. 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 person 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 that demonstrates the condition precludes recovery if they confined to the MIG. In addition, the Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.

7The burden is on the applicant to show, on a balance of probabilities, that their injuries are outside of the MIG.

8The applicant submits that he suffers ongoing chronic pain resulting from the accident and is entitled to treatment beyond the $3,500.00 MIG limit. The applicant submits that since sustaining soft tissue injuries in the motor vehicle accident, he has experienced pain in his lower back and pelvis, which has impacted his ability to work and carry out activities of daily life. The applicant further submits that he consistently reported pain(?) to his family doctor and was diagnosed with chronic pain syndrome by Dr. Bhavin Patel, a pain specialist.

9The applicant relies on the clinical notes and records (CNR’s) of Dr. Ali Ismeal, physician, and Dr. Mohammed Barbouti, physician, of the Richvale Medical Centre, and Dr. Bhavin Patel, of the Neupath Pain and Spine Clinic. The applicant further relies on the OCF-3 prepared by Dr. Roger Singh, chiropractor, of the Alma Rehab Inc, and the OCF-18 prepared by Dr. Konstantinos Papazoglou, psychologist.

10The respondent counters that the applicant has not met his onus to prove that he suffers from chronic pain with functional impairment and that the applicant has not met at least 3 of the 6 criteria in the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to support a finding of chronic pain.

11The respondent relies on the s.44 reports of Dr. Alan Chan, psychologist and Dr. Allan Kopyto, physician.

12I accept that the applicant has experienced ongoing pain as a result of the motor vehicle accident, however, I find that the applicant has not met his evidentiary burden to prove on a balance of probabilities that he suffers from chronic pain with functional impairment.

13I find that the evidence establishes that the applicant experienced ongoing pain as a result of his accident-related soft tissue injuries. The applicant first reported back and hip pain to Dr. Ismeal shortly after the accident in September of 2020, and again in December 2020. The applicant was prescribed pain medication and referred for physiotherapy and a psychological assessment. In his reply submissions, the applicant submits that he has experienced “constant” pain since the accident, however, the Richvale Medical Centre’s CNR’s reveal that there were significant gaps in the applicant’s reports of pain to his family doctors, which I find suggests periodic, rather than consistent pain.

14The applicant did not report pain again to his family doctors until nine months later in August 2021, when the applicant was referred for x-ray, ultrasound, and MRI imaging, which did not reveal any abnormalities that explained the applicant’s pain. The Richvale Medial Centre CNR’s reveal that the applicant continued to complain of back, hip and leg pain to his family doctors on 4 occasions between November, 2021 and February, 2022, but did not complain again of pain to Dr. Ismeal until almost one year later in February, 2023. The applicant subsequently reported lower back pain on April 19, 2023, and lower back pain “for days” on September 22, 2023, and back pain following a foot injury in December 2023. Dr. Ismeal continued to refer the applicant to physiotherapy, but the evidence reveals that the applicant last participated in physiotherapy in April 2021.

15The applicant argues that Dr. Ismeal diagnosed the applicant with “chronic back pain” and referred the applicant to a pain specialist. Dr. Patel diagnosed the applicant with chronic pain syndrome on February 7, 2022 and recommended a list of medication and other therapies to be considered, which the applicant declined to pursue. I place less weight on Dr. Patel’s report, because Dr. Patel did not have access to the applicant’s medical records and, while Dr. Patel concluded that the applicant had experienced deconditioning in his core and quadriceps, this observation was not noted in Dr. Patel’s physical examination notes, and the finding was not supported by any contemporaneous medical evidence.

16I assign more weight to Dr. Kopyto’s s. 44 report, dated May 25, 2022, because Dr. Kopyto reviewed the applicant’s medical records, conducted a thorough physical examination and provided detailed findings. Dr. Kopyto opined that the applicant had a favourable prognosis for full recovery from his soft tissue injuries. At his May 10, 2022 s.44 examination, the applicant complained of ongoing lower back and hip pain, but told Dr. Kopyto that his leg pain had improved since the winter, and he was taking non-prescription Tylenol for his pain.

17Further, the applicant reported that he had not participated in physiotherapy since early 2021. Dr. Kopyto observed that the applicant had a normal range of motion in his back and hip, normal muscle mass, no tenderness, and that the applicant reported pain in his lower back only on interior rotation of the hip and raising his arms over his head. Dr. Kopyto also noted that the applicant did not report any significant functional limitation, and recommended no further medical, osteopathic, or medication treatment.

18Additionally, the respondent argues that the applicant does not meet 3 of the 6 criteria to support a diagnosis of chronic pain in accordance with the AMA Guides. While not incorporated into the Schedule, the Tribunal has found that the AMA Guides criteria for evaluating a chronic pain condition are a useful analytical tool. In the present case, I find that the AMA Guides would be beneficial to my analysis, because Dr. Patel’s chronic pain assessment report provides insufficient information about the applicant’s function to determine whether the applicant suffers from chronic pain with functional impairment.

19The AMA Guides state that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

20The applicant has not submitted any medical evidence of abuse of or dependence on prescription drugs or other substances as result of the accident or an excessive dependence on health care providers or family members. Further, the applicant has not indicated that he is withdrawing socially.

21The applicant submits Dr. Patel found evidence of physical deconditioning in his report, however, the applicant has not directed me to any corroborating evidence of this finding, and, as noted above, Dr. Kyopto found no evidence of physical deconditioning at his s. 44 examination 3 months after Dr. Patel’s examination. As a result, I find that the applicant has not established that he has experienced secondary deconditioning as a result of the accident.

22I find that the applicant has not established that his physical capacity is insufficient to pursue work, family, or recreational needs. The evidence reveals that the applicant has continued to pursue physically demanding work since the accident. The OCF-3 prepared by Dr. Roger Singh on August 28, 2020, reveals that the applicant had returned to work as a dog trainer with a reduced client load one week after the accident. The Richvale Medical Centre CNR’s reveal that the applicant told Dr. Ismeal that he was employed as a moulding operator in 2023.

23Further, the applicant’s claim that he has had to “constantly” take time off work as a result of his accident-related injuries is not corroborated by supporting evidence, as the CNR’s of the Richvale Medical Centre reveal a single instance of the applicant taking time off from work due to pain in 2023, more than 3 years after the accident.

24The applicant submits that he has experienced difficulty with driving and other activities of daily life, including sitting, standing, lying down and walking, due to his accident-related injuries, and relies on the OCF-3, which indicated that the applicant had a significant impairment in his ability to lead a normal life in the immediate aftermath of the accident. However, the OCF-3 is not corroborated by contemporaneous medical evidence. Additionally, the applicant’s claims are undermined by his reports to Dr. Kopyto at his May 10, 2022 s. 44 examination, where the applicant informed Dr. Kopyto that he continued to drive, that he was independent with his self care, and had no impairment with respect to household or maintenance duties.

25Further, I find that the applicant has not established that he is unable to participate in sports or “most outdoor activities,” because the applicant has not provided any detail or directed me to any evidence in support of this claim.

26Finally, I find that the applicant has not established that he has developed psychosocial sequelae from the accident. The applicant submits that he was referred for psychological treatment by Dr. Ismeal, and that he has a history of depression. The applicant relies on Dr. Patel’s report which includes a notation that the applicant has a history of depression.

27I place more weight on the s. 44 report of Dr. Konstantinos Papazoglou, dated January 4, 2021, because Dr. Papazoglou conducted a thorough psychological examination including a review of the applicant’s medical records, an interview, and psychometric testing. The report reveals that the applicant scored within the normal range for depression, anxiety and stress, and that the applicant denied any history of psychological or emotional difficulties and reported that he did not believe that he required psychological treatment. Dr. Papazoglou opined that the applicant was not experiencing a psychological disorder.

28Accordingly, I am not satisfied on a balance of probabilities that the applicant has chronic pain with functional impairment which warrants removal from the MIG.

29Since I have found that the applicant’s claims are subject to treatment within the $3,500.00 limit of the MIG, and since that limit has already been exhausted, the applicant is not entitled to the benefits claimed. It is not necessary to determine whether the OCF-18s in dispute are reasonable and necessary as a result of the accident.

Interest

46As no payments are owing, no interest is due.

Award

47The 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.

48As no submissions were made referencing an award under s.10 of Reg. 664, there is no basis upon which to consider an award in this matter.

ORDER

49I find that:

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. The applicant is not entitled to the treatment plan in dispute. As no benefits are payable, no interest is owing.

3. No award is payable.

4. The application is dismissed.