Licence Appeal Tribunal File Number: 23-010906/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:
Sharmila Patrick
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Raffi Akelian, Counsel
For the Respondent: Jeremy Hanigan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Sharmila Patrick, the applicant, was involved in an automobile accident on October 30, 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, Economical Insurance, 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 the treatments and assessments proposed by PhysioMed Bramalea, as follows:
$1,297.00 for physiotherapy services, in a treatment plan dated March 2, 2022;
$1,379.25 for physiotherapy services, in a treatment plan dated April 22, 2022; and
$2,574.00 for physiotherapy services, in a treatment plan dated December 7, 2021?
iii. Is the applicant entitled to the treatments and assessments proposed by Downsview Healthcare Inc., as follows:
$2,486.00 for a psychological assessment, in a treatment plan dated January 27, 2022; and
$2,486.00 for a physiatry assessment, in a treatment plan dated October 28, 2022?
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
3For the reasons below, I find:
The applicant’s impairments are predominantly minor, and thus, the MIG limit applies.
As the applicant is subject to the MIG, it is not necessary to consider whether the disputed treatment plans are reasonable and necessary.
The applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
4I find that the applicant’s late submission of the s. 25 assessment report did not prejudice the respondent and will be accepted into evidence.
5The respondent submits that the applicant underwent a s. 25 assessment on May 27, 2024, and provided Dr. Michael West’s report on June 3, 2024. However, she did not meet the 60-day production deadline outlined in the Case Conference Report and Order (“CCRO”) dated April 2, 2024, as the report was submitted 75 days after the case conference.
6In her reply submissions, the applicant acknowledged the delay in submitting the s. 25 assessment. She explained that coordinating evaluations within 60 days of a case conference is often challenging due to scheduling and availability constraints. Despite significant efforts, the complexity of the case and the expert’s limited availability led to a 14-day delay. The applicant submits that this delay had no adverse impact on the respondent. She further notes that the respondent did not schedule an independent medical examination under s. 44 and, therefore, did not actively participate in the assessment process. The applicant argues that, in light of the respondent’s inaction and lack of objection to the late report, the delay should not be viewed as prejudicial.
7The applicant submits that the respondent did not comply with Rule 20.4 of the Licence Appeal Tribunal Rules, 2023, which requires parties to submit a case conference summary at least 10 days before the conference. In this case, the respondent submitted its summary only 5 days before the case conference held on March 20, 2024. The applicant argues that, given the respondent’s own failure to adhere to procedural timelines, her late submission of the section 25 expert report should not be seen as significant or prejudicial. Essentially, she submits that both parties have deviated from procedural requirements. Therefore, her delay should not be considered detrimental.
8I agree that the applicant has filed her s.25 assessment after the deadline set by the CCRO. Furthermore, the respondent failed to file its case conference summary by the appropriate deadline prior to the case conference. However, in considering the respondent's request, I find that the respondent was not prejudiced by the late filing of the s.25 assessment report, and the respondent had sufficient time to respond to the applicant’s submissions.
9Accordingly, I am not excluding Dr. Michael West’s s.25 chronic pain report dated May 27, 2024, and I will take it into account alongside all the evidence presented to me.
ANALYSIS
Are the applicant’s injuries predominantly minor?
10I find that the applicant's injuries are predominantly minor, and therefore, she remains within the MIG.
11Section 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.”
12An 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.
13The applicant contends that the accident resulted in a range of physical and psychological impairments that place her outside the MIG and entitle her to further treatment and assessments.
14The applicant highlights multi-region sprains and strains, chronic pain, insomnia, anxiety, and a 2024 diagnosis of left-wrist inflammatory conditions to support her argument that the injuries exceed the MIG cap. She references Dr. Michael West’s report of May 27, 2024, which diagnosed myofascial strain of the cervical and thoracolumbar spine and recommended further treatment.
15The respondent asserts that the applicant sustained only soft-tissue injuries that resolved rapidly; that her ongoing complaints are unrelated or pre-existing; and that all disputed benefits should properly remain capped by the MIG. The respondent highlights significant pre-accident right-sided neck-to-hand pain and notes that there were no contemporaneous left-wrist complaints until February 2024. It also refers to the normal objective findings throughout all the applicant’s evidence and the applicant’s inability to meet the American Medical Association’s Guides (AMA) criteria for chronic pain.
16The burden of proof rests with the applicant, and her evidence must show that her post-accident impairments go beyond mere sprain and strain injuries or clinically associated sequelae.
17I find that the applicant did not demonstrate, on a balance of probabilities, that her impairments entitled her to be treated outside the MIG monetary limits, as she did not experience accident-related chronic pain or psychological impairments.
a) The applicant did not sustain chronic pain with functional impairments
18The clinical notes and records (“CNRs”) from Dr. Akram Baeshu, the applicant’s treating physician, spanning from October 30, 2018, to April 8, 2024, consistently describe the applicant as appearing well and generally healthy. Across multiple entries, the applicant reported intermittent pain. However, physical examinations repeatedly noted no midline spinal tenderness and normal range of motion (“ROM”) in both flexion and extension. The applicant was advised to manage symptoms with analgesics and was prescribed medications such as Flexeril and Tylenol. Notably, there is no diagnosis of chronic pain within the CNRs, nor is there any referral to a chronic pain specialist. Taken together, the records do not support the presence of injuries or impairments that would justify removal from the MIG.
19The CNRs from Georgetown Hospital, covering the period from October 30, 2021 to April 9, 2024, document persistent right-sided neck-to-hand pain both before and after the accident, but do not identify any associated functional limitations. On February 11, 2024, the applicant was diagnosed with atraumatic left wrist pain. The attending medical practitioner attributed this condition to the applicant’s prolonged computer use in her desk job, rather than to the motor vehicle accident. The diagnosis was wrist tendonitis, which is generally regarded as a minor injury. Based on the records, there is no indication that this condition is related to the accident.
20The applicant underwent a venous thrombosis Doppler of the left arm, showing no deep venous thrombosis. There was no fracture or malalignment, and the soft tissues appeared unremarkable. The applicant exhibited no muscle atrophy or erythema in her left hand. The neck ROM was full and painless; bilateral shoulder and elbow ranges of motion were also full without pain.
21To support her claim of chronic pain, the applicant relies on Dr. Michael West’s section 25 chronic pain assessment dated May 27, 2024. Dr. West diagnosed the applicant with myofascial strain of the cervical and thoracolumbar spine, as well as post-traumatic cervicogenic headaches, insomnia, fatigue, anxiety, stress with depressive episodes, and, notably, chronic pain syndrome.
22While this is the only report in the record that explicitly diagnoses the applicant with chronic pain, I assign it limited weight for several reasons.
23First, the assessment took place 941 days after the accident, which significantly diminishes its probative value in establishing a continuous or accident-related condition. This prolonged delay weakens the causal link between the accident and the applicant’s current symptoms. Over time, intervening factors can obscure the origin and continuity of the reported impairments.
24Second, Dr. West appears to be the only medical professional who conducted a section 25 chronic pain assessment. However, I afforded it limited weight because it relies heavily on the applicant’s subjective reports and is not corroborated by the contemporaneous CNRs. These records consistently describe the applicant as generally well, with normal spinal range of motion and no documented functional limitations. Moreover, the CNRs do not establish a clear pattern of ongoing pain complaints attributable to the accident.
25Finally, even accepting Dr. West’s diagnosis of myofascial strain, this condition would generally fall within the definition of a “strain” as outlined in the Minor Injury Guideline. The MIG defines minor injuries to include sprains, strains, whiplash-associated disorders, contusions, abrasions, lacerations, and subluxations, conditions typically involving soft tissue damage. A myofascial strain, which involves overstretching or tearing of muscle fibres and surrounding fascia, aligns with this definition and is generally managed within the MIG framework. Furthermore, the applicant has not presented any compelling evidence of functional impairment that would warrant removal from the MIG.
26Accordingly, I find that the applicant’s injuries fall within the MIG and that the evidence does not support an exception based on the reported diagnosis.
b) The applicant did not sustain psychological impairments
27The applicant relies on Dr. West’s s. 25 report, which indicates that she is experiencing non-musculoskeletal post-traumatic headaches, post-traumatic insomnia and fatigue, along with post-traumatic anxiety and stress, which are accompanied by depressive episodes.
28The respondent stated that Dr. West is an orthopaedic surgeon specializing in musculoskeletal injuries and is unable to diagnose the alleged psychological impairments. His opinion is grounded in a field of medicine where he lacks experience.
29I agree with the respondent that Dr. West, as an orthopaedic surgeon, generally lacks the specialized expertise to provide psychological opinions. While medical doctors, including family physicians, may sometimes diagnose psychological conditions within their scope of practice, such diagnoses typically fall outside the regular scope of an orthopaedic surgeon’s training and clinical focus. Diagnosing psychological impairments such as depression, anxiety, or PTSD is more appropriately within the domain of regulated health professionals with specific expertise in mental health, such as psychologists or psychiatrists.
30Additionally, I find that the applicant did not provide sufficient evidence of psychological impairments. The CNRs from her treating physicians do not document any psychological symptoms or concerns, and there is no indication that the applicant reported such symptoms during her post-accident medical visits prior to Dr. West’s assessment. While the respondent did not schedule a section 44 psychological assessment, it explained in its submissions that this decision was based on the absence of medical evidence suggesting the applicant’s injuries could potentially be more than minor. In the absence of contemporaneous psychological complaints or corroborating medical evidence, I am not persuaded that the applicant has established a psychological impairment related to the accident.
c) Conclusion
31After reviewing all the evidence, I am not convinced, on a balance of probabilities, that the applicant has experienced accident-related chronic pain or a psychological condition that significantly interferes with her daily activities.
32Accordingly, I conclude that the applicant’s injuries fall within the MIG and that she remains subject to the $3,500 cap.
Is the applicant entitled to the treatment plans?
33Since I have determined that the applicant has not established that her accident-related impairments require treatment beyond the MIG limits, it is unnecessary for me to evaluate the reasonableness and necessity of the disputed treatment plans.
Interest
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there is no benefit payable, interest does not apply.
Award
35The 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.
36The applicant contends that the respondent unlawfully withheld payments by disregarding the applicant's medical data. The respondent also did not conduct the s.44 examinations needed to evaluate injuries and restrictions. Despite compelling evidence, the respondent maintained MIG funding limits and missed opportunities to change its position. The applicant argued that this behaviour reveals inflexibility and bias against the applicant's medical evidence, resulting in denied treatment plans despite proof of injuries from the accident. Therefore, the respondent acted unreasonably and in bad faith, failing to uphold the obligation of good faith toward the applicant.
37The respondent argued that to grant an award, “the conduct must rise above being an incorrect decision and be ‘excessive, imprudent, stubborn, inflexible, unyielding or immoderate.’” It also stated that no medical or expert evidence justified the respondent’s classification of her injuries as non-MIG. Furthermore, the respondent noted that the applicant sought funding through her Sun Life health benefits, which were provided only after she submitted her written hearing materials.
38The respondent also noted that insurers can conduct Insurer Examinations (“IE”) to adjust claims, but they are not obligated to do so if it is unnecessary. Section 44 IEs are at the insurer's discretion. In the applicant’s case, IEs were deemed unnecessary due to insufficient evidence of significant injuries. The applicant must prove her case, and an IE is not required to demonstrate that the applicant is not impaired.
39The applicant must prove, on a balance of probabilities, that the respondent’s conduct was “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate to justify an award” under s. 10.
40While I acknowledge the applicant’s position, I agree with the respondent that the denials were based on medical evidence. Consequently, I find no evidence that the respondent has unreasonably withheld or delayed benefits. Therefore, the applicant is not entitled to an award.
ORDER
41For the above reasons, it is ordered that:
The applicant’s impairments are predominantly minor, and thus, the MIG limit applies.
As the applicant is subject to the MIG, it is not necessary to consider whether the disputed treatment plans are reasonable and necessary.
The applicant is not entitled to interest or an award.
Released: June 25, 2025
Harouna Saley Sidibé
Adjudicator