Cabasan v. Economical Insurance Company, 2025 CanLII 61178

Citation: Cabasan v. Economical Insurance Company, 2025 ONLAT 23-009043/AABS

Licence Appeal Tribunal File Number: 23-009043/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:

Rudjovenic Cabasan

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Nathan Prince

APPEARANCES:

For the Applicant: Karl Girdhari, Counsel

For the Respondent: Jeremy Hanigan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rudjovenic Cabasan, the applicant, was involved in an automobile accident on February 18, 2019, 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 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 limit (“MIG”)? Note: The parties agree the MIG limits have been exhausted.
2. Is the applicant entitled to $9,105.80 for chronic pain treatment, proposed by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated October 18?
3. Is the applicant entitled to $4,639.25 for physical therapy services proposed by Mackenzie Medical Rehabilitation Centre Inc. in a treatment plan dated May 27, 2021?
4. Is the applicant entitled to the assessments proposed by Oshawa Physiotherapy and Rehabilitation Centre, as follows: i. $2,200.00 for a psychological assessment, in a treatment plan dated June 17, 2021; ii. $2,200.00 for a chronic pain assessment in a treatment plan dated June 1, 2023; and iii. $2,200.00 for an orthopaedic assessment in a treatment plan dated June 22, 2021?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is removed from the MIG.

4The applicant is not entitled to the plans in dispute.

5As there are no benefits payable, the applicant is not entitled to interest or an award.

ANALYSIS

The applicant is removed from the MIG

6I find the applicant has demonstrated on a balance of probabilities that he should be removed from the MIG.

7Section 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.”

8An 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.

9The applicant submits that he should be removed from the MIG based on his chronic pain and relies on the OCF-3 completed by Dr. Jennifer Violante, chiropractor; the clinical notes and records (“CNRs”) of his family doctor, Dr. CP Chang; the CNRs of Scarborough West Physiotherapy and Rehabilitation Centre (“SWPARC”); the CNRs of Dr. J. Chen, chronic pain doctor; and a section 25 chronic pain report completed by Dr. Atiemo Kessie, pain specialist.

10The respondent submits that the applicant does not suffer chronic pain with functional impairment that would remove him from the MIG. It relies on the section 44 reports of Dr. Ahmad Belfon, family medicine doctor, and Dr. Rod Day, psychologist.

11I find that there is sufficient evidence to establish that the applicant suffers from chronic pain with functional impairment. In the year after the accident, there are numerous entries in the CNRs of Dr. Chang which reference ongoing pain in the applicant’s neck, back, and shoulder. As a result of the applicant’s ongoing pain, Dr. Chang referred the applicant to Dr. Chen on March 4, 2020. The CNRs of Dr. Chen, which were provided up to February 2, 2024, echo the findings of ongoing pain noted in Dr. Chang’s CNRs. Dr. Chen administered pain injections on a biweekly basis to assist in relieving the applicant’s ongoing pain. Despite this treatment, the applicant continued to report ongoing back, neck, and shoulder pain to both Dr. Chen and Dr. Chang. I am persuaded by the CNRs of Dr. Chen and Dr. Chang because they show consistent reporting of pain in the four-year period post-accident.

12The applicant further relies on a section 25 chronic pain assessment conducted by Dr. Kessie on September 12, 2023. Dr. Kessie reviewed the applicant’s medical file in addition to conducting a physical examination of the applicant which revealed range of motion restrictions and tenderness in the cervical and lumbar spine. Dr. Kessie opined that the applicant had sustained strain/sprain injuries of the cervical, thoracic, and lumbosacral spine and found that the applicant met the criteria for chronic pain syndrome.

13In addition to Dr. Kessie’s diagnosis, I find the applicant’s submissions that he suffers from chronic pain with functional impairment is further bolstered by the fact that he meets the chronic pain criteria outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”). The AMA Guides list six criteria for assessing chronic pain claims. I am not bound by the AMA Guides; however, the Tribunal has held that the AMA Guides can be a useful tool for the evaluation of chronic pain. To support a diagnosis of chronic pain under the AMA Guides, the applicant must meet at least three of the following six criteria:

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.

14The report of Dr. Kessie found that the applicant met criteria iii, iv, and v of the AMA Guides. Dr. Kessie’s report notes the applicant reported that, due to his ongoing pain, he no longer participates in many of his pre-accident recreational activities, including going for walks, spending time outdoors with his children, going to the gym, playing sports such as basketball, and socializing with family and friends. In addition, the report also states that the applicant has experienced a decrease in many of his activities of daily living including laundry, cleaning, cooking, or vacuuming. While he still attempts to complete these activities, he is unable to do so as frequently or as thoroughly as pre-accident, and experiences severe pain following completion of these tasks. I find Dr. Kessie’s report to be persuasive as there is consistent reporting of limitations by the applicant to various assessors. For example, the applicant similarly reported to Dr. Day that his pain prevented him from engaging in activities that he previously enjoyed such as playing basketball and going to the gym. Furthermore, Dr. Kessie’s findings are supported by his objective testing of the applicant which showed limited range of motion in the cervical and lumbar spine.

15The respondent submits that the applicant does not meet criteria iii, iv, and v. It relies on the fact that the applicant continues to work 60 hours per week in two jobs which require physical and cognitive effort. While I acknowledge that the applicant continues to work on a full-time basis, I find that the applicant continues to have limitations in other spheres of his life including recreational and social activities, as noted above.

16The respondent further submits that the applicant has not experienced any physical deconditioning as evidenced by his ability to continue working a physically demanding job on a full-time basis. Again, this is only part of the test under criteria iii which also requires me to consider fear-avoidance of physical activity due to pain which I find the applicant reported to Dr. Kessie and Dr. Day during his assessments.

17Finally, the respondent suggests that the applicant has not withdrawn from social milieu because he organized a birthday party for his daughter. I am not persuaded by this argument. The planning of a birthday party and withdrawal from social milieu are not mutually exclusive. I find that the applicant could have organized his daughter’s birthday party while at the same time being limited from many other social events as mentioned above.

18As such, I find that Dr. Kessie’s diagnosis coupled with meeting the criteria for chronic pain under the AMA Guides is sufficiently persuasive to conclude, on a balance of probabilities, that the applicant suffers from chronic pain with a functional impairment sufficient to warrant removal from the MIG.

The applicant is not entitled to the plans in dispute

19I find that the applicant has not met his onus of demonstrating that the plans in dispute are reasonable and necessary.

20To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

21The applicant did not make submissions regarding the individual plans in dispute. His submissions on the plans are sparse and indicate that “the medical benefits and cost of examination in dispute in the total amount of $20,345.05 are for pain reduction, increased range of motion, increase in strength, to prevent pain from controlling activities of daily living and lifestyle, and return to activities of normal living. These are legitimate goals for Mr. Cabasan's impairments that are ongoing.”

22While I acknowledge that the applicant suffers from ongoing pain, and I have removed him from the MIG on that basis, I have no basis upon which to find that the plans in dispute are reasonable and necessary. The applicant did not submit any OCF-18s with his submissions nor do his submissions address what the plans were comprised of. Without this pertinent information, I am left in the dark with respect to the benefits being sought or what evidence the applicant relies on to establish that the plans are reasonable and necessary.

23Based on the foregoing, I find on a balance of probabilities that the applicant has not met his onus of demonstrating that the plans in dispute are reasonable and necessary.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

25As the applicant is not entitled to any of the benefits in dispute, there is no interest owing.

Award

26The 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.

27As I have found that the applicant is not entitled to any of the benefits in dispute, there is no basis for an award under s. 10 of Reg. 664.

ORDER

28For the reasons outlined above, I find:

i. The applicant is removed from the MIG; ii. The applicant is not entitled to the plans in dispute; and iii. As there are no benefits payable, the applicant is not entitled to interest or an award.

Released: June 25, 2025

__________________________

Nathan Prince Adjudicator