Licence Appeal Tribunal File Number: 23-012189/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:
Olivia Williams Applicant
and
Belair Insurance Company Inc. Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Doina Marinescu, Paralegal
For the Respondent: Thomas Petrella, Counsel
HEARD: By way of written submissions
OVERVIEW
1Olivia Williams, the applicant, was involved in an automobile accident on November 12, 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 Insurance Company Inc., and applied to the Licence Appeal Tribunal — Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
[2] The issues in dispute are: i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“MIG”) limit? ii. Is the applicant entitled to $2,486.00 for a psychological assessment proposed by Q Medical in a treatment plan/OCF-18 (“plan”) submitted August 23, 2021? iii. Is the applicant entitled to $2,486.00 for a chronic pain assessment proposed by Q Medical in a plan proposed January 11, 2022? iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is subject to the MIG.
4The applicant is not entitled to $2,486.00 for a psychological assessment.
5The applicant is not entitled to $2,486.00 for a chronic pain assessment.
6The applicant is not entitled to interest on overdue payments.
PROCEDURAL ISSUES
7In its submissions, the respondent asked for three pages of the applicant’s submissions to be excluded in accordance with the page limits set in the CCRO. The respondent has not made submissions on prejudice caused by the additional pages in the applicant’s submissions. The applicant submitted thirteen pages and the respondent argues the three pages in excess of the 10-page limit should be disregarded. The applicant provided no reply submissions to address why her submissions were over the page limit.
8I find the applicant would suffer significant prejudice if her submissions were excluded for the purposes of this hearing, as the evidentiary onus rests with her to demonstrate that her injuries are not predominantly minor injuries subject to treatment within the MIG and that the proposed OCF-18s are reasonable and necessary. I see no prejudice to the respondent, which had the opportunity to review and respond to the applicant’s submissions.
9I decline to grant the respondent’s request.
ANALYSIS
Application of the Minor Injury Guideline
10I find the applicant’s injuries are predominantly minor injuries subject to treatment 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.”
12The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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 submits she has chronic pain in her right knee and ankle, left ankle, right shoulder, lower back and neck and psychosocial distress associated with pain such as sadness, anxiety, memory, and concentration challenges as a result of the accident. The applicant submits these issues prevent maximal recovery if she is kept within the MIG.
14The respondent submits the applicant sustained uncomplicated soft tissue sprain/strain injuries that are predominantly minor. The respondent argues the applicant has not met her burden of proof with regard to how the treatment plans in dispute are reasonable and necessary.
Does the applicant have chronic pain with functional impairment?
15I find, on a balance of probabilities, that the applicant does not have chronic pain with a functional impairment that would remove her from the MIG.
16The applicant submits that she has developed ongoing pain in her ankle and intermittent pain in her lower back, hip, buttocks, and shoulders aligned with symptoms associated with chronic pain syndrome. The applicant relies on the clinical notes and records (“CNRs”) from Lifemark and her family doctor, the s. 44 psychological assessment report prepared by Dr. Marc Mandel dated October 21, 2021, and the s. 25 independent chronic pain assessment report prepared by Dr. Jaclyn Herman, medical doctor, dated May 11, 2022.
17Dr. Herman noted in the s. 25 chronic pain report that the applicant’s neck, bilateral shoulder, hip, and buttocks pain was rated 6-7 out of 10 on the Pain Analogue Scale and her left ankle and foot pain was rated 7-8 out of 10 on the same scale. Dr. Herman concluded the applicant met three criteria for chronic pain syndrome based on the 6th Edition of the Guides to the Evaluation of Permanent Impairment (Guide to the Evaluation of Permanent Impairment, 2008) (the “Guides”), including secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain; withdrawal from social milieu, including work, recreation, or other social contacts; and 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.
18The respondent submits the applicant sustained myofascial strain of the cervical spine, bilateral shoulders, lumbosacral spine and left lower extremity. The respondent argues there were no objective findings to support the applicant’s hip pain complaints and the applicant did not demonstrate the necessary criteria for chronic pain in accordance with the Guides. The respondent relies on the s. 44 independent physician assessment report prepared by Dr. David Mula, physician, dated February 25, 2022.
19I find the family doctor’s CNRs do not support the applicant’s position that she developed chronic pain or chronic pain syndrome. Since the accident, the applicant met with her doctor three times over six months. During this time the applicant was noted to suffer soft tissue and musculoskeletal injuries and was prescribed physiotherapy and massage therapy. The applicant did not see her family doctor again until December 2021 and she did not provide an explanation for this six-month gap. The doctor noted “she reinjured her left ankle” and made reference to a car accident “2 years ago” and not her accident of November 2020. During the time period of December 2021 to February 2022 the applicant again went for X-rays and ultrasound testing and Dr. Bartholomew Kwan, radiologist, with Brampton Civic Hospital noted “fall two weeks ago” and “soft tissue normal”. After the X-ray and ultrasound tests the doctor noted “left ankle strain”. In my opinion, this distinction is significant, and this weakens the applicant’s claims of alleged chronic pain or functional impairment resulting from her accident-related soft tissue injuries.
[20] I will now consider Dr. Herman’s conclusion that the applicant meets three of the criteria outlined in the Guides. While the Guides provide a comprehensive framework, they are not incorporated in the Schedule or binding on this Tribunal. The criteria from the Guides are helpful in establishing whether someone suffers from chronic pain. The criteria from the Guides are: i. Use of prescription drugs beyond the recommended duration and/or abuse 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 contacts; 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; and vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
21I am alive to the applicant’s position that she meets criteria (iii), (iv), and (v), however, I find that she has not directed me to sufficient evidence to support these claims.
22First, to address criterion (iii) of the Guides, I acknowledge her complaints of December 14, 2021 to her family doctor of not being to go for long walks since the accident, however, this was thirteen months after the accident and the doctor noted a “reinjury” to her ankle. Based on the evidence, I am not satisfied that her ongoing inability to go on long walks is caused by the accident. Furthermore, Dr. Herman’s report did not address the reason for the six months gap in reporting issues to her family doctor.
23Second, to address criterion (iv), Dr. Herman noted the applicant was previously active socially, enjoyed spending time with friends and going out. Since the accident she “no longer enjoys these activities due to fear and pain”. The applicant did not direct me to evidence in Dr. Herman’s report or outside of the report that would support this conclusion. Nonetheless, I have reviewed the family doctor’s CNRs and aside from her single instance of self-reporting on March 15, 2021 that she “has been sedentary since her accident”, in my opinion, she does not meet the threshold to support her position. Neither Dr. Herman, nor her family doctor, have opined that the applicant has an ongoing functional impairment as a result of the accident. I place less weight on the conclusion that she leads a sedentary life since her accident because the rest of the report does not support this conclusion.
24Third, to address criteria (v), Dr. Herman opined the applicant “has suffered an impairment of physiological functions”, she experiences constant fatigue, pain aggravation and frustration at times because of the pain. Dr. Herman noted the applicant continues to have difficulty walking and suffers “deconditioning due to … fear-avoidance of physical activity due to pain”. The applicant does not need to establish that she has a diagnosis in order to meet this criterion, and the described symptoms, which are triggered by pain, is sufficient.
25I find, at best, the applicant meets criteria (v). However, to establish a diagnosis of chronic pain in accordance with the Guides, the applicant has to meet at least three criteria. I am not persuaded that she has established meeting at least three of the criteria and therefore she has not established that she has chronic pain and a functional impairment that would warrant removal from the MIG.
26Regarding the applicant’s pain and physiological functions, Dr. David Mula, physician, noted in his s. 44 physician assessment report that the applicant complained of neck, bilateral shoulder, hip, and left leg and knee pain rated at 4 or 5 out of 10 on the Visual Analogue Scale and her left foot pain and lower back pain were rated as 8-9 out of 10 on the same scale. Dr. Mula’s report indicated the applicant “sustained a minor injury as a result of the accident” and noted the applicant’s independence in her self-care routines and with a decreased ability to walk. With regard to Guides, Dr. Mula noted criterion (i) the applicant is not taking analgesic medication, criterion (ii) is not excessively dependent on health care providers or family, and criterion (iii) does not appear to have secondary physical deconditioning.
27I assign greater weight to Dr. Mula’s reports dated February 25, 2022 and December 2022 that suggest the applicant’s pain is not accident-related because the reports are supported by MRI and the ultrasounds of her ankle. Additionally, her symptoms are consistent with the family doctor’s CNRS of February 22, 2022 that noted she has “mild tendinopathy” without reference to the accident fifteen months earlier. The applicant has not directed me to a functional impairment or compelling evidence of meeting at least three of the six criteria from the Guide for chronic pain syndrome.
28I do not find the applicant has met her onus to prove accident-related chronic pain with a functional impairment.
Does the applicant have a psychological impairment that warrants removal from the MIG?
29I find the applicant has not met her burden to prove that she suffers from a psychological impairment that would warrant removal from the MIG.
30The applicant submits that she suffered emotional and cognitive impairment following the accident including fatigue, stress, emotional exhaustion and undiagnosed depression or anxiety. The applicant relies on the CNRs of physiotherapists and massage therapists with Lifemark North Bramalea, the s. 44 psychological assessment report dated October 21, 2021, prepared by Dr. Marc Mandel, psychologist, and the s. 25 chronic pain assessment prepared by Dr. Herman.
31The applicant submits she suffers gradual psychological impacts or undiagnosed depression or anxiety and relies on Dr. Mandel’s s. 44 report where it is noted the applicant has moments of sadness and she is easily fatigued.
32The respondent submits the applicant’s accident-related injuries are soft-tissue injuries and predominantly minor that are treatable within the MIG and relies on Dr. Mandel’s report and the applicant’s injuries are treatable within the MIG.
33I find Dr. Herman’s s. 25 chronic pain assessment provides limited insight into the applicant’s psychological impairments because the applicant did not direct me to any psychological testing to support the findings in the report. It is unclear to me how Dr. Herman arrived at the diagnosis, and it is unsupported by other contemporaneous medical evidence, such as a lack of complaints to the family doctor.
34I place less weight on the CNRs of Lifemark North Bramalea because the assessments and notes were completed by various physiotherapists and massage therapists that are not qualified to make psychological diagnoses. While the CNRs for the period of November 2020 to July 2021 show the applicant’s accident-related pain was improving steadily, I was not referred to any psychometric testing. Overall, the applicant was noted to have “felt much better than before” in May and June 2021.
35I assign greater weight to Dr. Mandel’s s. 44 psychology report because it includes the results of objective psychometric testing and is consistent with the CNRs of the family doctor. The report noted the applicant is mainly feeling “normal to good” and denied any persistent feelings of feeling down and sad, noted no diminished interest, and no impairments related to memory or concentration. The report included a summary of the psychometric testing that was administered including Personality Assessment Inventory (PAI), Multidimensional Pain Inventory (MPI), Structured Inventory of Malingered Symptoms (SIMS). Dr. Mandel found that “there is no consistent objective or subjective information provided to indicate that services are required beyond what is available within the Minor Injury Guideline from a psychological perspective.”
36I find on a balance of probabilities that the applicant has not met her burden to establish that she has a psychological impairment as a result of the accident.
Are the treatment plans reasonable and necessary?
37Having found that the applicant is subject to the MIG and the $3,500.00 funding limit for treatment, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.
ORDER
39The applicant is subject to the MIG.
40As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
41As there are no overdue benefits, the applicant is not entitled to interest.
42The application is dismissed.
Released: July 23, 2025
Aric Bhargava Adjudicator