Licence Appeal Tribunal File Number: 23-010929/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:
Eric Imoagene
Applicant
and
Peel Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Fayola Benjamin, Counsel
For the Respondent:
Evan Argentino, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Eric Imoagene, the applicant, was involved in an automobile accident on July 15, 2022, 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, Peel Mutual 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:
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 Princeton Hills Medical Assessments, as follows:
$2,536.34 for an orthopaedic assessment, in an OCF-18/treatment plan (treatment plan) dated August 25, 2022;
$2,276.34 for a chronic pain assessment, in a treatment plan dated June 16, 2023;
$2,200.00 for an attendant care assessment, in a treatment plan dated June 16, 2023;
$2,200.00 for psychological assessment, in a treatment plan dated June 16, 2023; and
$3,692.40 for psychological services, in a treatment plan dated April 6, 2023?
iii. Is the applicant entitled to the treatments proposed by Mackenzie Medical, as follows:
$3,622.73 for physiotherapy services, in a treatment plan dated July 20, 2022;
$2,023.03 for physiotherapy services, in a treatment plan dated February 10, 2023;
$1,525.84 for physiotherapy services, in a treatment plan dated March 24, 2023; and
$1,525.84 for physiotherapy services, in a treatment plan dated July 4, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG.
4As the applicant remains in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
5No interest is owing.
ANALYSIS
Minor Injury Guideline (MIG)
6Section 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.”
7An 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.
8The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG. Here, the applicant submits that he should be removed from the MIG on the basis of chronic pain and a psychological impairment.
Chronic Pain with a functional impairment
9The 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.
10The 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. Atto, the CNRs of Dr. Siddiqui from the Releva Chronic Pain Centre, and submits that he meets the definition of chronic pain as set out in the American Medical Association (AMA) Guidelines because he meets at least three of the six criteria.
11I find that the CNRs of Dr. Atto do not support the applicant’s claim that he suffers from chronic pain with a functional impairment. Dr. Atto does mention chronic pain in the CNRs, but he does not diagnosis the applicant with it. Dr. Atto referred the applicant to a chronic pain clinic for diagnosis. The CNRs of Dr. Atto also do not capture ongoing functional impairments that the applicant suffers as a result of the accident. Further, the reporting of pain in the applicant’s back post accident appears consistent with the complaints of back pain pre accident. The complaints of knee pain are not attributed to the subject accident in the CNRs of Dr. Atto and the initial reporting of left knee pain is reported as resolved in the CNR of September 30, 2022. Additionally, there is no discussion in the CNRs that demonstrated any functional impairments suffered by the applicant.
12I find that the CNRs of Dr. Siddiqui also do not support the applicant’s claim that he suffers from chronic pain with a functional impairment. Dr. Siddiqui indicated that his physical assessment of the applicant on May 15, 2023 showed unremarkable results. Dr. Siddiqui’s impression of the applicant was sprain/strain type injuries and some myofascial pain. Dr. Siddiqui suggested several types of treatment options, and provided the applicant with links to OHIP-funded physiotherapy clinics and cognitive behavioural therapy clinics. In his follow up note with the applicant from July 31, 2023, Dr. Siddiqui reports that the applicant was improved in all dimensions of review including functional mobility, self care, social activities, work/daily functioning, mood, and sleep.
13The respondent argues that the applicant has not proven that the injuries suffered in relation to the subject accident are more than minor in nature. It relies on surveillance collected by King International Advisory Group Inc. over multiple surveillance sessions in December 2022, March 2023, and March and April 2024.
14I find that the surveillance data gathered by King International Advisory Group Inc. undermines the applicant’s claim that he suffers from chronic pain with a functional impairment. The surveillance shows the applicant carrying on normal functioning, including walking, driving, shopping, carrying bags, bending, going to work and the gym with no indication that he suffers any functional impairment as a result of his pain.
15The applicant also argues that he meets three of the six criteria in the AMA Guides.
16The Guides are not incorporated into the Schedule, but the Tribunal has found them to be a useful analytical tool for evaluating chronic pain claims in the absence of a diagnosis. The AMA Guides require three of the below criteria to be met for a diagnosis of chronic pain:
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 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 need; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
17The applicant argues that he meets the first, fifth and sixth criteria because, he continues to use analgesic medication more than two years post accident, such as Tylenol, Naprosyn, Duloxetine, and Trazadone. Additionally, he was off work after the accident until March 2024, and he has developed psychological impairments as a result of the accident.
18I find the evidence does not support a finding that the applicant meets the first criteria. The CNRs of Dr. Atto do not indicate that the applicant has used prescription drugs beyond the recommended duration or that he has an abuse/dependency on prescription drugs. As the applicant has not met the first criteria, the applicant has not established that he meets three of six criteria required to establish chronic pain.
19I find that the 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. The CNRs of Dr. Atto and Dr. Siddiqui do not refer to any functional impairment suffered by the applicant. This is corroborated by the surveillance data from King International Advisory Group Inc. which shows the applicant functioning normally and not displaying any functional impairments. Finally, the applicant argued that he suffers from chronic pain based on the AMA Guides criteria, but he has not established that he meets at least three of the six criteria.
20The applicant is not removed from the MIG on the basis of chronic pain with a functional impairment.
Psychological impairment
21The applicant has not proven on a balance of probabilities that he suffers from a psychological impairment as a result of the subject accident.
22The applicant submits that he suffers from a psychological condition as a result of the subject accident. The applicant relies on a psychological assessment report from April 6, 2023, completed by Dr. Kershner, psychiatrist.
23I place little weight on the psychological assessment report by Dr. Kershner. In the report, Dr. Kershner concludes that the applicant suffers from adjustment disorder and cognitive disorder as a result of the accident. In reviewing contents of the report, there are several items reported by the applicant that I find are not supported by other evidence submitted. For example, the applicant reports spending most of his time in bed and gaining weight because he cannot work out. These claims do not agree with the surveillance data which shows the applicant out doing shopping, carry bags, walking, driving and working out. Further, the applicant reported to Dr. Atto two months after the accident that he had returned to the gym.
24Additionally, Dr. Kershner’s opinion that the applicant has a psychological impairment as a result of the accident is not supported by the CNRs of Dr. Atto. In the CNRs of Dr. Atto, the applicant relates his depression to the fact that he was charged with reckless driving. The CNRs of Dr. Atto do not capture any further psychological complaints by the applicant. Additionally, Dr. Kershner attributes the applicant’s sleep issues to the subject accident, but I find that this is also contradicted by the CNRs of Dr. Atto that note the applicant’s sleep issues are related to his caffeine consumption. Dr. Atto does not attribute any sleep issue to the subject accident.
25I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological condition as a result of the subject accident. The assessments by Dr. Kershner are inconsistent with the preponderance of medical evidence, and Dr. Kershner does not attribute any weight in her diagnosis to pre-existing PTSD reported by the applicant, or the charge of reckless driving to the diagnosis of the applicant.
26As such, the applicant has not established that his accident-related impairments warrant removal from the MIG.
27As the applicant has been found to remain in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans because the MIG limits are exhausted.
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.
ORDER
29I 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 application is dismissed.
Released: July 23, 2025
Robert Rock
Adjudicator