Licence Appeal Tribunal File Number: 23-008076/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:
Toby Landzberg
Applicant
And
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Andrea Reid
APPEARANCES:
For the Applicant:
Hufriz Turel, Counsel
For the Respondent:
Michael Rattray, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Toby Landzberg, the applicant, was involved in an automobile accident on March 2, 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, TD 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 30, 2021, to March 2, 2023?
iii. Is the applicant entitled to $28.10 ($1,328.10 less $1,300.00 approved) for physiotherapy services proposed by Healthcare Management Group in a treatment plan/OCF-18 (“plan”) dated September 23, 2021?
iv. Is the applicant entitled to $2,869.48 for chiropractic services, proposed by Healthcare Management Group in a plan dated February 17, 2022?
v. Is the applicant entitled to $2,869.48 for physiotherapy services, proposed by Healthcare Management Group in a plan dated February 17, 2022?
vi. Is the applicant entitled $2,200.00 for a chronic pain assessment, proposed by Healthcare Management Group in a plan dated January 17, 2022?
vii. Is the applicant entitled to interest on any overdue payments of benefits?
RESULT
3I find:
i. The applicant should be removed from the MIG.
ii. The applicant is entitled to a chronic pain assessment;
iii. The applicant is entitled to the treatment plans for physiotherapy services dated September 23, 2021, as well as those for chiropractic and physiotherapy services dated February 17, 2022;
iv. The applicant is not entitled to non-earner benefits; and
v. Interest is owed on the treatment plans in accordance with s. 51.
4The applicant is granted in part.
ANALYSIS
Minor Injury Guideline – The applicant is removed from the MIG
5I find that the applicant has met her onus to prove that her accident-related impairments warrant removal from the 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 sprain, strain, whiplash associated disorder, contusion, abrasion, laceration of 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 documents 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 applicant submits removal from the MIG is warranted for three reasons:
i. The applicant had a pre-existing medical condition to her left shoulder which was exacerbated by the subject accident;
ii. The applicant developed and was diagnosed with chronic pain syndrome as a result of accident-related injuries and associated ongoing pain; and
iii. The applicant developed accident-related psychological impairments that are not captured within the definition of the MIG and therefore, not considered minor.
Pre-existing Condition
9The applicant submits she has pre-existing medical conditions of bilateral spondylolisthesis, central disc protrusion, left shoulder rotator cuff tendinopathy and bilateral foraminal stenosis in her lumbar spine. She states that pre-accident these conditions were well managed and did not prevent her from leading a normal life. The applicant argues that, following the accident, her pre-existing medical conditions, particularly involving her left shoulders, were exacerbated, resulting in increased pain that prevents her from leading a normal life. She primarily relies on medical records from her family physician, Dr. Mandy Schwartz; Rheumatologist, Dr. Sharon Koren; Physiatrist, Dr. Borna Kavousi; and Orthopaedic Surgeon, Dr. Cheng to support her position that her pre-existing condition precludes recovery if she is kept within the confines of the MIG.
10The respondent argues that the applicant failed to provide any compelling evidence of a pre-existing condition that would remove her from the MIG. The respondent submits the medical records and imaging reflect degenerative changes and make no reference to any trauma. The respondent relies on the orthopaedic assessment conducted by Orthopaedic Surgeon, Dr. Jamie Rusen, and the family medicine assessment conducted by general practitioner, Dr. Maria Nesterenko, as well as clinical notes and records from the applicant’s family physician, Dr. Schwartz, to support its position that there is no compelling medical evidence commenting on the applicant’s ability to recover under the MIG. The respondent did not comment on the whether the applicant should be removed from the MIG based on chronic pain with functional impairment or a psychological condition.
11I agree with the respondent that the post-accident clinical records and records provided in the applicant’s submissions do not directly comment on the applicant’s ability to recover under the MIG. Further, imaging conducted after the subject accident on April 28, 2021, does not make any reference to the collision or any associated trauma. Imaging obtained in May of 2022 was consistent with previous findings, again, with no reference to the subject accident or affiliated trauma.
12For these reasons, I find that the applicant has not met her onus in demonstrating that her pre-existing condition necessitates treatment beyond the limits set by the MIG because she has not provided evidence to support the second prong of the test under s. 18(2) that she has 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 applicant has established that she suffers from chronic pain warranting.
removal from the MIG
13However, I find that the applicant has established, on a balance of probabilities, that she suffers from chronic pain with a functional impairment warranting removal from the MIG.
14The applicant submits that she has chronic pain with functional impairments. She relies on the clinical notes and records of Dr. Schwartz which document her ongoing pain complaints post accident and referrals to specialists including Orthopaedic Surgeon, Dr. Rusen; Orthopaedic Surgeon, Dr. Cheng; and Physiatrist, Dr. Kovausi. The applicant also relies upon the Chronic Pain Assessment conducted by Dr. Kevin Rod, pain management specialist, on November 20, 2023, to support her position that she suffers from chronic pain with a functional impairment which warrants removal from the MIG.
15Dr. Rod diagnosed the applicant with chronic pain syndrome including but not limited to Chronic Shoulder Pain/Strain, Chronic Cervical Pain Strain, Chronic Sleep Disturbances and Chronic Arm Pain/Strain. He opined that “the diagnostic conditions and their severity are consistent with the mechanism of the accident.” Further, Dr. Rod provided a detailed description of the applicant’s functional impairments, such as walking or sitting for extended periods and performing household chores that exacerbate her pain. He noted that the applicant’s sleep is frequently disturbed by pain and her mood is affected by her condition, leaving her tired and unable to engage in desired activities. Dr. Rod also noted that the applicant would benefit from ongoing physical therapy, massage therapy, psychological therapy, and other treatment modalities.
16The applicant submits that the respondent has relied upon outdated Insurer’s Examination (IE) reports from 2022 and has not reassessed the applicant when new medical records were provided over the years.
17As noted above, the respondent did not comment on chronic pain in is submissions.
18I am persuaded by the applicant’s submissions that she suffers from chronic pain with a functional impairment. In reaching my conclusion, I have placed significant weight on Dr. Rod’s assessment/diagnosis as well as the clinical notes and records of Dr. Schwartz. As mentioned above, Dr. Rod found several functional impairments impacting the applicant post accident. Further, he recommended ongoing treatments that would fall beyond the MIG limits. The records of Dr. Schwartz reflect the applicant’s complaints of pain recorded eight days post-accident and ongoing to date despite compliance with prescription pain medications, physical therapy, steroid injections.
19Based on the evidence and submissions before me, I find that the applicant has established on a balance of probabilities that she suffers from chronic pain with a functional impairment as a result of the subject accident warranting removal from the MIG.
20Since I have determined that the applicant’s impairments fall outside the MIG due to chronic pain it is not necessary to separately assess whether her impairments remove her from the MIG on the basis of a psychological condition.
The treatment plan for a chronic pain assessment is reasonable and necessary
21I find that the applicant has met her onus to establish that the proposed chronic pain assessment is reasonable and necessary.
22To receive payment for a treatment and assessment plan under s. 15 and s. 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.
23The applicant submits that the medical evidence establishes that she suffered from functional restrictions post accident impairing her ability to perform activities of daily living, such referenced above. She further submits that the chronic pain assessment report by Dr. Rod recommends multidisciplinary rehabilitation therapy. He noted that given the state of the applicant’s chronic pain syndrome and her age, her prognosis is “guarded.”
24The respondent argues that the applicant has failed to establish that this treatment plan identifies reasonable treatment goals that were being met to a reasonable degree and that the costs of achieving these goals were reasonable. The respondent further argues that there may be a conflict of interest as Healthcare Management Group provided and submitted the treatment and assessment of the applicant that are in dispute, which had not been recommended by the applicant’s primary physician.
25I disagree with the respondent. While the applicant may have sought treatment at Healthcare Management Group on her own accord, she was assessed by Chiropractor, Shahin Nejad, a licensed healthcare practitioner whose expertise is within the scope of the treatment plans he recommended for the applicant’s recovery. I see no conflict of interest in an applicant seeking additional treatment from a credible provider.
26Further, the purpose of an assessment is to determine whether a condition exists. The insured bears the onus to demonstrate there are reasonable grounds and supporting medical evidence on which to believe that a condition exists that would warrant further investigation by way of an assessment.
27I find that the applicant has met her onus to prove that the proposed chronic pain assessment is reasonable and necessary based on my finding that the applicant should be removed from the MIG based on chronic pain. The applicant relied upon clinical notes and records from various healthcare providers who found that her pain increased despite pharmacological and other treatment interventions. Additionally, the report by Dr. Rod confirmed the applicant’s functional impairments that impact her activities of daily living, persisting for more than two years post accident.
28I find on a balance of probabilities that the chronic pain assessment is reasonable and necessary.
The treatment plans for chiropractic services and physiotherapy services are reasonable and necessary.
29I find that the applicant has met her onus to demonstrate that the treatment plans in dispute are reasonable and necessary. These include:
i. $28.10 ($1,328.10 less $1,300.00 approved) for physiotherapy services proposed by Healthcare Management Group in a treatment plan/OCF-18 (“plan”) dated September 23, 2021;
ii. $2,869.48 for chiropractic services, proposed by Healthcare Management Group in a plan dated February 17, 2022; and
iii. $2,869.48 for physiotherapy services, proposed by Healthcare Management Group in a plan dated February 17, 2022?
30The arguments put forth by the applicant and those made by the respondent against this treatment plan are the same as those discussed above for the chronic pain assessment. The applicant did point to additional clinical notes and records from chiropractor Dr. Shahin Nejad of Healthcare management Group in support of these plans being reasonable and necessary.
31Between April 16, 2021, and November 16, 2022, the applicant attended over sixty treatment sessions at Healthcare Management Group. The majority of Dr. Nejad’s notes state the applicant indicated a mid-to high level of pain severity upon arrival and felt the “same” or “better” each treatment, which I find support the plan and objectives for each session including decreased pain and increased mobility/function. Lastly, the notes show that the applicant achieved a higher percentage improvement with treatment over the course of all treatment sessions, which I find indicate the applicant continues to benefit from ongoing therapy.
32I am persuaded by this evidence. It demonstrates that the applicant is a highly compliant patient who benefits from treatment. Further, it shows that the applicant has established that the identified treatment goals of pain relief/management and increased mobility are reasonable. I find that pain relief is a legitimate goal and is being met to a reasonable degree based on the applicant’s steady improvement. Further, I find the overall cost of achieving these goals is reasonable taking into consideration both the degree of success and the availability of other treatment alternatives.
33The disputed treatment plans were denied based the respondent’s finding that the applicant’s accident-related impairments fell within the MIG and therefore, she was not entitled to treatment beyond MIG limits. As discussed previously, I have concluded that the applicant suffers from chronic pain with a functional impairment warranting removal from the MIG.
34Further, I placed significant weight on Dr. Rod’s recommendation for ongoing physical therapy, massage therapy, psychological therapy, and other treatment modalities to support the reasonableness and necessity for these treatment plans.
35For these reasons, I find on a balance of probabilities that the applicant has met her onus to demonstrate that the disputed treatment plans for physiotherapy and chiropractic services are reasonable and necessary.
The applicant is not entitled to non-earner benefits
36The applicant has not met her onus to prove that she is entitled to non-earner benefits (“NEB”).
37Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured personal suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
38The applicant submits that she suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. The applicant asserts that prior to the subject accident, she enjoyed an active lifestyle centred around social and recreational activities with her family and friends. The applicant further submits that post accident, her lifestyle has become markedly more sedentary, she avoids social interactions and that her injuries inhibit her daily functions and preclude her from returning to her pre-accident health status.
39The respondent submits that the applicant fails to meet the test under s. 12 of the Schedule for eligibility to NEB because she has not demonstrated a complete inability to carry on a normal life as a result of the accident. The respondent relies on the section 44 multidisciplinary assessment report completed by Occupational Therapist, Dr. Rod Pritchett, Psychologist Dr. Arnold Rubenstein and General Practitioner Dr. Zahra Bardai dated December 3, 2021, all of whom opined that the applicant was not eligible for the sought after NEBs.
40I am persuaded by the multidisciplinary assessment report conducted by 3 separate practitioners because it demonstrated that the applicant does not suffer a complete inability to carry on a normal life. The report noted that the applicant continued to operate a motor vehicle independently and engage in pre-accident leisure activities including watching television, playing online video games, and socializing with friends and family. Additionally, each evaluator concluded that the applicant does not suffer a complete inability to carry on a normal life as a result of the subject accident based on their assessment findings.
41Further, in the analysis for determining eligibility for NEBs, it is insufficient to show changes in an individual’s post-accident life. The applicant must also demonstrate that those changes amount to her being continuously prevented form engaging in substantially all of her pre-accident activities. There is limited discussion in the applicant’s submissions of the differences in her pre- and post-accident activities. Moreover, I am unable to find that the applicant’s submissions demonstrate she suffers a complete inability to engage in substantially all of the activities which she ordinarily engaged before the accident.
42For these reasons, I find on a balance of probabilities that the applicant has not met her onus to demonstrate entitlement to non-earner benefits.
Interest
43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
44I find that the applicant is entitled to interest on the benefits owed for the two physiotherapy treatment plans, the chiropractic treatment plan and the chronic pain assessment.
ORDER
45I find:
i. The applicant should be removed from the MIG.
ii. The applicant is entitled to a chronic pain assessment;
iii. The applicant is entitled to the treatment plans for physiotherapy services dated September 23, 2021, as well as those for chiropractic and physiotherapy services dated February 17, 2022;
iv. The applicant is not entitled to non-earner benefits; and
v. Interest is owed on the treatment plans in accordance with s. 51.
Released: July 29, 2025
__________________________
Andrea Reid
Adjudicator