Licence Appeal Tribunal File Number: 24-008912/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:
Tasha N Williams
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Mary Henein Thorn
APPEARANCES:
For the Applicant:
Nikiru Nwabudike, Counsel
For the Respondent:
Saher Ahmad, Counsel
Court Reporter:
Bonnie Van Der Meer
HEARD: by Videoconference:
April 29 & 30 2025
OVERVIEW
1Tasha Williams, the applicant, was involved in an automobile accident on August 30, 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, Certas Home and Auto 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:
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”)?
Is the applicant entitled to a non-earner benefit of $185.00 per week from September 27, 2022 to August 30, 2024?
Is the applicant entitled to $529.72 ($3,622.73 less $3,093.01 approved) for physiotherapy services, proposed by Mackenzie Medical and Rehabilitation in a treatment plan/OCF-18 (“plan”) dated September 19, 2022?
Is the applicant entitled to $2,851.68 for physiotherapy services, proposed by Mackenzie Medical and Rehabilitation in a plan dated November 2, 2022?
Is the applicant entitled to $1,525.84 for physiotherapy services, proposed by Mackenzie Medical and Rehabilitation in a plan dated December 21, 2022?
Is the applicant entitled to $1,194.38 for physiotherapy services, proposed by Mackenzie Medical and Rehabilitation in a plan dated December 23, 2023?
Is the applicant entitled to $3,697.14 for psychological services, proposed by Downsview Healthcare in a plan dated July 8, 2024?
Is the applicant entitled to $2,486.00 for an attendant care assessment, proposed by Downsview Healthcare in a plan dated September 27, 2022?
Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Downsview Healthcare in a plan dated February 21, 2024?
Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Downsview Healthcare in a plan dated July 8, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. the applicant sustained predominately minor injuries as defined in the Schedule and is subject to treatment within the MIG;
ii. the applicant is not entitled to a non-earner benefit;
iii. as the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute reasonable and necessary; and
iv. the applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
4At the hearing, the respondent argued the adjuster should not be called as a witness as the applicant had not complied with the Case Conference Report and Order dated November 15, 2024. The applicant was to provide the respondent with the particulars of the special award within 30 days upon receipt of the adjusters’ log notes. The respondent requested the particulars of the s. 10 award on April 23, 2025, and the applicant did not respond to the request. Since the particulars have not been provided as of yet to the respondent, it argues it will be prejudiced if the adjuster is called as a witness.
5The applicant submits until the adjuster is cross examined and she has a clearer understanding of how the file was adjusted, she will not be able to determine whether or not an award under s. 10 of Reg. 664 is warranted.
6I denied the respondent’s request and allowed the adjuster to be cross examined. The onus is on the applicant to prove that an award is warranted under s. 10 of Reg. 664. The respondent has an opportunity to ask redirect questions after the cross examination, therefore I am not persuaded by the respondent’s submissions that the cross examination of the adjuster will cause it prejudice.
ANALYSIS
The applicant remains in the MIG
7I find the applicant has not demonstrated, on a balance of probabilities, that her accident-related injuries warrant removal from the MIG.
8Section 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.”
9An 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.
10The applicant testified she had no pre-existing impairments but as a result of the accident she has physical injuries to her back, a distinct lump in her neck, pain in her neck, shoulders, and she experiences constant headaches and chronic pain. Psychologically she suffers from ongoing nervousness, stress, fear of driving, low energy, depression, anxiety, frustration, and sadness which are affecting her quality of life. She testified these injuries are the cause of the accident and the totality of these injuries should warrant her removal from the MIG.
11The applicant relies on s. 25 reports from assessors Dr. Domenic Minnella, Chiropractor, and Dr. Jacqueline Brunshaw, Psychologist, in support of her removal from the MIG.
12Dr. Minnella assessed the applicant and issued a report dated December 16, 2024, two years post accident. He relied on the following to assess the applicant; her-self reporting, review of the medical records a physical examination and a Disability Certificate (OCF-3) dated September 12, 2022. Dr. Minnella concluded the applicant’s injuries are chronic and have not resolved within a 12 week period, and therefore she should be removed from the MIG. He opined the applicant suffers from chronic neck, back, shoulder pain, and headaches and has psychological impairments as a direct result of the accident. He indicates in his report that prior to the accident the applicant’s medical history was unremarkable, there were no pre-existing impairments and that now due to the accident she suffers a complete inability to carry on a normal life.
13Dr. Brunshaw derived her opinion from a clinical interview and a series of psychological self-reporting questionnaires conducted by Gloriya Petrova’s (Dr. Brunshaw’s assistant) on April 15, 2024, nearly two years post accident. Dr. Brunshaw diagnosed the applicant with an Adjustment Disorder with Mixed Anxiety, Depressed Mood and Specific Phobia, Situational Type (Vehicular: driver, passenger, pedestrian) Moderate relates to the accident. She also concluded as a result of the accident, the applicant has a complete inability to carry on a normal life.
14Dr. Brunshaw mentions in her report that the applicant attended counselling in the past regarding the death of her cousin and she was in a previous motor vehicle accident in 2019, Dr. Brunshaw is of the opinion that these issues had completely resolved prior to the August 2022 accident.
15The respondent calls into question both Dr. Minnella’s and Dr. Brunshaw’s findings. It submits that both rely heavily on the applicant’s subjective reporting to formulate their opinions. It argues that there is very little objective evidence to support their findings and some of the objective evidence was ignored.
16It submits as an example that Dr. Minnella opined the applicant had an unremarkable health history prior to the accident. However, in a Patient Intake and Health History form dated June 30, 2021 (nearly 1 year pre-accident) from High Park Chiropractic, it indicates the applicant’s primary complaint was persistent headaches which became progressively worse and affected her sleep, work, and daily routine. The applicant testified that prior to the accident she had a diagnosis of tension headaches. The respondent questions how Dr. Minnella can singularly attribute her headaches to this accident without considering that it was a pre-existing condition that by her own admission affected her activities of daily living.
17Another flaw it points to in Dr. Minnella’s report is that he also opines the applicant suffers from chronic pain without the support from any other assessor. He makes no mention of any medication the applicant is taking for her pain; therefore, it is unclear what objective evidence he relied on to form his opinion.
18Further, the respondent submits in the clinical notes and records from the applicant’s family doctor, Dr. Ramroopsingh indicate that from October 15, 2023 to January 14, 2025 (13 visits) the applicant has soft tissue injuries with occasional pain to her neck and back. He prescribes the applicant home exercises for those issues. There is no indication in any of her doctor’s records that the applicant spoke to her doctor about being in a car accident or that she sustained any injuries physical or psychological from a motor vehicle accident in the 13 visits with her doctor in about a two year period.
19The St. Joseph’s Health Centre records show the applicant attended on September 11, 2022 (11 days after the accident), December 24, 2022, December 29, 2022 and again on February 6, 2023. During each of those visits, the applicant never mentioned injuries to her back or neck, nor did she have any psychological complaints. In fact, in the clinical note dated February 6, 2023 it indicates the applicant is “otherwise healthy” and “takes no drugs”” [emphasis added]. Further, an x-ray of the applicant’s cervical spine dated December 23, 2024 showed normal results.
20The Ambulance Call Report dated August 30, 2022 indicates the applicant was sitting in the passenger seat, she was as jerked back and forth, the trauma was minor, and she was not diagnosed with whiplash.
21The respondent submits the applicant has not met her onus and maintains the evidence does not corroborate the applicant should be removed from the MIG. It submits the applicant has not provided very little contemporaneous or objective evidence of psychological or physical impairments that support her claim.
22Dr. Minnella’s opines the applicant suffers from chronic pain and should be removed from the MIG, however, I am not persuaded by his findings. The applicant did not demonstrate that when she attended her family doctors office she complained of chronic pain. In fact, it is her family doctor’s opinion that over a year after the accident she was otherwise healthy and did not take any medication. Both Dr. Minnella and Dr. Brunshaw rely heavily on the applicant’s subjective reporting therefore I give their reports less weight that the evidence found in her family doctor’s records. I agree with the respondent, the applicant has provided very little objective evidence to support her position.
23I am not persuaded the applicant should be removed from the MIG. Based on my review of the totality of the evidence I find the applicant has not met her burden.
Removal from the MIG based on Psychological Impairments
24The applicant has not met her onus to prove she suffers a psychological impairment which affects her functioning and should be removed from the MIG.
25Upon review of her medical records, I find the opinions of Dr. Brunshaw and Dr. Minnella are largely based on the information the applicant provided at the time of the assessment which was almost two years post accident.
26Dr. Minnella in his report supported the applicant’s removal from the MIG and included in his analysis psychological impairments. He then testified he is a Chiropractor and cannot opine about psychological issues as it is outside of his scope of expertise. I agree, is outside the scope of practice for a chiropractor to opine on psychological impairments.
27The respondent submits the applicant has not met her onus she suffers a psychological impairment which impedes her functioning and should be removed from the MIG. The applicant did not seek psychological treatment after the accident which indicates she did not require treatment.
28I agree with the respondent, the applicant did not make any complaints or seek treatment from her doctor or any other physician for psychological complaints shortly after the accident and up to the two year period before seeing both assessors. The applicant has a history of seeking psychological treatment when needed, when she was faced with the death of her cousin, she pro-actively sought counselling to assist with her mental health.
Removal from the MIG based on Chronic Pain
29The applicant has not met her onus to prove she suffers chronic pain with functional impairment and should be removed from the MIG.
30It is the applicant’s testimony that her life has changed significantly post accident and that she suffers from ongoing chronic pain that affects her functioning. Both Dr. Minnella and Dr. Brunshaw support the applicant’s submission.
31The respondent disagrees and submits the there has not been a change in the applicant’s functioning in her daily life, she does not have a history of taking medication or engaging in treatment for chronic pain, nor has she been diagnosed as having chronic pain as a result of the accident by any other treating practitioner.
32Dr. Brunshaw analyzed a Pain Patient Profile administered by her assistant and opined the applicant had an elevated pain profile due to her injuries based on the applicant’s subjective reporting. The applicant reported to Dr. Brunshaw that she was experiencing physical discomfort and difficulty coping with pain to the point that it was affecting her activities of daily living.
33Dr Minnella opined the applicant suffers from chronic cervical, thoracic, lumbar spine and shoulder pain and that the pain has not achieved maximal recovery within a 12 week period.
34However, the clinical notes and records from the applicant’s family doctor, indicate she suffers soft tissue injuries only with occasional pain and there is no mention in the records of the motor vehicle accident.
35The records show and the applicant testified that she does not take medication on a daily basis, to alleviate pain she takes over the counter Advil, Tylenol and uses topical creams, occasionally she takes prescribed medication, depending on the level of pain.
36When asked during cross examination if any doctor has advised her not to participate in any activities, she responded that her family doctor only advised her to listen to her body and ease into the things she was doing. He did not specify any activities she should not be doing. Further her family doctor did not refer her to a pain specialist for treatment.
37The applicant testified there were some things she was doing differently but she also testified that none of her activities have changed pre and post accident.
38I find the applicant has not demonstrated she has accident-related chronic pain that results in a functional impairment that warrants her removal from the MIG.
39The applicant has not met her onus to prove that her pain has decreased her functioning. I find the opinions of the section 25 assessors are not corroborated by the opinions of the treatment providers.
40The applicant testified she is proactive with her care and as such she checks in with her family doctor as required. She also has a long history with her doctor and therefore, I put more weight on the records of her family doctor than the section 25 assessors. Her family doctor did not ask her to limit any of her daily activities, he simply told her to listen to her body and he gave her home exercises, and he did not find her pain to be significant enough to refer her to a chronic pain treatment provider. The applicant also testified she is not reliant on medication to manager her pain, she takes over the counter or prescribed medication only when needed.
41Based on the evidence before me and on a balance of probabilities I find that the applicant does not have chronic pain that would remove them from the MIG.
The applicant is not entitled to non-earner benefits (“NEB”)
42I find that the applicant is not entitled to NEB, as she has not demonstrated that she suffered from a complete inability to carry on a normal life.
43Section 12(1) of the Schedule provides that an insurer shall pay NEB to an insured person who sustains an impairment as a result of an accident if the insured person 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 the NEB entitlement test in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally requires a comparison of the applicant’s pre- and post-accident activities.
44The applicant testified prior to the accident the applicant worked in Human Resources full time, was a sitting member on a number of boards, coached a basketball team and founded an afterschool basketball program for children. She socialized with her friends and family often and had a full life. Post accident she testified she is less able to do her job due to concentration issues, she socializes less, has become a nervous driver/passenger, reduced energy, she has issues with housekeeping, and she is not functioning as well.
45The applicant relies on the reports of Dr. Brunshaw and Dr. Minnella in support of her eligibility to an entitlement for a non-earner benefit.
46According to Dr. Brunshaw’s report dated May 26, 2024, the applicant took a few days off of work after the accident and returned to work as a Human Resources Business Partner on September 6, 2023. When she returned back to work, she had some difficulties completing her the essential tasks of her job due to pain in her neck and back. The applicant reported to Dr. Brunshaw that she continues to work remotely for a few days a week and the rest of the week on site. Dr. Brunshaw opined that due to psychological, emotional, and unresolved physical pain the applicant suffers a complete inability to carry on a normal life.
47In Dr. Minnella’s report dated December 16, 2024, he opines the applicant suffers from chronic cervical, thoracic, lumbar spine, shoulder pain as well as post-traumatic headaches and she suffers from emotional and sleep disturbances. He attributes these injures directly to the accident and as a result, it is his opinion these injuries have become chronic and affect her ability to carry on a normal life.
48The respondent submits that the applicant has not met her burden that she qualifies for a non-earner benefit. It submits that it is difficult to see how her life has changed post accident. Outside of the limited time she took off after the accident (six days) and she continues to work, coach basketball, and grow the program she founded to support children playing basketball, she takes care of her father, her children and she is able to socialize (perhaps not quite as much) but there has not been a drastic change based on her testimony. The respondent argues that she now has a modified work out routine, but she works out frequently, and when needed she will rent a vehicle and drive.
49I find that the applicant is not entitled to a non-earner benefit. She has not met her onus in proving on a balance of probabilities that she has a complete inability to carry on a normal life as per the test in Heath. Based on the applicant’s testimony alone, I find she has not suffered a complete inability to carry on a normal life, nor does she suffer from an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident.
50During the applicant’s testimony, she described her pre and post accident activities, and I see very little change between the two. I find the applicant’s pre and post activities have not significantly changed. In order to meet the Heath test, the applicant must prove on a balance of probabilities that she is completely unable to carry on a normal life and that her accident-related impairments prevented her from carrying out those activities.
51She continues to work at the same bank in the same position as she did post accident. She has not requested any employment accommodation to her position and with the exception of the six days off work after the accident, the applicant continued to work at the same job as prior to the accident.
52She also testified that she continues to sit on a number of boards as a board member, she continues to grow her youth basketball program and she continues to socialize. Further, she has increased her level of responsibility since, she now also takes care of her aging father. I find the totality of the evidence shows that she did not suffer a complete inability to carry on a normal life.
53For the reasons noted above, I find on a balance of probabilities that the applicant is not entitled to a non-earner benefit.
54As the applicant is in the MIG, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.
Interest
55Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits overdue, no interest is payable.
Award
56The 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.
57As the respondent has not withheld or delayed any payment of benefits, there is no basis for an award under s. 10 of Reg. 664.
ORDER
58For the reasons outlined above, I find:
i. The applicant remains in the MIG;
ii. The applicant is not entitled to a non-earner benefit;
iii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
iv. The applicant is not entitled to interest or an award; and
v. The application is dismissed.
Released: August 1, 2025
Mary Henein Thorn
Adjudicator