Campbell v. BelairDirect
Licence Appeal Tribunal File Number: 23-010528/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:
Denroy Leopold Campbell
Applicant
and
BelairDirect.
Respondent
DECISION
ADJUDICATOR: Rasha El Sissi
APPEARANCES:
For the Applicant: Esan Ince-Mercer, Counsel
For the Respondent: Patricia Dimakos, Counsel
HEARD: By way of written submissions
OVERVIEW
1Denroy Campbell, the applicant, was involved in an automobile accident on September 3, 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, Belair Insurance Company Inc., 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 $3,589.89 for physiotherapy, chiropractic and massage services, proposed by North Toronto Rehabilitation & Physiotherapy Clinic (“NTRPC”) in a treatment plan / OCF-18 (“plan”) submitted on October 15, 2022?
iii. Is the applicant entitled to $1,300.00 for physiotherapy, chiropractic and massage services, proposed by NTRPC in a plan submitted on October 22, 2022?
iv. Is the applicant entitled to $1,300.00 for physiotherapy, chiropractic and massage services, proposed by NTRPC in a plan submitted on December 7, 2022?
v. Is the applicant entitled to $1,189.55 for physiotherapy, chiropractic and massage services, proposed by NTRPC in a plan submitted on January 26, 2023?
vi. Is the applicant entitled to $871.00 for physiotherapy, chiropractic and massage services, proposed by NTRPC in a plan submitted on May 17, 2023?
vii. Is the applicant entitled to $871.00 for physiotherapy, chiropractic and massage services, proposed by NTRPC in a plan submitted on July 31, 2023?
viii. Is the applicant entitled to $983.81 for physiotherapy, chiropractic and massage services, proposed by NTRPC in a plan submitted on June 12, 2023?
ix. Is the applicant entitled to $871.00 for physiotherapy, chiropractic and massage services, proposed by NTRPC in a plan submitted on March 24, 2023?
x. Is the applicant entitled to $1,096.62 for physiotherapy, chiropractic and massage services, proposed by NTRPC in a plan submitted on March 1, 2023?
xi. Is the applicant entitled to $402.81 ($1,585.05, less $1,182.24 approved) for physiotherapy, chiropractic and massage services, proposed by NTRPC in a plan submitted on April 14, 2023?
xii. Is the applicant entitled to $2,680.00 for a chronic pain assessment, proposed by Complete Rehab Centre in a plan submitted on June 20, 2023?
xiii. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant submits that the following issue is also in dispute and remains to be resolved: “Is the respondent liable to pay an award under s. 10 of Reg 664 because it unreasonably withheld or delayed payments of benefits?”
4The respondent submits that this is not an issue in dispute and that it adjusted this matter in good faith and no contrary evidence has been provided.
5The applicant did not provide the Tribunal and the respondent with notice that the applicant would be raising this issue until he filed its written submissions for this hearing. This issue was not identified as an issue in the applicant’s application to the Tribunal, dated September 5, 2023, nor was it included in the case conference and order, dated March 19, 2024.
6The applicant did not provide any submissions in this hearing on why this issue should be added now, nor did he provide any particulars and evidence that would support an award if the issue were added.
7Therefore, balancing considerations of fairness, I decline to add the issue to the issues in dispute in this hearing.
RESULT
8I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. It is not necessary for me to conduct the “reasonable and necessary” analysis of the plans in dispute; and
iii. The applicant is not entitled to interest.
9The application is dismissed.
ANALYSIS
The MIG
10Section 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.”
11The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under s. 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he 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.
12The applicant submits that he has not sustained injuries that are minor in nature, and, as such, should not be restricted from the $3,500.00 MIG limit. Specifically, he submits that he should be removed from the MIG on the basis that he has developed chronic pain syndrome (“CPS”), and that his CPS continues to affect his functional abilities. The applicant also makes a general submission that his injuries are not minor in nature.
Minor Injuries
13I find that the applicant suffered minor injuries, as defined in section 3(1) of the Schedule in the accident.
14The applicant submits that he sustained severe and permanent personal injuries in the subject accident.
15The applicant points to the emergency room records of Scarborough Health Network Hospital (“ER”) on the date of the accident, which indicate that he reported headache and pain in the right shoulder and neck, and the clinical notes and records of his family doctor, Dr. Alan Bell.
16The applicant also cites the Disability Certificate (“OCF-3”) completed by Dr. Ian Kia, chiropractor, dated November 19, 2022, about 11 weeks after the accident. The OCF-3 indicates that the applicant suffers from superficial injury to the head, post-traumatic anger / irritability, acute cervical injury, acute shoulder injury and nervousness / anxiety.
17The respondent submits that the evidence shows that the applicant’s injuries consist of sprains and strains that fall within the definition of a “minor injury” under section 3(1) of the Schedule.
18The respondent points to the section 44 report of Dr. Stephanie Klein, general practitioner, dated April 13, 2023. Dr. Klein conducted an in-person examination of the applicant on April 4, 2023 for the purpose of assessing various treatment plans and the MIG determination. Dr. Klein found that the applicant sustained no more than a sprain/strain type injury to his thoracic and lumbar spine. She concluded that the applicant sustained minor injuries that could be treated within the MIG. She confirmed her opinion in an addendum, dated December 4, 2023.
19The respondent also points to the report of Dr. Jamsheed Desai, neurologist, dated April 13, 2023, following an in-person examination on March 30, 2023. Dr. Desai concluded that the applicant did not meet the diagnostic criteria for a concussion, and that there was no significant trauma related myelopathy, radiculopathy or neuropathy.
20The respondent also points to the section 44 report of Dr. Robert Day, psychologist, dated May 16, 2023. Dr. Day assessed the applicant in-person on February 14, 2023 for the purpose of assessing entitlement to income replacement benefits. Dr. Day did not identify any accident-related psychological diagnosis or impairment.
21The ER notes from the day of the accident record the applicant’s headache, neck pain and shoulder pain complaints. The notes of the attending physician, Dr. Rovina Fiona Pinto, indicate that the examination was unremarkable, including in the head and neck. The applicant’s range of motion was normal in the upper and lower extremities, and there were no obvious weakness, deformities, lacerations or injuries on musculoskeletal (“MSK”) examination. The applicant was diagnosed by Dr. Pinto with MSK pain, and discharged with a recommendation to take pain medication, obtain physical therapy and “RICE” (rest, ice, compression, elevation).
22The applicant did not submit any clinical notes and records of Dr. Bell, his family doctor. The respondent submitted one entry for a virtual visit to Dr. Bell on October 20, 2022, about six weeks after the accident. The entry indicates the applicant complained of ongoing daily headache, mid and low back pain, generally unchanged since the accident. The entry states: “no radicular or neurological symptoms”; assessment of “soft tissue trauma”; and plan “to follow”.
23The applicant did not submit the clinical notes and records of NTRPC or make any specific submissions about them. He made a general submission that he received treatment for more than a year after the accident and would have attended longer since treatment provided him with temporary relief.
24The notes from Dr. Pinto and Dr. Bell show that they assessed that the applicant suffered MSK pain and soft tissue injuries to his neck, shoulder and back in the accident. These assessments are supported by the opinions of the respondent’s section 44 medical assessors. While the ER and Dr. Bell’s notes do not specifically discuss the applicant’s complaints of headaches, they indicate that the applicant was neurovascularly intact and did not experience any neurological symptoms at the time.
25Therefore, the medical evidence indicates that the applicant suffered MSK pain and soft tissue injuries to the neck, shoulder and back, which fall into the definition of “minor injury” under section 3 of the Schedule. The medical evidence from the time of the accident indicates that the applicant’s headaches are not a result of another injury sustained in the accident.
26Therefore, on a balance of probabilities, I find that the applicant suffered predominantly minor injuries in the accident.
Chronic pain with functional impairment
27I find that the applicant has not met his burden of proof to establish that he has chronic pain with functional impairment that warrants removal from the MIG limit.
28The applicant relies on the section 25 report of Dr. Grigory Karmy, general practitioner, dated November 1, 2023. Dr. Karmy conducted an interview and physical examination of the applicant on October 20, 2023, and reviewed documentation. The report contains diagnoses of: chronic post-traumatic headache; chronic mechanical back pain (upper, mid and lower); SI joint dysfunction; myofascial pain syndrome; chronic pain syndrome; sleep disorder; and possible mood disorder.
29Dr. Karmy’s physical examination of the applicant was largely normal, though the applicant experienced pain on flexion of the lumbar spine and “2+” tenderness on palpation of certain back muscles and joints, with some muscle spasms. His lumbar range of motion was normal. Dr. Karmy did not review or recommend any diagnostic tests, nor did he find any neurological or other deficits on examination.
30Dr. Karmy reviewed the OCF-3 and the notes from the ER and Dr. Bell. In addition, he reviewed the clinical notes and records of NTRPC from shortly after the accident to January 14, 2023, and OHIP records from three years prior to the accident until November 22, 2022. As noted above when discussing the one note from this doctor I was provided, Dr. Bell did not physically examine the applicant after the accident (this encounter was virtual). There is no indication that Dr. Karmy reviewed notes of Dr. Bell that I was not provided. In addition, the applicant did not submit the OHIP or NTRPC records in evidence or make specific submissions about them. Dr. Karmy said the NTRPC handwritten notes were mostly illegible. He did not refer to the NTRPC notes or OHIP records in his report.
31This allows me to infer that Dr. Karmy’s diagnoses are predominantly based on the applicant’s subjective reports of ongoing impairments 12 months after the accident, supported by indications of tenderness and muscle spasm on examination.
32I place more weight on the conclusions expressed in Dr. Klein’s report compared to those expressed in Dr. Karmy’s report because they are more detailed and reliant on objective measures than Dr. Karmy’s conclusions.
33In contrast to Dr. Karmy, Dr. Klein opined that, from a purely MSK perspective, the applicant does not suffer from a significant, ongoing physical impairment as a result of the physical injuries sustained in the accident. Dr. Klein noted that he was able to transfer from seated, to standing, to supine positions without noticeable difficulty. She reported that the applicant reported local low back pain with straight leg raise, and that tenderness was subjectively reported over the lumbar paraspinals bilaterally. As with Dr. Karmy’s examination, Dr. Klein found that the applicant demonstrated preserved ranges of motion in all areas of the body examined. Dr. Klein also recorded that full strength was appreciated in the upper and lower extremities, and that orthopedic testing was grossly unremarkable, and there was no objective evidence of any neurological deficits. The respondent submits that, after receiving Dr. Karmy’s report, Dr. Klein’s opinion remained unchanged.
34The applicant points to similar scenarios as his own in Raja-Mohamad v. The Personal Insurance Company, 2022 CanLII 33191 (ON LAT) and N.K. v. Aviva Insurance Company, 2020 CanLII 30390 (ON LAT). Having reviewed these cases, I find that the scenarios are unlike the applicant’s case.
35In Raja-Mohamad, there were two section 25 reports, but no contrary opinions, unlike this case in which there are several contrary opinions presented by the respondent. In N.K., the applicant presented extensive clinical notes and records of family doctors and specialists concerning her complaints, in addition to two section 25 reports. In this case, the applicant is relying predominantly on the section 25 report of Dr. Karmy. The ER and Dr. Bell’s notes are sparse, and the applicant did not make any specific submissions concerning his treatment at NTRPC.
36However, the preponderance of the evidence does not lead me to conclude that the applicant has met his burden of proof to show that he suffers from accident-related chronic pain, especially given the weakness of the applicant’s medical evidence.
37The applicant also submits that his chronic pain continues to affect his functional abilities, specifically housekeeping, physically strenuous job duties, activities of daily living, sleep, and physical, emotional and cognitive spheres. The applicant submits that his “clinical examination and medical records” support his submission that chronic pain from the accident has substantially interfered with his activities of daily living. The applicant does not point to any specific evidence within his clinical examination and medical records.
38However, having read Dr. Karmy’s report, I note that he states that the applicant meets five out of the six criteria under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”) for chronic pain (i.e., criteria 2 to 6). The applicant did not address the AMA Guides in his submissions.
39The respondent submits that the applicant does not meet the criteria for a diagnosis of CPS, there is insufficient evidence that the applicant suffers from chronic pain that would merit removal from the MIG, and the applicant does not suffer from the requisite functional impairment to warrant removal from the MIG.
40The Schedule does not incorporate the AMA Guides’ passages on chronic pain; however, the Tribunal has consistently found them to be a useful interpretative tool.
41The AMA Guides require that the injured person meet at least three of the six criteria to qualify as having chronic pain. The Tribunal does not have to use the AMA Guides to determine if an injured person has chronic pain, but they can be a useful interpretive tool. The six criteria are: 1) use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances (criterion 1 is not relevant in this dispute); 2) excessive dependence of health care providers, spouse, or family; 3) secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain; 4) withdrawal from social milieu, including work, recreation, or other social contacts; 5) 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 6) development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
42Using the AMA Guides as an interpretative tool, I find there is conflicting evidence whether the applicant has not been able to return to full-time work due to pain (criterion 5). Dr. Karmy’s report states that the applicant works part-time as an UberEats driver, whereas he worked full-time in this job before the accident. The respondent submits that the applicant resumed full-time work, according to statements he made to the section 44 assessor involved in determining whether he was entitled to income replacement benefits. This assessment took place approximately five months before Dr. Karmy’s interview. The applicant did not provide any other specific evidence to support that he is currently working only part-time due to pain, including in reply, which was his right.
43Using the AMA Guides as an interpretative tool, I find there is evidence that the applicant has developed psychosocial sequelae after the accident (criterion 6). Dr. Karmy’s report opines that the applicant has a possible mood disorder and recommends management of the applicant’s psychological problems. Dr. Karmy’s opinion is based on the subjective complaints of the applicant of mood issues, such as intrusive thoughts/memories of the accident, anxiety when driving, fatigue, depressed mood, general anxiety, irritability and frustration. In contrast, the respondent submits that there are no medical records in evidence supporting a psychological diagnosis or that the applicant sought psychological treatment. Dr. Day, the section 44 psychological assessor, opined that the applicant did not meet the DSM-5-TR requirements for major depressive disorder.
44Having reviewed Dr. Day’s report, I note that Dr. Day administered psychometric tests, which Dr. Karmy did not. Dr. Day concluded that the applicant showed significant levels of catastrophizing in response to pain and an exaggerated negative orientation towards his experience of chronic pain which may make his pain worse. This was consistent with Dr. Day’s impressions of the applicant, i.e., “the applicant’s reported depressive symptoms are distressing and likely impacting his function to some degree”. Weighing Dr. Day’s and Dr. Karmy’s reports, I find that Dr. Day’s report supports that the applicant is experiencing depressive symptoms related to his experience of pain.
45With respect to AMA Guides’ criteria 2, 3 and 4, Dr. Karmy’s report states that the applicant has experienced impairments in his independent handling of household chores and self care, as well as diminished socializing, after the accident compared to before the accident. The respondent submits that Dr. Klein did not observe any significant physical impairment during her assessment, which she opined was inconsistent with the applicant’s report of his ongoing limitations in resuming more demanding household tasks and social activities. As the applicant did not provide other evidence to support the existence of such impairments, I find that the applicant, on a balance of probabilities, does not have functional impairments in the nature of criteria 2-4, as a result of the accident. As noted above, the applicant is not relying on criterion 1 of the AMA Guides.
46I find that the applicant has provided insufficient evidence to establish, more likely than not, that he suffers from chronic pain with functional impairment that warrants removal from the MIG.
47Therefore, I find, on a balance of probabilities, that the applicant is subject to treatment within the MIG limit.
48As I find that the applicant’s injuries are predominantly minor, these injuries are subject to treatment within the MIG limit. Therefore, it is not necessary for me to consider whether the plans in dispute are reasonable and necessary.
Interest
49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
50Given that no benefits are overdue, the applicant is not entitled to any interest.
ORDER
51For the above reasons, I find:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. It is not necessary for me to conduct the “reasonable and necessary” analysis of the plans in dispute; and
iii. The applicant is not entitled to interest.
Released: August 8, 2025
Rasha El Sissi
Adjudicator