Licence Appeal Tribunal File Number: 23-014207/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:
Tatiana Morales Sanchez
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Roderick Walker
APPEARANCES:
For the Applicant:
Dean Trinetti, Counsel
For the Respondent:
Emily Schatzker, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Tatiana Morales Sanchez, the applicant, was involved in an automobile accident on December 20, 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, Co-operators General 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?
i. Is the applicant entitled to the treatment plan/OCF-18 (“treatment plan”) for assessments proposed by HM Medical Network, as follows:
a) $2,460.00 for a psychological assessment, in a treatment plan dated June 6, 2023.
b) $4,850.09 for physiotherapy services, in a treatment plan dated April 4, 2023; and
c) $257.44 ($1,294.09 less $1,036.65 approved) for chiropractic services, in a treatment plan dated July 4, 2023?
d) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has sustained a minor injury as a result of the accident, as defined in s. 3 of the Schedule. She is subject to the MIG and the $ 3,500.00 funding limit on treatment.
4The applicant is not entitled to any of the disputed treatment plans.
5There is no interest payable as no benefits are payable.
ANALYSIS
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 applicant in this matter states that she was in another accident on October 12, 2022, two months prior to the subject accident. On October 13, 2022 (the day after the prior accident), she visited her family doctor, Dr. Patrick Safieh, to whom she complained of neck pain and bilateral shoulder pain. The disability certificate/OCF-3 states that the applicant’s injuries are headaches, state of emotional shock and distress, abdominal and pelvic pain disorders, initiating and maintaining sleep and fatigue, low back pain and acute pain.
9The applicant submits that she has pre-existing injuries from the October 2022 accident that contributed to the injuries sustained in the subject accident on December 20, 2022.
10The respondent argues that the injuries the applicant sustained in the December 2022 accident can be treated within the MIG. The respondent submits there is no evidence that corroborate any of the treatment plans in dispute.
11The respondent also submits that the applicant has failed to meet her onus to demonstrate that her injuries are caused by the accident.
The applicant does not suffer from chronic pain.
12I find, on a balance of probabilities, that the applicant does not suffer from chronic pain with a functional impairment that warrants removal from the MIG.
13The applicant relies on the clinical notes and records (“CNRs”) of Dr. Safieh, the CNRs of Humber River Hospital, the CNRs of HM Medical and the CNRs of Cortelucci Vaughan Hospital.
14The applicant submits that she sustained chronic pain as a result of the accident and relies on the sixth edition of the AMA Guides for a chronic pain diagnosis. The applicant states she has suffered from three out of the six AMA Guides’ criteria for chronic pain, namely: withdrawal from social milieu, including work, recreation, or other social contact; 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 development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.
15The applicant states that she is no longer involved with recreational and other social activities after the initial accident because of anxiety, fear, avoidance, depression. The applicant has not returned to the gym since the accident because of her pain, and she no longer walks her dog because her pain is aggravated by prolonged walking. According to the applicant, HM Medical corroborates that she suffers from a complete ability to carry on a normal life because of the accident.
16The respondent relies on the CNRs of Dr. Safieh, the CNRs of HM Medical and also an OHIP summary form from October 12, 2019, to May 27, 2024.
17The respondent argues that the applicant has not suffered serious injuries because of the December 2022 accident. The respondent agrees that there were two accidents, one in October and one in December; however, the family doctor records of Dr. Safieh do not mention accident-related injuries until June 20, 2023. The respondent states that the applicant has not provided proper medical evidence that she suffers from a chronic pain injury. Neither Dr. Safieh nor any other medical professional has never diagnosed her with a chronic pain injury. The applicant was scheduled to undergo an MRI of the lumbar spine; however, the applicant cancelled that MRI. The applicant underwent an MRI of the right knee on March 9, 2024, which revealed no muscular tear. On June 17, 2024, the applicant attended Cortellucci Vaughan Hospital where she complained about headaches for three days, dizziness and tingling in her hands. She reported no neck pain at that time, and she did not mention the accident to the reporting physician. The respondent also notes that the CT scan of the head at that time was unremarkable.
18Having reviewed the notes of Dr. Safieh, I find that on June 20, 2023, the applicant mentions for the first time that she was involved in two separate accidents. After reporting a few headaches and anxiety, Dr. Safieh recommended Tylenol or Advil. I also find that the applicant did not report any further accident-related injuries to Dr. Safieh.
19On June 10, 2024, the applicant saw Dr. Carlos Lopez, an orthopaedic surgeon. He examined the applicant and noted that she is functioning reasonably well and her range of motion for the knee was good. Further, I find that on June 17, 2024, the applicant attended Cortellucci Vaughan Hospital where she complained about a headache, dizziness and tingling in her hands. However, at that time she reported no neck pain, nor did she mention that accident to the medical professionals.
20However, at that time she reported no neck pain she did not mention the accident to the medical professionals.
21I find that the applicant has not suffered a chronic pain impairment as a result of the December 2022 accident. As I review the medical record in June 2024, there are inconsistencies about whether she sustained this type of injury. I note the applicant’s lack of reporting of any chronic pain to Dr. Lopez and the emergency doctor at Cortellucci Vaughan Hospital. In addition, Dr. Safieh’s records do not reveal any chronic pain entries for the dates that precede the accident in December 2022. In respect to the AMA Guides’ passages for chronic pain, they are not binding on this Tribunal as they are not incorporated into the Schedule. Most importantly, I find the applicant has not directed me to any evidence to support her argument that she meets the criteria within the AMA Guides. She currently is not working and is looking for employment. I also find that the applicant had the opportunity to provide her evidence by way of an affidavit pursuant to the CCRO, which she failed to do so. The medical evidence that she has produced does not support her argument that she meets any of the AMA Guides’ criteria for chronic pain.
22For these reasons above, I find the applicant does not suffer from a chronic pain injury as a result of the accident.
Pre-Existing Injuries
23I find, on a balance of probabilities, that the applicant has not suffered any pre-existing injuries that would remove her from the MIG.
24The applicant states that as a result of the October 2022 accident, she complained of headaches, neck pain, bilateral shoulder pain, shock, and distress. She started attending treatment at HM Medical after the October 2022 accident. The applicant submits that due to her pre-existing health history, she is more susceptible to the injuries that she sustained in the December 2022 accident.
25The respondent submits in respect to the applicant’s pre-existing injuries that the disability certificate and treatment plan prepared by HM Medical mentioning her injuries, the applicant has only reported these injuries once to Dr. Safieh; however, Dr. Safieh never opines on these injuries and does not indicate that the applicant will not achieve maximal medical recovery if she were kept in the MIG.
26I find that the applicant only once reported her injuries to Dr. Safieh about the October 2022 accident. Dr. Safieh has never opined on those injuries that would prevent her from reaching maximum medical recovery if she were kept within the MIG. And for this reason, I find on the balance of probabilities that the applicant does not suffer from her pre-existing injuries and remains in the MIG.
The applicant does not suffer from a psychological impairment
27I find, on a balance of probabilities, that the applicant does not suffer a psychological impairment as a result of the accident that would warrant removal from the MIG.
28The applicant relies on the CNRs from her family doctor, Dr Safieh and a pre-screen report by Ms. Viktriatolmatsov, psychotherapist under the direction of supervision of Dr. Julie Gossein, psychologist, dated June 3, 2023. The applicant reported pain, dizziness, nightmares, flashbacks, driving anxiety, low confidence, and no energy.
29The applicant states that she has suffered psychological impairment as a result of the accident.
30Dr. Mikhail Shteynberg, chiropractor of HM Medical diagnosed her with anxiety and depressive disorder. Her family doctor treated her anxiety symptoms but never actually diagnosed her with an anxiety disorder. The applicant argues that she has not returned to her recreational activities since the accident because of her pain and struggles with her housekeeping tasks and taking care of her children.
31The respondent relies on the CNRs of Dr. Safieh and the CNRs of HM Medical. The respondent argues that while HM Medical notes that the applicant sustained an aggravation of her injuries from the October 2022 accident as a result of the December 2022 accident, there’s no medical evidence, however, to support any psychological injury.
32I find that Dr. Safieh did not diagnose the applicant with accident-related anxiety. The anxiety complained about from the applicant was related to her children, not the December 2022 accident itself, as indicated in the June 20, 2023, entry of Dr. Safieh. Further, Dr. Mikhail Shteynberg, chiropractor for HM Medical did diagnose her with psychological impairment from the October 2022 accident. I find that chiropractors in Ontario are not qualified to make any psychological diagnosis of a patient, and I find that there is no evidence that the applicant’s anxiety complaints to any medical professionals were accident related.
33In regard to the psychotherapist report of Ms. Viktriatolmatsov dated June 3, 2023, under the supervision of Dr. Gossein, the complaints were self-reported but not corroborated in any of Dr. Safieh’s CNRs. I find that this calls in question the accuracy of the self reports and the provisional diagnosis of adjustment disorder by Ms. Viktriatolmatsov. Also, I find it is unclear if Dr. Gossein had reviewed that report by Ms. Viktriatolmatsov or supported her finding of an adjustment disorder. It is also unknown if Ms. Viktriatolmatsov or Dr. Gossein reviewed the medical records of Dr. Safieh before preparing the report dated June 3, 2023.
34For the above reasons, I find the applicant, on the balance of probabilities has not met her onus and remain remains in the MIG.
35As I have determined that the applicant is still remaining in the MIG, it is not necessary for me to conduct an analysis of the treatment plans in dispute.
Interest
36No interest is awarded because no benefits are payable.
ORDER
37On the totality of the evidence, I find that:
38The applicant is not removed from the MIG on the basis of a chronic pain, psychological condition, and pre-existing injuries.
39As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
40No interest is awarded.
41The application is dismissed.
Released: August 19, 2025
Roderick Walker
Adjudicator