Licence Appeal Tribunal File Number: 23-011821/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:
Collins Kyeremeh
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Estella Muyinda
APPEARANCES:
For the Applicant:
Maria Makarova, Paralegal
For the Respondent:
Simran Walia, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Collins Kyeremeh, the applicant, was involved in an automobile accident on October 7, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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
3The issues to be decided in the hearing 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 (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted as of the date of the case conference.
Is the applicant entitled to $3,244.58 for physiotherapy services, proposed by Alma Rehab, in a treatment plan/OCF-18 (“plan”) submitted on May 16, 2023?
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Life Point Medical Inc., in a plan submitted on July 24, 2023?
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
4The applicant has not met his burden in establishing that his accident-related injuries warrant removal from the MIG.
5As the MIG limits have been exhausted, it is not necessary for me to consider if the treatment plans for chiropractic services and a chronic pain assessment are reasonable and necessary.
6The applicant is not entitled to interest or an award.
7This application is dismissed.
PROCEDURAL ISSUES
8The respondent filed a Notice of Motion dated November 7, 2024, seeking leave to exceed the 8-page-limit set out in the Case Conference Report and Order (“CCRO”) dated April 11, 2024, and to file an eleven-page document instead. The respondent claims that after the case conference hearing, it discovered that the applicant did not attend a s.44 Insurer’s Examination (IE) assessment scheduled for June 14, 2024. The respondent asserts that the 3-page increase is a fair and efficient way to address the issues in dispute and the s.44 issue.
9The applicant seeks an order to dismiss the respondent’s motion. The applicant submits that the respondent’s request to add the 3 pages to its submissions is unreasonable, a flagrant disregard of the CCRO, and an attempt to have a trial by ambush. Further, the applicant states that the respondent did not raise adding the 3 pages in a timely manner. The applicant asserts that the 3 pages are in violation of the CCRO wherein the respondent agreed to submit 8 pages, a disregard for the Tribunal’s process and to the principle of fairness.
10Pursuant to s.23(1) and s.25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c., I have the discretion to strike any submissions that exceed the 8-page limit specified in the CCRO.
11In determining whether to admit the additional 3 pages, I considered the respondent’s submission that at the time of the case conference, it was not aware that the applicant would not attend the scheduled IE scheduled for June 14, 2024. As well, I considered the prejudicial effect of admitting the 3 pages to the applicant. I find that within the applicant’s own submissions, he has responded to the respondent’s s.44 submissions which are contained in the 3 additional pages. Additionally, the applicant has not indicated how he would be prejudiced if I accepted the 3 pages added by the respondent. As a result, I find that there will be no prejudicial effect on the applicant. It is on that basis that I admit the 3 pages to be added to the respondent’s submission.
ANALYSIS
Minor Injury Guideline
12I find that the applicant has not met his onus to establish that his accident-related injuries fall outside the definition of a “minor injury,” as set out in s. 3(1) of the Schedule.
13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
14An insured person 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 condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
15In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
16The applicant submits that he should be removed from the MIG on the ground that he sustained chronic pain because of the accident. The respondent disagrees.
17The applicant submits that because of the accident, he sustained injuries to his head, neck, shoulders and back. He submits that he suffered from headaches, nervousness, anxiety, and sleep issues. As a result, the applicant submits that he developed chronic pain with functional limitations and chronic pain syndrome.
18The applicant submits that Dr. Reena Ghodasara, family doctor, diagnosed him with musculoskeletal pain. She prescribed pain medication, and recommended that the applicant continue with physiotherapy, massage, and avoid lifting more than 10kg at work. Dr. Ghodasara noted that the applicant had ongoing chronic bilateral shoulder pain, tendinopathy, numbness and tingling in the arms, and on May 15, 2024, she referred the applicant to a pain clinic.
19The applicant submitted the chronic pain assessment report of Dr. Tajedin Yenus Getahun, orthopaedic surgeon, dated May 24, 2024, wherein he diagnosed the applicant with chronic myofascial strain of the cervical spine, nonvitrifiable radicular symptomatology’s, chronic myofascial strain of the thoracic spine, chronic myofascial strain of the lumbosacral spine, bilateral shoulder strains, and chronic pain syndrome.
20The applicant relies on Dr. Getahun’s assessment to assert that he meets at least three of the six criteria for chronic pain as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
21The respondent submits that the applicant did not make any submissions regarding the criterion laid out in the AMA Guides. The respondent asserts that the applicant’s reliance on healthcare providers was sporadic. His family doctor referenced chronic pain twice in a span of three years in her clinical notes, and the diagnostic imaging showed the applicant’s condition as mild degenerative changes. Thus, the respondent states that the applicant has not sustained injuries that entitle him to any benefits beyond the MIG due to chronic pain.
22Upon review of the evidence submitted by the applicant regarding chronic pain, I find that the applicant has not established on a balance of probabilities that he experiences chronic pain with a functional impairment sufficient to warrant removal from the MIG.
23While the AMA Guides criteria concerning chronic pain are not incorporated in the Schedule, this Tribunal has consistently applied them as a useful interpretive tool for evaluating chronic pain claims in the absence of a diagnosis.
24The six criteria laid out in the AMA Guides to assess chronic pain are as follows:
Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
Excessive dependence on health care providers, spouse, or family.
Secondary physical deconditioning due to disuse and/or fear–avoidance of physical activity due to pain.
Withdrawal from social milieu, including work, recreation, or other social contracts.
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.
Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours
26With respect to the AMA criteria, in his assessment Dr. Getahun opines that the applicant satisfies 4 criteria, particularly, excessive use of prescription drugs, excessive dependence on healthcare workers and spouse, avoidance of physical activity due to pain including failure to return to pre-injury function and withdrawal from work and recreation activities. I find that the applicant does not meet at least three of the AMA criteria.
27In supporting his assertion that he meets criterion 1 of the AMA – namely, excessive use of prescription drugs - the applicant submitted two prescription charts showing 3 prescription drug records from between October 8, 2022 and August 3, 2023. Additionally, on April 30, 2024, Dr. Ghadasar prescribed pain medication to the applicant. However, there is no document evidence submitted to confirm that the applicant obtained this prescribed medication or that it was as a result of the accident. As a result, I find that the document evidence submitted is insufficient to establish a dependence on prescription drugs, or reliance on prescription pain medication.
28With respect to the second criterion - excessive dependence on healthcare providers and spouse - the applicant has not pointed to any evidence that supports the assertion that he excessively depends on his spouse as noted by Dr. Getahun in his report dated May 24, 2024. Additionally, the applicant was referred to a pain clinic by Dr. Ghodasar. However, the applicant has not submitted any documentary evidence to demonstrate that he attended the pain clinic. I note that the requested clinical notes and records (CNR) from Dr. Susanne Strasberg, (general practitioner), ranging between November 29, 2022 to June 30, 2023, indicate that the applicant’s last appointment with her was on November 23, 2022. This suggests that the applicant has not been visiting treating physicians excessively.
29The applicant relies on Dr. Getahun’s report to support that he meets criterion 4, specifically withdrawal from social milieu, including work, recreation, or other social contract. Dr. Ghodasar referred the applicant for physiotherapy and recommended that he avoid lifting more than 10 kilograms at work. In the CNR dated November 23, 2023, Dr. Ghodasar recommended that the applicant continue with moderate duties. On April 30, 2024, the applicant informed Dr. Ghodasar that he was still performing light duties.
30The applicant further submits that he does not engage in recreational activities such as soccer and has reduced socializing with friends due to chronic pain. Considering the totality of the applicant’s submissions, he has not pointed to any evidence to substantiate a failure to pursue work, family, or recreational needs. The evidence before me shows that the applicant has not withdrawn completely from the activities identified in the criteria. As a result, I find that the applicant has not provided sufficient evidence to satisfy criterion 4 of the AMA. Withdrawal from social milieu, including work, recreation, or other social contracts.
31To meet criterion 5, the applicant has to show that there was a 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.
32I find that the applicant was able to successfully engage in pre-injury functions following the accident. For example, the applicant returned to work 3 months following the accident albeit on modified duties. Further, I find that the applicant does not meet criterion 5 as the applicant has not pointed to evidence that demonstrates that he was not restored to pre-injury function after the accident Particularly, the applicant has not demonstrated that his present physical capacity is insufficient to pursue work or recreational needs. Accordingly, I find that the applicant has not demonstrated that he meets the criteria 5 of the AMA Guides.
33I am not persuaded that the applicant meets at least three criteria in the AMA Guides that support removal from the MIG on the basis of chronic pain. This is because there is insufficient corroborating evidence to support Dr. Getahun’s opinion or the applicant’s assertion of meeting the criterion.
34Based upon the foregoing, I conclude that the applicant has not sustained a chronic pain condition as a result of the accident. As such, I 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.
Non-Compliance with s.44 of the Statutory Accident Benefits Schedule (SABS)
35The respondent submitted that it forwarded a notice of insurer examination to the applicant dated May 31, 2024, asking the applicant to be assessed by a physiatrist under s.44 of the Statutory Accident Benefits Schedule.
36In an email dated June 13, 2024, the applicant replied to the respondent stating that he was not going to attend the s.44 IE as it was not reasonably required. Thus, the applicant declined to attend the s. 44 assessment. Additionally, the applicant submits that the respondent had no basis to state that he was not compliant with s.44 request because there was no substantial or material change in the applicant’s medical condition or pain complaints that necessitated an in-person examination shortly prior to the scheduled hearing at the Tribunal.
37The respondent submitted that because the applicant refused to attend the s.44 IE, it did not get an opportunity to have a review of the s.25 assessment report by Dr. Getahun. The respondent relies on Ritchie v Aviva Insurance Canada, 2022 CanLII 117079 (ON LAT) in asserting that the applicant has a duty to participate in each in-person IE that is reasonably necessary and for which there is a Schedule -compliant notice.
38I agree with the decision in Ritchie that the applicant has a duty to participate in a s.44 IE that is reasonably necessary. As well, the respondent relies on Stranges v. Allstate Insurance Company of Canada, 2010 ONCA 457, where the Court stated that the onus is on the applicant to provide a reasonable explanation where he fails to attend an insurer examination. The respondent submitted that the applicant provided no explanation as to why he did not attend the s.44 IE. I find that the applicant’s refusal to attend the s.44 examination to be conducted by a physiatrist was not reasonable. Furthermore, I find that it was necessary for the applicant to participate in the S44 IE assessment to ensure that the respondent had an opportunity to review and assess the s.25 report by Dr. Getahun.
39The applicant remains in the MIG.
40As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary because the MIG funding limit has been exhausted.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been found to be owing, interest is not applicable.
Award
42The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the applicant is not entitled to an award as the respondent has not unreasonably withheld or delayed any payments.
ORDER
43The applicant has not met his burden in establishing that his accident-related injuries warrant removal from the MIG.
44As the MIG limits have been exhausted, it is not necessary for me to consider if the treatment plans for chiropractic services and a chronic pain assessment are reasonable and necessary.
45The applicant is not entitled to interest or an award.
46This application is dismissed.
Released: August 15, 2025
Estella Muyinda
Adjudicator