Citation: Butt v. Certas Direct, 2025 ONLAT 23-012101/AABS

Licence Appeal Tribunal File Number: 23-012101/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:

Zebunnisa Butt

Applicant

and

Certas Direct

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Dayana Soto Santana, Paralegal

For the Respondent:

Patrick Baker, Counsel

HEARD:

In Writing

OVERVIEW

1Zebunnisa Butt, the applicant, was involved in an automobile accident on December 1, 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 Direct, 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 a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (MIG) and the $3,500.00 funding limit?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from December 29, 2022 to-date and ongoing?

iii. Is the applicant entitled to medical benefits proposed by 101 Physio as follows:

a) $1,398.75 ($3,404.88, less $2,538.12 approved by the respondent) for a chiropractic OCF-18/treatment pan (“treatment plan”) dated December 13, 2022; and

b) $2,485.43 ($3,259.01, less $773.58 approved by the respondent) for a chiropractic treatment plan dated March 16, 2023?

iv. Is the applicant entitled to medical benefits proposed by 101 Assessments as follows:

a) $2,799.00 for a mental health assessment, in a treatment plan dated January 4, 2023;

b) $2,460.00 for an orthopedic assessment, in a treatment plan dated March 15, 2023; and

c) $3,790.00 for psychological treatments, in a treatment plan dated March 15, 2023?

v. Is the applicant entitled to interest on any overdue payment of benefits?

vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant has suffered a minor injury and is subject to the $3,500 MIG treatment limit.

4The applicant is not entitled to a non-earner benefit of $185 a week from December 29, 2022 to date and ongoing.

5As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

6The applicant is not entitled to interest or an award.

ANALYSIS

Has the applicant sustained physical injuries which require removal from the Minor Injury Guideline (“the MIG”)?

7The applicant has not met her onus to establish she should be removed 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.

10Although the submissions are not clear, it appears that the applicant submits she should be removed from the MIG based on chronic pain in her left knee, and also psychological impairment.

Chronic Pain

11The applicant has not met the onus to establish that she should be removed from the MIG based on chronic pain.

12The applicant reported injuries to her family physician, Dr. Ko Seung, approximately two weeks after the Motor Vehicle Accident (MVA) in question. These injuries included left side neck and waist, as well as left leg (including knee) pain. Dr. Seung initially prescribed physiotherapy and pain-reducing pharmaceuticals.

13As months went by, the applicant reports that her knee pain became constant, which the applicant submits has led to a decreased quality of life, and troubles such as navigating stairs and overall mobility.

14To support her application, the applicant submitted an ultrasound report, conducted by Alton Towers X-Ray and Ultrasound, dated August 4, 2023. This ultrasound indicated that there were no tears or partial tears and that there was minimal fluid collection on the knee. The report did indicate a bulging medial meniscus, “likely related to early degenerative changes.”

15I find that while the applicant references her pain, she has not led me to medical evidence in support of her having chronic pain with a functional limitation.

16Chronic pain does not, on its own, warrant removal from the MIG. Rather, the test is chronic pain with a functional impairment.” While I note that the applicant has submitted that she suffers a reduction in mobility, I was not pointed to evidence that supports that claim, or otherwise indicates that the applicant has suffered a functional impairment.

17As a result, I find that the applicant has not satisfied their onus on a balance of probabilities that she suffers from chronic pain that would warrant her removal from the MIG.

Has the applicant sustained psychological injuries which require removal from the MIG?

18The applicant has not met the onus to establish she should be removed from the MIG based on psychological injury.

19Regarding the psychological impairment, the applicant relies upon a psychological assessment authored by Dr. Konstantinos Papazoglou, a Psychologist, in February 2023. The applicant was diagnosed with ‘adjustment disorder with mixed anxiety’ and ‘depressed mood’.

20The applicant also relies on CNR’s from her family physician, Dr. Seung.

21Having reviewed the CNRs from Dr. Seung, I note multiple visits after the MVA in question. However, despite repeated visits for physical concerns, I was not led to any references to mental health concerns.

22The respondent submits that the psychological assessment should not be given any weight because it relies entirely on self-reporting and subjective diagnostic testing.

23I am not prepared to assign the assessment zero weight, having found the self-reported evidence helped me understand the concerns of the applicant. However, I remain unconvinced, due to the subjective nature of the diagnostic tests performed, conducted solely over the telephone, and the lack of corroborating evidence.

24The onus is on the applicant to prove that her injuries rise above the level of a minor injury. I find that the applicant has not led me to sufficiently corroborating medical evidence to indicate that they have suffered a psychological injury that warrants removal from the MIG.

25Accordingly, I find on a balance of probabilities that the applicant remains in the MIG.

Is the applicant entitled to a Non-Earner Benefit?

26The applicant has not met her onus to establish entitlement to a Non-Earner Benefit.

27Section 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 person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

28Section 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.

29In her written submission, the applicant pointed to ongoing physical and mental injuries. However, the applicant did not provide a comparison of her pre and post injury activities or stipulate how or why her injuries were such that she meets the factors from the Heath test.

30The applicant’s submission points to the insurer and their reluctance to schedule s.44 insurer examinations (IEs). However, the respondent is not required to schedule IEs, and the onus to prove entitlement is on the applicant.

31For these reasons, I find on a balance of probabilities that the applicant has not met her onus to prove that she has suffered a complete inability to lead a normal life. As such, I find that she is not eligible for a non-earner benefit.

32As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The respondent reports that the applicant has exhausted her MIG treatment limits. As such, the applicant is not entitled to the treatment plans in dispute.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits payable, no interest is awarded.

Award

34The 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.

35The applicant did not make a submission as to why she should be entitled to an award.

36As there are no benefits withheld or delayed, the respondent is not liable to pay an award.

ORDER

37I find that:

i. The applicant has suffered a minor injury and is therefore subject to the $3,500 limit of the Minor Injury Guideline.

ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

iii. The applicant is not entitled to a non-earner benefit from December 29, 2022 to date and ongoing.

iv. The applicant is not entitled to an award or interest.