Licence Appeal Tribunal File Number: 23-012096/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:
Akeem Walker
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Dagmar Boettcher
APPEARANCES:
For the Applicant:
Natalia Poliakova, Paralegal
For the Respondent:
Faiza Ikram, Counsel
HEARD:
In Writing
OVERVIEW
1Akeem Walker, the applicant, was involved in an automobile accident on August 17, 2021, 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, Wawanesa Mutual 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?
ii. Is the applicant entitled to $2,428.73 for physiotherapy services, proposed by Bodyworks Physiotherapy and Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) submitted March 27, 2023?
iii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Medex Assessments Inc. in a plan submitted October 4, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not met his burden of demonstrating that his injuries fall outside the definition of a “minor injury” as defined in s. 3 of the Schedule and he is therefore subject to treatment within the $3,500.00 MIG limit.
4As the applicant remains within the MIG there is no entitlement to the benefits at issue.
5No interest is payable.
6The application is dismissed.
ANALYSIS
The injuries are predominantly minor and the MIG applies:
7I find that the applicant has not met his onus of proving that his injuries fall outside the definition of a “minor injury” as defined in s. 3 of the Schedule and he is therefore subject to treatment within the $3,500.00 MIG limit.
8Section 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 minor injuries. 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 condition combined with compelling medical evidence stating that the condition precludes recovery if they were 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 submits that he is not subject to the $3,500.00 MIG limit on benefits due to his accident-related chronic pain.
Parties’ Positions:
11The applicant submits as evidence the clinical notes and records (“CNRs”) of his family physician, Dr. Seong Choe and points me to the September 8, 2021 and September 14, 2021 entries. On September 8, 2021, the applicant informed Dr. Choe of both the motor vehicle accident (“MVA”) and that he had attended the ER for x-rays of his right hand, cervical spine, pelvis, right shoulder and right hip. X-rays proved to be negative for fractures for all sites and showed no dislocation of the cervical spine. Dr. Choe’s notes indicate that he assessed the applicant as experiencing “sprain, strain”. The CNRs of September 14, 2021, however, include only the applicant’s subjective comments, and no assessment or plan is documented by Dr. Choe on September 14, 2021.
12I am also pointed to the CNRs from Bodyworks Physiotherapy for the period of September 20, 2021 to February 10, 2022. The applicant submits that he attended physiotherapy twice a week for approximately six months and presented with complaints of neck and back pain, headache, shoulder, hip and hand pain. A review of the CNRs for the period from October 6, 2021 to October 24, 2021 indicates that the applicant reported his back pain had improved, and exercises were recommended. For the period of November 2, 2021 to November 22, 2021, the applicant reported his back pain as mild, and for the period to January 13, 2022, the CNRs indicate that the physiotherapist assessed the applicant as having lumbar sprain/strain and eventually, tendonitis. For each treatment received after January 20, 2022, the applicant reported that his back pain was “better today”.
13The applicant then points me to the treatment plan submitted October 4, 2021 through Medex Assessments for a psychological assessment. The plan was completed by Dr. Zack Cernovsky, Psychologist. The applicant submits that Dr. Cernovsky listed injuries within the plan of adjustment disorder, generalized anxiety disorder, malaise and fatigue, pain, depressive episode, headache, nightmares, and nonorganic sleep disorder. The goals of the plan were pain reduction, improvement in mood and psychology and a return to the activities of normal living. A review of the treatment plan indicates that this was a virtual assessment and the injuries listed were subjectively reported by the applicant as part of the pre-screening process.
14The applicant’s submission also points me to a neurological referral letter by Dr. Joseph Chu dated January 31, 2022. Dr. Chu recommended an MRI of the brain and lumbosacral spine. While the applicant reported to Dr. Chu that his headaches had not improved over the last year, this would indicate that the applicant’s headaches began prior to the MVA, as the appointment with Dr. Chu occurred only five months after the accident. I note that Dr. Chu has not assessed the applicant within the referral letter and the injuries described are subjectively provided by the applicant. The MRI subsequently indicated early degenerative changes with disc bulging at L-5-S1.
15I am also pointed to the report of Dr. Salim Dahmis of Releva Chronic Pain Centre dated January 12, 2022, in which Dr. Dahmis reports the applicant had full range of motion, full flexion, full extension and full rotation and there were no obvious deformities. Dr. Dahmis proposed investigations that included blood work, EMG, ultrasound to the applicant’s right shoulder, and an MRI of the spine. Each of these were completed and results were normal. Dr. Dahmis also recommended an interventional rehabilitation plan that included pharmacological options such as nerve blocks, Tylenol, Baclofen, Lyrica and CBT. The applicant agreed to the treatment plan and an interdisciplinary approach was started. The report also indicates that the applicant advised that the injuries had been improving since the onset.
16However, I was also pointed to documents within another Tab in the applicant’s submissions that included another report by Dr. Dahmis dated the same date of January 12, 2022. This report differs from the report summarized above, in that the second report of the same date by the same physician stated that the applicant reported right shoulder pain for three+ years and lumbar pain for three+ years, prior to the motor vehicle accident of August 17, 2021. This second report states that the applicant’s pain had been improving since the motor vehicle accident of 2021. There was no mention of headaches in the second report. The section titled “Impression” noted chronic mechanical cervical/lumbar pain. Given that I was pointed to evidence that differed from a primary reference, I am unable to verify which is correct and therefore I cannot place much weight on either report of Dr. Dahmis.
17The applicant submits that there were numerous visits to his family physician in 2023 and 2024 with complaints of shoulder, neck and back pain. I found no CNRs within this Tab for any appointments in 2023. I did find CNRs in another Tab for 2023 with an entry dated May 8, 2023 in which the applicant advised Dr. Choe that he was doing well and had no fatigue or weakness. There was no mention of accident-related injuries during the visit and Dr. Choe assessed the applicant as generally well and recommended regular exercise and healthy nutrition. I also found within another Tab, a record for an appointment with Dr. Choe on August 8, 2023 for an examination of pain he was experiencing in his toes. The applicant also advised that his right shoulder started hurting after the accident and that he had done physio for a year which helped, but it continued to hurt. This is in contradiction to the report by Dr. Dahmis above, in which the applicant advised on January 12, 2022 that he was experiencing right shoulder pain for 3+ years.
18The CNRs for 2024 that I was pointed to include an appointment on March 19, 2024, in which the applicant reported shoulder and lower back pain. The assessment was arthritis and tendinitis. On May 30, 2024 the applicant attended Dr. Choe for a non-accident-related concern and on September 19, 2024, the applicant reported that he had no headaches. The applicant did not mention back or shoulder pain. These were the only CNRs within 2024 provided by the applicant to verify the applicant’s submission that there were numerous visits to the family physician in 2023 and 2024 with complaints of shoulder, neck and back pain.
19The respondent submits that the applicant’s accident-related injuries fall within the MIG and that the applicant has not established, on a balance of probabilities, that his injuries fall outside the MIG. The respondent submits that the applicant’s pre-accident medical history includes sleep issues, lower back sprain, shoulder pain and pre-accident anxiety. I am pointed to an emergency record for November 18, 2017, indicating that the applicant had been involved in a previous MVA and was diagnosed with a low back sprain. A subsequent visit to Dr. Choe confirmed strain/sprain as a result of the 2017 accident.
20The respondent points me to seven visits by the applicant to Dr. Choe for the period January 31, 2022 to January 30, 2024, during which there was no mention of any accident-related injuries. The respondent also points me to the CNRs from Spinal Touch Wellness Centre on December 5, 2017, in which the applicant was assessed with back sprain and strain.
21The respondent directs me to the Insurer’s Examination Medical and Rehabilitation Physiatrist’s Report of Dr. Julian Mathoo, dated May 17, 2023. The report states that the applicant denied any pre-existing physical complaints, any medical or physical interventions as well as specialists. The respondent notes that Dr. Mathoo’s physical examination demonstrated the applicant exhibited full range of motion in his cervical spine, bilateral shoulders and back, with some mild tenderness over the right trapezius muscle area. Dr. Mathoo noted that the applicant reported independence with all activities of self-care. He walked independently and makes his own meals, does light cleaning and banking, and drives. The applicant did not demonstrate any significant pain behaviour. Dr. Mathoo diagnosed the applicant with Whiplash Associated Disorder Type 1 with low back pain. Dr. Mathoo concluded that the applicant sustained minor soft tissue sprain/strain type injuries of his neck and back with no barriers to recovery and had achieved maximal recovery with no residual signs of impairment.
22The respondent submits that the applicant continued to be diagnosed with soft tissue injuries by Dr. Choe and did not engage in the regular use of prescription medications after the MVA. He did not report his back pain to be severe and constant and did not report that it impacted his activities of daily living. The respondent submits that the applicant continued to work and travelled on vacation to the Dominican Republic. The respondent submits that the applicant has not undergone significant treatment since the accident, is not dependent on health care providers and does not meet the criteria for chronic pain under the AMA Guides.
Does the medical evidence support a diagnosis of chronic pain?
23I find that the applicant has not proven, on a balance of probabilities that he suffers from chronic pain with functional impairment. It is well established that ongoing or lingering pain does not automatically take a person out of the MIG. The pain must be of a continued severity and must be severe functionally disabling pain.
24Both parties made submissions based on the American Medical Association Guides (“AMA Guides”), which state that at least three of the following criteria must be met for a diagnosis:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
ii. Excessive dependence on health care providers, spouse, or family;
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
iv. Withdrawal from social milieu, including work, recreation, or other social contacts;
v. 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
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
25Although, the AMA Guides’ six criteria for chronic pain were not incorporated in the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes.
26The applicant relies upon Hagley v Intact Insurance Co., 2021 CanLII 69278 (ON LAT) in which the Tribunal found that the six criteria for addressing chronic pain under the AMA Guides are not binding upon the Tribunal and have been adopted as an evaluative tool. The applicant submits that his injuries align with the AMA Guides in that there is evidence that he has become dependent on prescription drugs or other substances, and that his use of these drugs is beyond the recommended duration. The applicant also submits that the pain has persisted for longer than six months and is disproportionate to the underlying injury, to the extent that the applicant has not been able to maintain the same level of activity as he enjoyed before the accident.
27The respondent submits that there were several visits to the family physician in 2022 and 2023 during which the applicant did not mention ongoing accident-related injuries and submits that he did not report that functional impairment hindered his daily activities.
28The respondent submits further that, although Dr. Cernovsky listed in the virtual pre-screening the injuries of adjustment disorder, generalized anxiety disorder, malaise and fatigue, pain, depressive episode, headache, nightmares, and nonorganic sleep disorder, the CNRs provided prior to the MVA document many of these same complaints. Prior to the MVA the applicant reported being tired for “the past 10 years” and feeling anxiety due to a number of non accident-related issues. He also reported occasional shoulder pain within the September 3, 2019 CNRs of Dr. Choe.
29I have placed more weight on the respondent’s submissions with regards to the use of prescription medication. The CNRs submitted by the applicant from the Scarborough Health Network on August 17, 2021 show that the applicant reported he was not on medications at the time of the accident. The CNRs of Dr. Choe for September 8, 2021, September 14, 2021, and May 8, 2023, did not note any medications on the file and Dr. Choe did not prescribe pain medication for the motor vehicle accident injuries during these appointments. The report by Dr. Dahmis dated January 12, 2022 stated that the applicant advised his only medications were Tylenol and Advil, taken once or twice a month as needed. On January 31, 2022, the referral letter from Dr. Chu to Dr. Dahmis stated that Dr. Chu was prescribing Nortriptyline, and that Dr. Chu would reassess after the MRI. I was not pointed to a follow-up with Dr. Chu regarding the prescription, and the CNRs of Dr. Choe for the appointments on January 31, 2022, February 24, 2022, May 6, 2022, June 20, 2022, and November 19, 2022 do not mention, nor prescribe, any medications.
30The applicant pointed me to a report by Dr. Dahmis of Releva Chronic Pain Centre. Dr. Dahmis reports the applicant had full range of motion, full flexion, full extension and full rotation and there were no obvious deformities. Dr. Dahmis proposed investigations that included blood work, EMG, ultrasound to the applicant’s right shoulder, and an MRI of the spine. Each of these were completed and results were normal. Dr. Dahmis also recommended an interventional rehabilitation plan that included pharmacological options such as nerve blocks, Tylenol, Baclofen, Lyrica and CBT.
31However, I was also pointed to documents within another Tab in the applicant’s submissions that included another report by Dr. Dahmis dated the same date of January 12, 2022. However, this report differs from the report summarized above, in that the second report of the same date by the same physician stated that the applicant reported right shoulder pain for three+ years and lumbar pain for three+ years, prior to the motor vehicle accident of August 17, 2021. This second report states that the applicant’s pain had been improving since the motor vehicle accident of 2021. There was no mention of headaches in the second report. The section titled “Impression” noted chronic mechanical cervical/lumbar pain. Given that I was pointed to evidence that differed from a primary reference, I am unable to verify which is correct and I cannot place much weight on either report of Dr. Dahmis.
32I also note that the Body Works CNRs submitted by the applicant document that the applicant consistently reported that the pain improved or was mild, and the CNRs note sprain/strain injuries. A review of the CNRs for the period from October 6, 2021 to January 20, 2022 indicates that the applicant reported back pain had improved or was mild. The CNRs indicate that the physiotherapist assessed the applicant as having lumbar sprain/strain and tendonitis and for each treatment received after January 20, 2022 the applicant reported that his back pain was “better today”.
33I placed more reliance on the assessment report dated May 9, 2023 by Dr. Mathoo which stated that the applicant denied the use of medications, including over-the-counter analgesic medications and that there was no indication that the applicant withdrew from the social milieu as he continued to work and perform his daily activities independently.
34The CNRs provided by the applicant indicate a history of work-related injuries, minor surgical procedures, anxiety related appointments, and concerns not related to the motor vehicle accident. I was not pointed to CNRs indicating the family doctor diagnosed the applicant with chronic pain or prescribed chronic pain medications for the motor vehicle accident injuries. References within the CNRs repeatedly refer to sprain and strain injuries, such as those within the notes of October 31, 2023. Dr. Choe recommended stretching, physiotherapy, massage and exercise. I am not persuaded that the CNRs establish that the applicant suffers from chronic pain due to the motor vehicle accident of August 17, 2021.
35I am persuaded by the respondent’s submissions that for chronic pain to be more than just sequelae from soft tissue injuries, it must be of such a severity that it causes suffering and distress accompanied by functional impairment. I found a lack of evidence regarding functional impairments due to the motor vehicle accident. The applicant continued to exhibit a full range of motion, was able to continue working, and did not report limitations in his daily activities to his family doctor. He reported travelling for a vacation and he experienced a number of personal relationships. I found insufficient evidence advanced by the applicant to persuade me that, on a balance of probabilities, the applicant suffers from chronic pain and should be removed from the MIG.
36As I have found that the applicant is not entitled to funding beyond the MIG limit, it is unnecessary for me to consider whether the treatment plans dated October 4, 2021 and March 27, 2023 are reasonable and necessary.
Interest
37As I have found that there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
38I order the following
i. The applicant remains within the MIG and is subject to the $3,500.00 funding limit;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to interest; and
iv. The application is dismissed.
Released: August 22, 2025
Dagmar Boettcher
Adjudicator