Licence Appeal Tribunal File Number: 23-014486/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:
Simon Alvin
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Todd Reybroek, Counsel
For the Respondent:
Melanie Sousa, Counsel
HEARD:
In Writing
OVERVIEW
1Simon Alvin, the applicant, was involved in an automobile accident on July 27, 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, Certas Home and Auto 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 limit?
ii. Is the applicant entitled to $3,170.72 for physiotherapy services, proposed by Niagara Health and Wellness in a treatment plan/OCF-18 (“plan”) submitted December 19, 2022?
iii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Novo Medical Services Inc. in a plan submitted December 14, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find, on the balance of probabilities, that the applicant has met the onus to prove his impairments warrant removal from the MIG.
4I find, on the balance of probabilities, that the applicant has not met his onus to establish that the treatment plans in dispute are reasonable and necessary.
5No interest is payable.
PROCEDURAL ISSUES
6The respondent has requested the Tribunal not consider a Chronic Pain Report authored by Dr. Joseph Wong dated August 16, 2024, because it was authored and subsequently shared with the respondent after the document exchange deadlines set out in the Case Conference Report and Order (CCRO). The CCRO indicates the deadline for documents not previously disclosed was June 30, 2024.
7The respondent submits that including the report would create prejudice for the insurer, because the late exchange did not allow the insurer the opportunity to obtain a responding addendum report.
8The applicant agrees the document was shared after the deadline, but requests the Tribunal allow consideration due to the prejudice it would cause their case should it be excluded. The applicant submitted that the respondent would suffer little to no prejudice, since they have their own s.44 IE Physiatry report. The applicant also notes that the respondent did not request an extension to secure an addendum report, which they would have consented to.
9The applicant further submits that there was still ample time for the respondent to review the report and respond accordingly, since the report was shared in September 2024, but the deadline for submissions to the Tribunal was not until January 3, 2025.
10I note that the report was written August 16, 2024, which is the same date Dr. Wong saw the applicant. I further note the report was shared relatively quickly with the respondent. While an exact date wasn’t provided, both parties agree the report was shared in September 2024.
11According to Rule 9.3, if a party fails to comply with any rule with respect to disclosure, exchange or production of documents, that party may not rely on the document without the permission of the Tribunal. In determining whether to admit a late filed document, the Tribunal may consider any relevant factor, including:
a) the reasons for non-compliance;
b) whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order.
c) the extent to which the substance of the information or testimony lies within the knowledge of the other party;
d) whether the other party opposes the admission of the evidence or testimony; and
e) the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.
12I decline to grant the respondent’s request. I find that prejudice from removing the report from consideration outweighs the prejudice it would bring to the respondent with its inclusion because the applicant relies heavily upon the evidence – evidence which the respondent could have chosen to rebut, and had the opportunity to, but did not.
13The applicant also submits that the Respondent’s submission is too long, at 11 pages and does not follow proper format, noting that the margins are incorrect. The Case Conference Report and Order states written submissions were limited to ten pages and “must be double-spaced, 12-point, Arial or Times New Roman font with 1.5-inch margins.”
14I find that the respondent’s submissions technically violate the order on proper formatting. However, I do not feel this violation merits removing their submission from my consideration, due to the prejudice it would bring to the respondent. Therefore, I deny the applicant’s request to exclude part of the applicant’s submission from consideration.
ANALYSIS
Is the applicant subject to the Minor Injury Guideline (MIG) limitations of $3,500?
15Section 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.”
16An 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 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.
17The applicant submits that they should be removed from the Minor Injury Guideline due to chronic pain, with a functional limitation. To support their claim, the applicant is relying on the Clinical Notes and Records (CNRs) of Dr. Jaewoon Park, their family physician. The CNR’s show the applicant with a history of repeated complaints of neck and chest pain.
18The applicant further relies on the Chronic Pain Report authored by Dr. Joseph Wong, Chronic Pain Specialist, dated August 16, 2024. Dr. Wong’s report offers a clear diagnosis of chronic pain, and states: “In my medical opinion, these impairments involving Mr. Alvin’s neck, upper back and lower back will continue to affect his ability with prolonged sitting, standing, bending and heavy lifting tasks, which are all important physical functions for his daily activities.”
19The Respondent relies on a s.44 Physiatry report, conducted by Dr. A. Gwardjan, Physiatrist, dated April 3, 2023. In this report, Dr. Gwardjan stated that the applicant was suffering primarily soft tissue injuries which do not merit removal from the MIG.
20The respondent submits the applicant has not chosen to consider the American Medical Association (‘AMA’) Guides to the Evaluation of Permanent Impairment for assessing chronic pain, which states at least 3 of the 6 criteria must be met for a diagnosis of chronic pain. The respondent submits that the applicant does not meet three of the six criteria for a diagnosis of chronic pain.
21While not incorporated into the Schedule, the Tribunal has determined that the AMA Guides are valuable interpretive tool for assessing chronic pain claims in the absence of a diagnosis. However, the AMA Guides are merely a tool, and I find Dr. Wong’s report compelling and persuasive as it provides a clear diagnosis of chronic pain as a result of the accident.
22I also note that Dr. Gwardjan’s s.44 Physiatry report does not address the issue of chronic pain, however, it lists specific pain in the base of the neck, and along the spine across the thoracolumbar segment, aggravated by general physical activities, particular lifting/back bending. I find this description of pain consistent with the diagnosis offered in the applicant’s submissions.
23In summary, the applicant has presented a convincing history of repeated complaints of neck, back and shoulder pain, as well as functional impairments, such as the inability to engage in repeated lifting, finger numbness and difficulty standing, sitting and twisting.
24I find, on the balance of probabilities, that the applicant has demonstrated they are suffering from chronic pain with a functional impairment. As such, they have met the onus to warrant removal from the MIG.
Physiotherapy treatment plan
25While the applicant has been removed from the MIG, it is still incumbent for them to demonstrate that a disputed treatment plan for physiotherapy services is reasonable or necessary. I find the applicant has not met this onus.
26To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
27While it is the applicant’s burden to demonstrate that the proposed treatments are reasonable and necessary, I was provided with limited submissions from the applicant as to why the treatments are reasonable and necessary. He relies primarily on the OCF-18 for the treatment in question.
28Chiropractor Branko Milen submitted an OCF-18 for chiropractic and physiotherapy treatments. The OCF-18 was for 36 combined physiotherapy and chiropractic treatments, with a goal of pain reduction, increased range of motion and increased strength, with a functional goal of a return to the activities of normal living and a return to modified or pre-work activities.
29There was a recommendation for physiotherapy based on an orthopedic consultation conducted on July 22, 2022 with Dr. Andrew Marsh. I have considered this and do not consider it relevant to the issues in dispute because it deals specifically with orthopedic issues. The applicant’s orthopedic issues were not in dispute, and foot pain was not listed in the OCF-1 or in any of the other MVA-related evidence.
30The respondent relies on the s.44 Physiatry report by Dr. Gwardjan, arguing that the treatment plan is not reasonable and necessary because the applicant already had the benefit of formal physical rehabilitation and had achieved maximum therapeutic benefit.
31The respondent further submits that the applicant was previously approved for physical therapy treatments in the three months following the accident, but he has not attended regularly since this time despite approved treatment being available.
32I have reviewed the CNRs from the applicant’s family physician, Dr. Park, and was not led to supportive evidence suggesting that physiotherapy was recommended or necessary at the time of the OCF-18.
33While I do note that Dr. Wong’s Chronic Pain Report recommends physiotherapy, I find this recommendation was not contemporaneous. Specifically, the report was authored in August 2024, while the treatment plan for physiotherapy was proposed in December of 2022, meaning the chronic pain report is not contemporaneous to the treatment plan.
34Turning to the s.44 report of Dr. Gwardjan, I note that the report states that the applicant suffered from soft tissue injuries and had already achieved the “maximum therapeutic benefit” from prior physical rehabilitation treatments.
35For these reasons, I find, on the balance of probabilities, the applicant has not met his onus to establish the proposed physiotherapy treatment plan is reasonable or necessary.
Is the applicant entitled to a Psychological Assessment?
36I find, on the balance of probabilities, that the applicant has not met his onus to prove that a Psychological Assessment is reasonable or necessary.
37The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
38The applicant submits an OCF-18 from Psychologist Dr. H. Rahguraman, dated December 14, 2022, proposing a Psychological Assessment to explore specific isolated phobias and adjustment disorders.
39I was not led to compelling contemporaneous supportive evidence which indicated a psychological issue exists. Again, while I note that Dr. Wong’s report recommends a psychological assessment, it was not contemporaneous to the disputed treatment plan.
40Furthermore, I was not led to reference in the CNR’s from the family physician that a psychological issues exists.
41Without supporting medical evidence that the applicant is experiencing psychological symptoms as a result of the accident, I find the applicant has not, on the balance of probabilities, demonstrated that a psychological assessment is reasonable or necessary.
Interest
42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are overdue, no interest is payable.
ORDER
43The application is granted in part.
i. The applicant has met the onus to be removed from the Minor Injury Guideline, and the $3,500 treatment limit will no longer apply.
ii. The applicant has not met the onus to demonstrate that a psychological assessment or a proposed treatment plan for physiotherapy are reasonable and necessary.
iii. No benefits are overdue and no interest is payable.
Released: August 28, 2025
Jeff Chatterton
Adjudicator