Licence Appeal Tribunal File Number: 23-011410/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:
Sako Kesablyan
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Aparajita Singh, Counsel
For the Respondent:
Susana Cardoso, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sako Kesablyan (the “applicant”) was involved in an automobile accident on August 1, 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 BelairDirect Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent characterized the applicant’s accident-related injuries as falling within the “minor injury” definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute.
ISSUES
3The 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? Note: The parties agree there is $601.25 remaining for treatment within the MIG limit as of the date of the case conference.
ii. Is the applicant entitled to physiotherapy services, proposed by HealthMedica Canada as follows:
i. $3,947.52 proposed in a treatment plan/OCF-18 (“plan”) submitted July 7, 2023?
ii. $3,542.75 proposed in a plan submitted September 11, 2023?
iii. Is the applicant entitled to $100.25 ($200.00 less $99.75 approved) for physiotherapy services, submitted on an OCF-3 from Kitchener Physiotherapy & Wellness, dated September 2, 2021, and partially approved November 12, 2021?
iv. Is the applicant entitled to services, proposed by HM Medical Network Ltd. as follows:
i. $2,460.00 for a psychological assessment, proposed in a plan submitted October 3, 2022?
ii. (b) $4,987.56 for psychological treatment, proposed in a plan submitted June 21, 2023?
iii. (c) $2,460.00 for a chronic pain assessment, proposed in a plan submitted September 6, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
4The applicant withdrew his claim for entitlement to IRBs. Accordingly, the issue is not in dispute.
RESULT
5The applicant remains in the MIG and therefore it is not necessary to consider whether the disputed assessment plan is reasonable and necessary.
6The applicant is not entitled to interest or an award.
7The application is dismissed.
ANALYSIS
Minor injury guideline (“MIG”)
8I find that the applicant has not established that he should be removed from the MIG.
9Section 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.”
10An 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
11The applicant submits that he should be removed from the MIG due to chronic pain in his lower extremity, specifically ongoing pain radiating from his lower back, his right knee and right hip. The applicant further submits that he suffered psychological impairments which warrant removal from the MIG. He submits that he was diagnosed with a major depressive disorder moderate single episode and specific phobia, automobile fear as a result of the subject accident and relies on the psychological assessment report of Dr. Gosselin dated May 29, 2023, and her addendum rebuttal report date October 24, 2023.
12The respondent argues that the applicant properly remains within the MIG as he has suffered uncomplicated soft tissue injuries and that the applicant’s ongoing pain complaints lacked corroborative medical evidence and that there is no evidence to suggest that the applicant sustained any musculoskeletal impairments. It further argues that the applicant does not meet the clinical threshold for a DSM-V diagnosis and that the applicant has only suffered a mild elevation in psychological symptoms that do not meet clinical criteria for an impairment. The respondent relies on the reports of Dr. Saunders, psychologist dated January 20, 2023, July 21, 2023, August 21, 2023, and December 18, 2023.
13For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.
Chronic Pain
14I find that the applicant has not established on a balance of probabilities that he has sustained chronic pain with a functional impairment that would require treatment outside the MIG.
15The applicant has not demonstrated that he suffers from chronic pain with a functional impairment as a result of his accident-related pain. The CNRs and treatment records do not refer to a functional impairment due to pain and the applicant’s infrequent accident related documented CNRs corroborate this finding. On the day of the accident (August 1, 2021) the applicant was seen at Grand River Hospital for what was described as a minor collision. The applicant’s chief complaint was lower extremity injury. The applicant received an X-ray to his knee and hip on the right side which were negative for fractures. Dr. Harte, the emergency doctor, notes in the CNRs that there was no swelling, no abrasions, no bruising to the right knee; however, there was tenderness to the lower patellar area. There was no joint effusion and no bruising to the applicant’s buttock, but it was tender.
16On August 18, 2021, the applicant informed his family doctor, Dr. Ghaly, about the subject accident and reported that he continues to have right knee pain and right thigh pain, and that he has mild pain in his shoulder. The applicant began weekly physiotherapy which he reported to Dr. Saunders, psychologist, as having improved to his pre-accident function by about 60%. The applicant informed Dr. Saunders that he has begun a hardwood flooring installation company which is likely prolonging his physical recovery.
17Following the accident, the applicant’s family physician, Dr. Ghaly, prescribed him with baclofen and naproxen. This is last accident related CNR from the family doctor until another X-ray was conducted by True North Imaging on May 29, 2023, almost two years post accident, on the applicant’s left foot and lumbar spine. Again, this X-ray showed no abnormalities, no evidence of arthropathy, joint calcification or erosion. Further, the applicant underwent an MRI on his lumbar spine on July 17, 2024, at KMH Cardiology Centre which again produced negative findings. The results of the MRI show that there is no disc protrusion or extrusion, spinal stenosis or foraminal stenosis at any level, the conus is unremarkable and no concerning bony lesions.
18Finally, I find that the section 44 assessment conducted by Dr. Lamine, physician, on February 9, 2024, corroborates the contemporaneous medical evidence that the applicant does not suffer from chronic pain with a functional impairment. Dr. Lamine conducted a sixty-minute assessment of the applicant and in his report dated February 26, 2024, lists an extensive file review of the applicant’s medical history. Dr. Lamine’s examination of the applicant shows full range of motion in all assessed joints, consistent with prior X-ray and imaging reports that reveal no acute or chronic musculoskeletal abnormalities and no objective findings since the considerable time that has lapsed since the accident. In addition, the applicant at the time of Dr. Lamine’s assessment was taking Advil on an as-needed basis to manage his pain symptoms, therefore he was not dependent on medication which I find is not supportive of chronic pain with a functional impairment.
19In the absence of objective corroborating evidence in the two years following the accident that show that the applicant suffers from chronic pain with a functional impairment, I accept Dr. Lamine’s conclusion that the applicant does not suffer from chronic pain.
20On a balance of probabilities, I find that the applicant does not suffer from chronic pain with a functional impairment as a result of the subject accident.
Psychological Impairment
21I find that the applicant has not sustained a psychological impairment as a result of the accident that warrants removal from the MIG.
22On August 18, 2021, seventeen days after the accident, the applicant complained to Dr. Ghaly of anxiety, fear, and flashbacks. He received a referral for psychotherapy, however, there are no CNRs or confirmation that the applicant attended any psychotherapy sessions in evidence. The applicant highlights the psychological assessment report by Dr. Gosselin dated May 29, 2023, and her addendum rebuttal report dated October 24, 2023, in which Dr. Gosselin diagnosed the applicant to have satisfied the DSM-5 diagnostic criteria for major depressive disorder, moderate, single episode and specific phobia, automobile fear.
23Dr. Gosselin’s assessment of the applicant follows the respondent’s psychological assessment report dated January 20, 2023, from Dr. Saunders, psychologist. In his report, Dr. Saunders diagnosed the applicant with a mild elevation in psychological symptoms that did not meet clinical criteria for impairment and opined that the applicant tended to exaggerate his condition. Dr. Saunders maintains this position in his addendum report dated July 21, 2023, his further assessment report dated August 21, 2023, and his addendum report dated December 18, 2023.
24I put more weight on Dr. Saunders’ report because of Dr. Saunders’ thorough consideration of both the applicant’s subjective and objective reporting, whereas Dr. Gosselin’s assessment is heavily reliant on the applicant’s subjective reporting and less focussed on objective evidence.
25Further, while the testing of both Dr. Gosselin and Dr. Saunders produced similar test results, Dr. Saunders administered the Personality Assessment Inventory (“PAI”) which contains a number of validity indicators designed to assess factors that could distort the results of testing. The testing indicated that the applicant tends to exaggerate his psychological symptoms, thereby leading Dr. Saunders to opine that the applicant does not suffer from a psychological impairment that warrants removal from the MIG.
26I give more weight to Dr. Saunders’ findings because the contemporaneous evidence does not support the applicant having an accident-related psychological impairment. While the applicant’s reporting of psychological impairments to his family doctor shortly after the accident suggest psychological sequala from the accident, there are no CNRs before me that the applicant attended any psychological treatment after the accident. Furthermore, in her rebuttal report Dr. Gosselin does not comment on any objective testing results, nor does she point the reader to any objective testing which would support her position. For the above reasons I find that the applicant has not sustained a psychological impairment that would warrant the applicant to be removed from the MIG.
27I find on a balance of probabilities that the applicant has not sustained a psychological impairment as a result of the accident that warrants removal from the MIG.
The OCF-18 in dispute
28The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed treatment and assessment plans is not required.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest is not owing.
Award
30The 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.
31The applicant submits that the respondent has prejudiced the applicant and caused undue hardships as the applicant was denied treatments without considering the entire medical records before them. The applicant further submits that the respondent solely relied on the s.44 reports which were inconsistent with other medical records.
32The respondent argues that the applicant did not provide any particulars to substantiate his claim to an award. It argues that no evidence has been adduced by the applicant that would support the respondent’s conduct as being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, therefore the applicant has not met his burden of proof in establishing why he is entitled to an award.
33Having found that the respondent acted appropriately in maintaining the applicant in the MIG, I find that the respondent did not unreasonably withhold or delay any benefits from the applicant. Accordingly, the applicant’s request for an award is denied.
ORDER
34It is ordered that:
i. The applicant remains in the MIG.
ii. As the applicant is in the MIG, it is not necessary to consider whether the treatment plan in dispute is reasonable and necessary.
iii. The applicant is not entitled to an award.
iv. Since no benefits are owing, interest is not payable.
v. The application is dismissed.
Released: September 10, 2025
__________________________
John Mazzilli
Adjudicator```