Licence Appeal Tribunal File Number: 23-014811/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:
Patricia E Lewis
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Yanira E. Monterroza, Paralegal
For the Respondent: Aaron Weinroth, Counsel
HEARD: By way of written submissions
OVERVIEW
1Patricia E. Lewis, the applicant, was involved in an automobile accident on September 10, 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, Unifund Assurance 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 $2,200.00 for a psychological assessment, proposed by Counselling & Psychological Services of Metro Toronto, in a treatment plan dated November 19, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
4The applicant is not entitled to the treatment plan for a psychological assessment or interest.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
5I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.
6Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
7An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.
8In this matter, the applicant submits that she should be removed from the MIG because she suffers from a psychological condition and chronic pain.
a. The applicant is not removed from the MIG on the basis of a psychological condition
9I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the accident that would warrant removal from the MIG.
10The applicant submits that she suffered a psychological impairment as a result of the accident, and she should therefore be removed from the MIG. The applicant submits that she attended for a pre-screening interview with Dr. Gloria Fiati, psychologist on November 14, 2022, who recommended a comprehensive psychological assessment. The pre-screening report states,
Ms. Lewis mentioned that she has been having difficulty emotionally dealing with the changes that have occurred in her life as a result of her accident. Ms. Lewis reported feeling sad, depressed, irritable, frustrated, angry, anxious, tense, worried and nervous (especially when driving), saying “she did not ask to be in an accident, which has changed her life physically, emotionally and financially”. Ms. Lewis also reported having increased stress in her relationships and mentioned that she is more moody and keeps to herself. As a result, she is not interested in socializing with family and friends or participating in activities she previously enjoyed.
11The respondent submits that the applicant does not suffer a psychological impairment as a result of the accident. It submits that the pre-screening assessment completed by Dr. Fiatti was not a comprehensive assessment and contained no psychometric objective testing. It submits that there is no actual DSM-5 diagnosis made by Dr. Fiatti to support a psychological impairment.
12The respondent relies upon the Insurer’s Examination (“IE”) report of Dr. Amena Syed, psychologist, dated February 17, 2023, which concluded that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 as a result of the accident.
13I find that the applicant has provided insufficient evidence to support that she sustained an accident-related psychological condition that would remove her from the MIG. Other than the treatment plan and accompanying pre-screening report of Dr. Fiatti, I find that the applicant has not directed me to any other medical evidence to support that she suffers from a psychological condition. Upon review of the psychological screening report of Dr. Fiatti, she lists the applicant’s self-reported complaints. I find that she did not review any medical documentation in preparation for the assessment and her comments are based solely on the self-report of the applicant without any contemporaneous evidence to support her complaints. I find that there is no psychometric objective testing performed and there is no diagnosis provided.
14I find that upon review of the clinical notes and records (“CNRs”) provided from Dr. Fawwaz Yakoob, family physician and Dr. Bahauddin Danial, family physician, the applicant was seen multiple times following the accident, yet there is no mention of any psychological complaints throughout the CNRs. In addition, upon review of the CNRs of Erin Mills Physiotherapy, there are no psychological complaints made. I therefore find that there is no support in these records that the applicant was suffering a psychological impairment.
15I find the IE report of Dr. Syed persuasive and comprehensive. The report was based on the subjective complaints of the applicant, objective psychometric testing, review of the provided medical records, review of relevant literature and Dr. Syed’s clinical judgment. Dr. Syed concluded that the applicant does not appear to be significantly impaired psychologically as there are minimal indications that she may have any current or active depressive or anxiogenic experience. Dr. Syed concluded that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 as a result of the accident.
16For the reasons set out above, I find on a balance of probabilities that the applicant does not suffer from a psychological condition as a result of the accident and therefore she is not removed from the MIG on this basis.
b. The applicant is not removed from the MIG on the basis of chronic pain
17I find that the applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.
18Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.
19The applicant submits that she has chronic pain with functional limitations. She submits that she suffered severe pain in her left shoulder, back and neck as a result of the accident. She relies upon the CNRs of her family physicians, Dr. Yakoob and Dr. Danial and the CNRs of Erin Mills Physiotherapy, which document her ongoing complaints post-accident. She submits that her injuries have persisted since the accident and have not resolved to date. She submits that her functionality remains impaired. The applicant relies upon the decision in T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”), for the position that chronic pain is not contained within the minor injury guideline, especially when it affects an individual’s functionality.
20The respondent submits that the applicant does not suffer from a chronic pain condition. It relies upon the IE Physician’s report of Dr. Ahmad Belfon, physician, dated February 17, 2023, to support its position that the applicant sustained only minor injuries in the accident. Dr. Belfon concluded that the applicant’s accident-related injuries are consistent with sprain/strain to the cervical spine (WAD1/11), left trapezius sprain/strain to the left shoulder girdle and sprain/strain to the thoracolumbar spine.
21The applicant in her reply submissions states that she did not return to work for a couple of months post-accident, however she was advised to return with work restrictions. She submits that her job as a Personal Support Worker involves standing for extended periods, walking continuously, lifting patients during transfer and offering emotional support to her clients. She submits that the injuries from the accident have affected her ability to perform her work duties.
22I find that the applicant has not demonstrated that she suffers from a chronic pain condition as a result of the accident. The applicant has not demonstrated that she is functionally impaired by pain. My reasoning is based on the following findings.
23First, while the applicant has set out a summary of the CNRs of Dr. Yakoob, Dr. Daniel B.H. and Erin Mills Physiotherapy in her submissions, which note ongoing complaints of left shoulder, neck and back pain and recommend further therapy, there is no diagnosis of chronic pain. I note that the last record where the applicant made any physical complaints was dated August 13, 2022, less than a year after the accident. While the CNRs note that she had restrictions at work, no particulars are provided as to her limitations. I find that these records are not sufficient to demonstrate that the applicant’s physical injuries rise to the level of chronic pain, or that she is experiencing functional impairments as a result of the accident.
24Second, I find that while the applicant submits in her reply that her injuries have affected her ability to perform her work duties, no particulars as to these limitations is provided. Merely stating that her work duties are affected, is not sufficient to prove that she has functional impairments. In addition, the applicant reported to Dr. Belfon that she resigned from her pre-accident employment in December 2021, which is not addressed in the applicant’s submissions. There are no submissions made by the applicant as to her employment status following her resignation.
25Third, while I accept the definition of “chronic pain” set out in T.S. v. Aviva, it is still incumbent on the applicant to provide evidence of the “ongoing or recurrent pain” that she experiences as a result of the accident. The applicant’s reliance on the CNRs submitted is not sufficient evidence that she has ongoing pain or that she has a corresponding functional impairment as a result of the accident. I find that the applicant has only pointed me to CNRs up to August 13, 2022, and no further records are provided supporting her ongoing pain. Therefore, I do not find that the applicant suffers from chronic pain.
26Finally, while neither party has addressed the criteria, as outlined in the AMA Guides, I find that the applicant has not met 3 out of 6 of the criteria for chronic pain. The applicant has not provided any prescription summaries, nor indicated that she is dependent on prescription drugs or other substances. The applicant is not excessively dependent on health care providers or family and exhibited no secondary decondition due to disuse or failure to restore pre-accident function. The applicant submits that she was off work following the accident, but the records indicate that she has returned to her pre-accident employment, albeit with some restrictions, while the report of Dr. Belfon states that she retired in December 2021.
27For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident and therefore she is not removed from the MIG on this basis.
The applicant is not entitled to the treatment plan for a psychological assessment
28As the applicant continues to be within the MIG, the applicant is not entitled to the treatment plan recommending a psychological assessment, dated November 19, 2022.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits owing, no interest is payable.
ORDER
30For the reasons outlined above, I find:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit;
ii. The applicant is not entitled to the treatment plan for a psychological assessment;
iii. The applicant is not entitled to interest; and
iv. The application is dismissed.
Released: September 11, 2025
Melanie Malach
Adjudicator```