Citation: Ash vs. Intact Insurance Company, 2025 ONLAT 23-014504/AABS

Licence Appeal Tribunal File Number: 23-014504/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:

Corey J Ash

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Applicant: Bianca Marinescu, Paralegal

For the Respondent: Kevin So, Counsel

HEARD: By way of written submissions

OVERVIEW

1Corey Ash (the “applicant”) was involved in an automobile accident on May 12, 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 Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

2. Is the applicant entitled to a psychological assessment in the amount of $2,486.00, proposed by A&B Medical Assessments Inc. in an OCF-18 treatment plan dated September 19, 2022?

3. Is the applicant entitled to the physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre Inc. in OCF-18 treatment plans, as follows:

(a) In the amount of $1,300.00 submitted on August 10, 2022;

(b) In the amount of $2,023.14 submitted on November 21, 2022; and

(c) In the amount of $1,525.92 submitted on March 22, 2023?

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

RESULT

3The applicant remains in the MIG and is therefore not entitled to the disputed OCF-18 treatment plans. Interest is not payable. The application is dismissed.

ANALYSIS

The applicability of the MIG

4I find the MIG applies to the applicant’s claim.

5Section 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.”

6The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2) of the Schedule, which says the MIG limit does not apply if the applicant’s health practitioner determines and provides: (1) compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and (2) that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from his accident-related injuries if kept in 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.

7In this case, the applicant is arguing that he should be removed from the MIG because his physical injuries fall outside the MIG, and because of psychological impairment.

The MIG applies to the applicant’s physical injuries

8I find the applicant has not established that his injuries fall outside the MIG.

9The applicant submits he suffers from permanent and serious impairments of physical functions, accompanied by disabling pain and limited range of motion. He relies on the OCF-3 disability certificate completed by Dr. Jennifer Violante (chiropractor) on May 24, 2022, to show his physical injuries consist of post concussion syndrome with associated nausea, vomiting, dizziness, and headaches; dislocation, sprain, and strain of joints and ligaments of his neck, shoulder girdle, lumbar spine, and pelvis; and sprain and strain of his thoracic spine and sacroiliac joint.

10The respondent argues that the applicant has not shown he sustained a non-MIG injury.

11The OCF-3 is not persuasive evidence of physical non-MIG injuries. Dr. Violante specifies strain and strain type injuries that are captured within the definition of the MIG. She specifies dislocation, sprain, and strain of joints and ligaments in the applicant’s neck, shoulder girdle, and lumbar spine. Dr. Violante also indicates sprains and strains to the applicant’s thoracic spine and sacroiliac joint. I find these injuries are properly within the MIG definition.

12While I agree that a concussion falls outside the MIG, I did not place weight on the post-concussion syndrome impairment that Dr. Violate lists in the OCF-3, nor the concussion-related symptomology that includes headache, dizziness, and nausea. In my view, concussive-related diagnoses fall outside the scope of practice for chiropractic professionals and the applicant’s submissions do not otherwise point to a medical opinion that offers a concussion diagnosis—or post-concussion syndrome for that matter—related to the accident.

13Given that the applicant has not pointed to evidence that persuades me he sustained physical injuries that fall outside the MIG, I find his claim to be removed from the MIG fails.

The applicant did not sustain an accident-related psychological impairment because of the accident

14I find the applicant has not shown he sustained a psychological impairment arising from the accident that would warrant removal from the MIG.

15The applicant submits he suffers from permanent and serious mental and psychological functions, accompanied by driving anxiety and insomnia. He relies on the May 2022 OCF-3 to show psychological symptomology that includes malaise and fatigue, sleep disorder, irritability, anger, and nervousness. He also relies on diagnoses offered in a section 25 psychological report by Mr. Mandeep Singh (psychological associate) and Ms. Stacy Yong (psychotherapist) dated February 25, 2023. These diagnoses include post-traumatic stress disorder, an adjustment disorder with mixed anxiety and depressed mood, major depressive disorder, somatic symptom disorder, and a phobia specific to travelling in motor vehicles.

16The applicant discounts the section 44 report completed on behalf of the respondent by Dr. Marc Mandel (psychologist). From what I understand of the applicant’s submissions, the basis for his position is that Dr. Mandel’s report contemplates fewer psychometric tests than the section 25 assessors’ report. The applicant relies on Elbahja v. Wawanesa Mutual Insurance Company, 2023 CanLII 116485 ON LAT (“Elbahja”) to show that corroborating medical evidence is not required to rely on the section 25 assessor opinions.

17The respondent relies on the section 44 report by Dr. Mandel, dated December 8, 2022, to argue the applicant did not sustain accident-related psychological impairments. The respondent submits that no weight should be given to the section 25 psychological report completed by Mr. Singh and Ms. Yong because it is unclear whose opinion is advanced as the basis for the report’s conclusions; who conducted the psychometric testing; and who conducted the clinical interview. The respondent relies on Balijepalli v Aviva General Insurance, 2022 CanLII 154 ON LAT (“Balijepalli”) to show that little weight should be attributed to medical opinions where it is unclear who completed which parts of the report. The respondent also relies on Hayles v Certas Home and Auto Insurance Company, 2023 CanLII 84366 ON LAT (“Hayles”) to show the Tribunal has maintained that psychotherapists are not qualified to assess and diagnose psychological injuries.

18The respondent also submits that the section 25 psychological report is otherwise deficient because there is no indication that validity testing was performed, or that records of the applicant’s medical history were reviewed to inform its conclusions. The respondent adds that the applicant produced no evidence of accident-related psychological complaints to his family physician, or any other medical evidence to support either physical limitations or psychological injuries.

19I am persuaded by Dr. Mandel’s report. I agree that Dr. Mandel’s conclusions are more reliable because, in addition to interviewing and testing the applicant, he undertook a review of the applicant’s medical history that included clinical notes and records (i.e., the Thornhill Village Family Health Organization and the Royal Care Medical Center). In my view, it is notable that Dr. Mandel did not indicate any history of psychological complaints or impairment in these medical records. In fact, the applicant confirmed to Dr. Mandel in December 2022 that he had not yet seen his family physician in relation to the May 2022 accident.

20As well, I find Dr. Mandel used validity measures to assess the reliability of the applicant’s own reports about his symptomology. Dr. Mandel used the Structured Inventory of Malingered Symptoms (“SIMS”) and determined a pattern of responding that falls within the acceptable standard and is not indicative or suggestive of an individual who is likely malingering or magnifying symptom presentation. The applicant reported no persistent sadness or low mood to Dr. Mandel, which I accept as a persuasive indicator of psychological functioning that is not impaired by the accident.

21In contrast, the report completed by Mr. Singh and Ms. Wong relied only on a clinical interview and psychometric testing, and did not seek to corroborate findings with a review of the applicant’s medical history or through validity testing. I note that the report complied by Mr. Singh and Ms. Wong describes a “standardized method” of “detection strategy” to distinguish honest responding in the testing they performed. However, I find they did not include the results of the applicant’s performance on these measures in their report. And while I agree that the section 25 assessors used a broader range of tests to investigate the applicant’s psychological performance—and identified multiple impairments in contrast to the testing performed by Dr. Mandel—I nevertheless assigned less weight to the diagnoses offered in the report because there is little corroborating medical evidence to support accident-related psychological impairment. Further, it is unclear to me who actually made the diagnoses and whether that professional was qualified to offer mental health diagnoses.

22The applicant’s reliance on Elbahja, which is not binding on me, is of little value. In Elbahja, the Tribunal removed the insured from the MIG because a section 25 psychologist determined the insured sustained an accident-related psychological condition that was supported by psychometric testing. Similar to this matter, there were no complaints of psychological difficulties to the insured’s family physician or otherwise in the intervening nine months since the accident. However, I find Elbahja is nevertheless distinguishable from this matter, because here the respondent relies on a section 44 psychological examination that rebuts the applicant’s section 25 assessment, which is corroborated by the lack of contemporaneous evidence of psychological impairment.

23Taken together on a balance of probabilities, I find the evidence in this case does not support the applicant’s claims of suffering a psychological impairment as a result of the accident. The applicant’s section 25 assessment was completed in February 2023—more than nine months after the accident—and I was not pointed to any complaints of psychological difficulties or referrals for psychological assessment by a health-care practitioner contemporaneous to the accident that would support the results. I find that Dr. Mandel’s opinion (i.e., that the applicant did not sustain an accident-related psychological impairment) is more consistent with the lack of evidence pertaining to accident-related psychological difficulties.

The applicant’s entitlement to the disputed OCF-18 treatment plans

24I find the applicant is not entitled to the OCF-18 treatment plans in dispute.

25To receive payment for an OCF-18 under sections 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.

26Given that the parties agree only $270.76 remains available to the applicant under the MIG limit, and that I have decided the applicant remains in the MIG, I find it is unnecessary to determine whether the disputed OCF-18 treatment plans are reasonable and necessary.

Interest

27Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As there are no benefits owing in this case, no interest is not payable.

ORDER

28The applicant remains in the MIG and is therefore not entitled to the disputed OCF-18 treatment plans. Interest is not payable. The application is dismissed.