Licence Appeal Tribunal File Number: 23-015493/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:
Flona Yousif
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Kateryna Vlada, Counsel
For the Respondent: Sharon Dagan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Flona Yousif, the applicant, was involved in an automobile accident on March 20, 2020, 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, Travelers Insurance Company of Canada, 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 chronic pain assessment proposed by Health-Pro Wellness in a treatment plan submitted March 1, 2023?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s accident-related injuries are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG. The applicant is not entitled to the treatment plan for a chronic pain assessment or interest.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
4I 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.
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) 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.”
6An 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.
7In this matter, the applicant submits that she should be removed from the MIG because she suffers from chronic pain.
The applicant is not removed from the MIG on the basis of chronic pain
8I 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.
9Chronic 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. While it is not part of the Schedule, the Tribunal has generally accepted the criteria for a chronic pain condition outlined in the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. To demonstrate a chronic pain condition, the person must demonstrate that they likely meet three of the following six criteria:
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 contracts.
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.
vi. Development of psychosocial sequelae after the initial accident, including anxiety, fear-avoidance, depression, or non-organic illness behaviours.
10The applicant submits that she should be removed from the MIG because she suffers from chronic pain as a result of the accident. She submits that as a result of the accident, she experiences pain that starts in her neck and radiates to her shoulders, extending to her upper, middle and lower back; occasional dizziness and headaches; weakness in her upper limbs; and numbness in her left hand limiting her ability to perform everyday tasks. She submits that these symptoms contribute to her significant physical limitations and daily challenges, which severely impact her overall well-being. She argues that despite extensive rehabilitative efforts, there has been minimal improvement in her symptoms well beyond the anticipated recovery period which supports the inference that her injuries extend beyond mere soft tissue damage and have likely progressed to a chronic condition.
11To support her position, the applicant relies upon the clinical notes and records (“CNRs”) of Dr. Mohamed Salyani, family physician, the Emergency Record (“ER”) from Headwaters Health Care Centre dated July 7, 2022; the CNRs of Health Pro Wellness where she attended for treatment, and the Disability Certificate dated July 13, 2020 prepared by Dr. Rob Tarulli, chiropractor at Inline Rehabilitation.
12The applicant further submits that with respect to the AMA Guides, she fulfils more than three of the criteria. She submits that she is unable to complete the chores she did prior to the accident and she depends on her family for assistance. She states that she has consistently voiced her need for therapy, which was only stopped due to a lack of funding and insurance stoppage of treatment coverage. She submits that she has gained significant weight and has lost physical strength as a result of her injuries. She also is no longer working as the head chef at the restaurant where she worked pre-accident.
13The applicant also claims that the Insurer’s Examination (“IE”) report of Dr. Alfonse Marchie, physiatrist, dated June 8, 2023, should be given little weight because Dr. Marchie failed to meaningfully consider the applicant’s ongoing challenges in performing her daily activities, as well as her documented reliance on family members and healthcare providers for support. The applicant argues that the report is incomplete and does not reflect a comprehensive evaluation of her condition.
14The respondent submits that the applicant’s injuries are MIG and that she suffered whiplash and strain/sprain injuries which fall within the definition of a minor injury. It submits that all of the hospital and medical documentation provided by the applicant supports that she sustained a minor injury. The respondent submits that it approved treatment up to the MIG limits and the applicant attended for treatment from July 9, 2020 to January 2021. It further submits that no further treatment plans for physiotherapy or physical treatment outside of the MIG were submitted by the applicant.
15The respondent submits that contrary to the applicant’s submission, she did not continue to visit Dr. Salyani, family doctor, with consistent complaints of pain and recommendations for further therapy. The respondent argues that the applicant visited her family doctor on October 9, 2021, for obesity counselling with no reference to the accident. The respondent states that the applicant did not return to see her family physician until January 26, 2023, and advised that her back pain was improving, and she was returning to work. Her family doctor also noted on February 6, 2023, that Ontario Works forms could not be completed as medically she had no restrictions.
16The respondent states that with respect to the applicant’s ER visit to Headwaters Health Care Centre on July 7, 2022, in the physician’s assessment, the applicant’s self-reported past medical history is listed as “MVC in 2020 and since chronic back pain; bariatric surgery roughly two years ago”. The respondent submits that the applicant was not diagnosed with chronic pain. The respondent states that the applicant was given a prescription for Lyrica and an MRI of the lumbar spine was ordered, but there is no indication that this MRI was ever conducted.
17The respondent relies upon the IE report of Dr. Marchie, physiatrist, dated June 8, 2023, which diagnosed the applicant with soft tissues injuries. In the report, Dr. Marchie notes that the applicant advised that she was independent with her activities of daily living, was mainly babysitting and was cooking and cleaning at a reduced rate.
18The respondent further submits that the applicant does not meet the necessary criteria for chronic pain as set out in the AMA Guides. The respondent argues that the applicant did not submit any treatment plans after October 2020; she was not excessively dependent on healthcare providers or family; she was not referred to any specialists with respect to her accident-related issues; there is no dependence on prescription medications; she reported that she is independent with activities of daily living and there were no restrictions noted by her family physician; and she stopped working at her brother’s restaurant post-accident due to the COVID pandemic after only working there for ten days pre-accident.
19I 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.
20First, while the applicant has directed me to specific CNRs of Dr. Salyani, which note complaints of neck, shoulder and low back pain and recommend further therapy, there is no discussion in these notes of any functional impairment. I find that these records do not 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. I further find that the last CNR provided by the applicant is dated July 22, 2021, and no further records have been provided supporting any ongoing complaints.
21Second, upon review of the CNRs from the applicant’s ER visit to Headwaters Health Care Centre on July 7, 2022, I agree with the respondent that there was no diagnosis of chronic pain. I find that under “Assessment”, the physician noted the applicant’s self-report of her past medical history as “MVC in 2020 and since chronic back pain, bariatric surgery roughly two years ago.” I find that the ER physician advises the applicant to follow up with her family physician with respect to her complaints and recommends an MRI. The applicant has not provided me with any MRI report or evidence that she attended for this MRI.
22Third, the Disability Certificate of Dr. Tarulli lists the applicant’s injuries as a strain and sprain of the cervical spine, lumbar spine, sacroiliac joint, shoulder girdle, ribs and sternum; headache, WAD 2, malaise and fatigue and indicates “acute pain”. There is no mention of a diagnosis of chronic pain and the plan specifically indicates that her pain is “acute”.
23Fourth, upon review of the CNRs from Health Pro Wellness, the applicant has not pointed me to any records which discuss any functional impairments that she may be suffering. While on review of the CNRs, there are subjective reports of continued pain, there is no comment from the treatment providers as to any functional limitations. The only mention of aggravating factors in the CNRs is a note dated October 8, 2020, which states that aggravating tasks include bending forward, lifting from the floor and driving her car. There are no further particulars as to how these aggravating tasks affect her functional abilities or the impact on her daily tasks.
24Fifth, I find that the IE report of Dr. Marchie supports that the applicant suffered soft tissue injuries in the accident. The report notes that the applicant was working at her brother’s restaurant for ten days prior to the accident and shortly after there was a lock down due to COVID and the business shut down. Since the accident, she has reduced cleaning and cooking, and she is mainly baby-sitting. She stated that she is independent with her activities of daily living. While the applicant claims that the assessment was not comprehensive and did not consider her functional limitations, I find as stated above, that the applicant has not provided any medical evidence of her functional limitations. I find that the applicant has not met her onus of demonstrating that she suffered functional limitations as a result of the accident to rebut the conclusions of Dr. Marchie.
25Finally, I find that the applicant does not meet three out of six of the criteria for a chronic pain condition, as outlined in the AMA Guides. The applicant does not claim to use prescription medication or other substances except for Tylenol. She does not regularly visit with healthcare providers as indicated in the CNRs. Thus, I find that she is not dependent on them. None of the medical information before me suggests that the applicant has gained weight or has deconditioned due to disuse. The evidence indicates that the applicant had only worked at her brother’s restaurant for ten days at the time of the accident and stopped working due to COVID shutdowns. She indicated that she has reduced cleaning and cooking, but no further particulars have been provided. There is no evidence she has withdrawn from social milieu and there is no indication of any psychological issues as a result of the accident.
26For the reasons set out above, I find on a balance of probabilities that the applicant does not suffer from a chronic pain condition 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 chronic pain assessment
27As I have found that the applicant remains within the MIG, it is unnecessary for me to consider whether the disputed treatment plan for a chronic pain assessment is reasonable and necessary.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
29For the reasons set out above, I find:
i. The applicant’s accident-related injuries are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plan for a chronic pain assessment;
iii. The applicant is not entitled to interest; and
iv. The application is dismissed.
Released: September 18, 2025
Melanie Malach
Adjudicator