Licence Appeal Tribunal File Number: 23-013356/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:
Pawan Bhayana
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Jonathan Farine, Counsel
For the Respondent: Chris Marshall, Counsel
HEARD: By way of written submissions
OVERVIEW
1Pawan Bhayana, the applicant, was involved in an automobile accident on April 8, 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, BelairDirect 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 (MIG) limit?
ii. Is the applicant entitled to $1,300.00 for Physiotherapy Services, proposed by 7584466 Canada Inc. in a treatment plan/OCF-18 (“plan”) dated November 26, 2021?
iii. Is the applicant entitled to $2,370.85 for Physiotherapy Services, proposed by Activa Kitchener in a treatment plan dated June 30, 2022?
iv. Is the applicant entitled to $2,618.00 for Physiotherapy Services, proposed by Activa Kitchener in a treatment plan dated January 4, 2023?
v. Is the applicant entitled to $2,486.00 for a Chronic Pain Assessment, proposed by Downsview Healthcare Inc. in a treatment plan dated February 24, 2023?
vi. Is the applicant entitled to $17,967.00 for CAT Assessments, proposed by Deena Rogozinsky Therapy in a treatment plan dated October 16, 2023?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits
RESULT
3The applicant remains in MIG.
4As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
5No award or interest is owing.
ANALYSIS
Minor Injury Guideline (MIG)
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) 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.”
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), 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 functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
Chronic Pain with functional impairment
8The applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with functional impairment as a result of the subject accident.
9The applicant argues that he suffers from chronic pain with a functional impairment due to the subject accident. He relies on the clinical notes and records (CNRs) of his family doctor, Dr. Forbes, a letter by Dr. Forbes from June 8, 2023, the CNRs of Activa Clinics, and a chronic pain assessment by Dr. Karmy completed on March 23, 2023.
10I find that the CNRs of Dr. Forbes do not support the applicant’s claim that he suffers from chronic pain with functional impairment. While there is ongoing pain reporting in the CNRs, they are sporadic and are not referred to as chronic. Additionally, there are very few references to any functional impairment that the applicant is facing. For example, on April 12, 2022, Dr Forbes notes that a disc issue seems to be causing the back and some leg pain but does not associate this disc issue to the subject accident. On July 22, 2022, the CNRs note, “back pain has improved, but still notes sharp pain at time, doing core strengthening at physio and going to gym”. On November 21, 2022, the applicant reported pain that was associated with lifting weights, not the subject accident. On March 21, 2023 the lower back pain is attributed to “went dancing, got a bad pain flare for a month”. During this visit, the lower back pain that is attributed to dancing is also reported as the source of issues of pain at work, sleep issues, and limited activity.
11Medical imaging in the CNRs by Dr. Forbes, including an MRI from June 3, 2022, found a mild broad-based disc bulge at the L3-4 and L4-5. L4-5 had an annular tear with paraspinal soft tissue unremarkable. The evidence also includes an X-Ray and Ultrasound of the applicant’s right hip from May 14, 2022, both of which provided the impression of normal examination.
12I find that the letter submitted by Dr. Forbes on June 8, 2023, in which he diagnoses chronic pain related to the subject accident is contradictory to the notes in Dr. Forbes’ CNRs. In the letter, Dr. Forbes states, “chronic pain syndrome with referred burning pain in hands and feet as well as the back, hip, and neck pains. These is a direct result of the motor vehicle accident.” This is contradicted in the CNRs where Dr. Forbes states that the back pain was a result of a disc issue, not the subject accident. Dr Forbes further states “He has been unable to return to previous levels of physical activities e.g. the gym, housekeeping, cooking, social activities, and stopped, badminton, gym, and biking”, yet the CNRs note on multiple occasions that the applicant is actively attending the gym. There is also no mention in the CNRs of any issues with badminton, housekeeping, cleaning, or social activities that are attributed to the subject accident. As such, I put little weight on the letter of June 8, 2023 because the conclusion that “there is no doubt in my mind that the applicant’s condition is directly related to the subject accident” is not supported by the same doctor’s own contemporaneous CNRs.
13I also place little weight on the chronic pain assessment by Dr. Karmy. Dr. Karmy does diagnose the applicant with chronic pain, but Dr. Karmy’s report itself featured reporting that is inconsistent with other medical evidence. Dr. Karmy reports the applicant has mild traumatic brain injury, chronic headaches and mood disorders that are not found in any other medical evidence. Dr. Karmy also claims that the applicant is on accommodations and reduced function at work, but no evidence is provided to support either of those claims. Additionally, Dr. Karmy’s indication that the applicant suffers driving anxiety is contradictory to other reporting in the submitted medical evidence that the applicant drives an hour both ways to and from work. Finally, Dr. Karmy indicates that the applicant suffers from psychosomatic symptoms that involve both mind and body, but I am not directed to any psychological testing, or psychological complaints registered by the applicant in other submitted evidence.
14While not incorporated into the Schedule, the Tribunal has found the American Medical Association (AMA) Guides to assessing chronic pain to be a useful analytical tool. According to the Guides, a diagnosis of chronic pain requires someone to meets at least three of the six criteria. The six criteria are:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substance.
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 contacts.
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 incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
15Dr. Karmy diagnosed the applicant with four of the six criteria, namely:
i. Criterion 2, excessive dependence, due to his dependence of healthcare professionals and roommate for help with housekeeping. However, in my view, the submitted evidence does not support a finding of excessive dependence on healthcare professionals, and there is no objective evidence provided to support dependence on his roommate, only subjective reporting.
ii. Criterion 3, physical deconditioning, due to limited lifting, standing and walking tolerances, and unable to resume usual lifestyle activities. However, I find Dr. Karmy’s conclusion is contradicted by the CNRs of Dr. Forbes that note on multiple occasions that the applicant has returned to the gym, in other reporting that he drives and hour each way to work, and there is no objective reporting about any work related issues.
iii. Criterion 4, social withdrawal, due to social decline and reduced social and leisure activities. I note, however, that no objective reporting is included in Dr. Karmy’s report that would support this claim.
iv. Criterion 6, psychosocial sequelae due to the applicant developing anxiety and depressive symptoms. I also find that this claim is not supported by any objective reporting in Dr. Karmy’s report, or by any other submitted evidence.
16The respondent submits that the applicant has not met his onus to prove that he suffers from chronic pain with a functional impairment. They rely on an Insurer’s Examination (IE) by Dr. Naiman, physician, completed on January, 27, 2023, and IE and Physician Addendum Report by Dr. Khaled, MD, completed on April 21, 2023, and June 1, 2023.
17I find that the IE by Dr. Naiman, does not support the applicant’s claim of chronic pain. Dr. Naiman completed a document review and a physical examination that was unremarkable. The doctor notes that from a functional standpoint, he did not find objective evidence of any musculoskeletal functional impairment, and that from a physical perspective the applicant’s injuries would be consistent with the MIG. From a functional perspective, he notes that the applicant reported that he works 40 hours per week and has a 1 hour drive each way to work. Additionally, he took one week off work after which he returned to his pre-accident duties.
18I find that the IE by Dr. Khaled does not support the applicant’s claim of chronic pain with a functional impairment. Dr. Khaled concluded after his physical examination and document review that the applicant suffers from uncomplicated soft tissue injuries only without evidence of significant orthopaedic or neurological sequela.
19I place significant weight on the addendum report by Dr. Khaled because I find that it is consistent with the preponderance of the evidence before me. Further, in his addendum, Dr. Khaled specifically addresses Dr. Karmy’s chronic pain assessment. Dr. Khaled disagrees with Dr. Karmy’s findings, saying: “I note that he does not identify any objective evidence of ongoing subject accident-related impairment. He also ascribes numerous ongoing symptoms and reported disabilities to the subject accident when the objective data, clinical history, and pattern of recovery for these types of myofascial injuries do not support this finding.” Additionally, Dr. Khaled adds, “Unfortunately, Dr. Karmy’s findings are based solely on the claimant’s subjective reports with the absence of any objective findings that provide a causal association with the symptoms and the subject accident. There’s also a paucity of objective data confirming any ongoing impairment”.
20I find the applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with functional impairment as a result of the subject accident. While the applicant has a diagnosis of chronic pain from his family doctor and Dr. Karmy, I place little weight on this evidence for the reasons set out above. In sum, Dr. Karmy’s assessment in particular contained reporting that was not supported by any objective evidence, and was based on symptoms that were not reported in any other medical evidence. Dr. Forbes’ letter was not consistent with the contemporaneous reporting from his own CNRs. As set out above, I place more weight on Dr. Khaled’s review of Dr. Karmy’s report as this evidence was more consistent with the preponderance of evidence before me and noted the level of subjective reporting that lacked substantiation by objective findings.
21The applicant does not suffer from chronic pain with functional impairment that warrants removal from the MIG.
22As the applicant has been found to remain in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is owing.
Award
24The 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. As no benefit payments have been unreasonably withheld or delayed, no interest is owing.
ORDER
25I find that:
i. The applicant remains in MIG.
ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
iii. No award or interest is owing
iv. The application is dismissed.
Released: September 29, 2025
__________________________
Robert Rock
Adjudicator