Citation: Seaforth v. TD General Insurance Company, 2025 ONLAT 24-007972/AABS

Licence Appeal Tribunal File Number: 24-007972/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:

Colin Seaforth

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATORS:

Dagmara Szczudlo

Gurleen Thethi

APPEARANCES:

For the Applicant:

Murad Huseynov, Paralegal

For the Respondent:

Priyanka Monpara, Counsel

Court Reporter:

Bruce Porter

HEARD by Videoconference:

May 5 and 6, 2025

OVERVIEW

1Colin Seaforth, the applicant, was involved in an automobile accident on November 7, 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 the respondent, TD General 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 attendant care benefits ("ACBs") in the amount of $1,527.33 per month from December 24, 2022, to date and ongoing?

iii. Is the applicant entitled to $1,696.26 for occupational in home therapy assessment, proposed by Function Ability Rehabilitation Services in a treatment plan/OCF-18 ("plan") dated November 25, 2022?

iv. Is the applicant entitled to $2,100.00 for a speech pathology assessment, proposed by Function Ability Rehabilitation Services in a plan dated November 23, 2022?

v. Is the applicant entitled to $3,990.56 for occupational therapy services, proposed by Function Ability Rehabilitation Services in a plan dated December 24, 2022?

vi. Is the applicant entitled to $6,901.69 for physiotherapy services proposed by Canadian Active Rehabilitation Centre in a plan dated January 9, 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?

3At the hearing, the parties agreed that MIG is an issue in dispute and was omitted from the Case Conference Report and Order ("CCRO") released November 20, 2024. Given the consent of the parties, we agreed to add MIG as an issue in dispute, which is reflected above.

RESULT

4The applicant sustained minor injuries as defined under the Schedule in the accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.

5The applicant is not entitled to ACBs.

6As the applicant is subject to the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary.

7The respondent is not liable to pay an award.

8As no benefits are payable, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

PROCEDURAL ISSUES

9At the outset of the hearing, the following three procedural issues were addressed.

Motion to quash a summons for Ms. Diana Wey

10At the onset of the hearing, we declined the respondent's request to quash the summons for Ms. Diana Wey which was issued by the Tribunal on March 18, 2025 at the request of the applicant.

11On April 29, 2025, the respondent filed a written motion to quash the summons of Ms. Wey. Alternatively, the respondent sought to substitute Ms. Wey with Ms. Stinson. The respondent submitted that Ms. Wey is the current adjuster on the file but is currently out of town. The respondent further submitted that Ms. Stinson was the adjuster at the beginning of the file and would be more helpful as she has authored all the denials in this claim.

12The applicant opposed the motion and submitted that Ms. Wey, the current adjuster, was properly summoned and would be the most appropriate to testify as she would be most up to date on this file. Further, the applicant submitted that Ms. Wey is the applicant's witness, and it would be inappropriate to quash a summons and impose another witness on a party due to a scheduling conflict.

13After considering the submissions of the parties, we denied the respondent's request to quash the summons and substitute another witness in lieu of Ms. Wey. We find that the applicant requested a summons for Ms. Wey and the summons was properly served on Ms. Wey.

Request to increase hearing length by additional day

14We also denied the respondent's oral motion to increase the length of the hearing by an additional day to accommodate the testimony of the adjuster, Ms. Wey. The applicant was opposed to the request and submitted that he is not available outside of the scheduled hearing dates. We did not permit an extension of hearing days based on the schedule of a witness who was summoned well in advance of the hearing. A recess was provided for the respondent to contact Ms. Wey and arrange a suitable time for her to testify within the original hearing dates. Ms. Wey testified on the first day of the hearing.

Motion to exclude I.E. Reports

15We also declined an oral motion by the applicant to exclude the insurer's examination (IE) reports of Dr. Nagib Yahmad, neurologist, Dr. Marjan Saghatoleslami, psychologist, and Dr. David Berbrayer, physiatrist, all dated December 12, 2023.

16The applicant submitted that CNRs and draft reports from these insurer's examinations were not provided as per the CCRO and therefore the final reports should not be admitted as evidence. The applicant further submitted that if the reports are admitted, little to no weight should be given to them on the basis that Dr. Yahmad and Dr. Saghatoleslami are not scheduled to testify at the hearing and the applicant will not have an opportunity to confirm the veracity of their reports. The applicant argued that there are discrepancies in the final reports, that he is prejudiced without these productions and required authorizations to release medical information were in fact provided to the respondent. The applicant relies on an email dated December 19, 2024, which contained this authorization.

17The respondent submitted that the applicant was advised on two occasions that the required authorizations to release medical information from insurer examination assessors were not received, and once the required authorization was provided by the applicant on the first day of the hearing, the full files from CIRA Health Solutions (provider of independent medical evaluations) were provided. The respondent further submitted that the relief the applicant is seeking is not appropriate and full weight should be assigned to all insurer examination reports.

18Pursuant to Rule 9.3 of the Licence Appeal Tribunal Rules, effective August 21, 2023, if a party fails to comply with any Rules, directions or order with respect to disclosure or inspection of documents or things, that party may not rely on the document or thing as evidence without the consent of the Tribunal.

19While we agree that the respondent did not file the CNRs and draft reports in keeping with the CCRO, we denied the applicant's request to exclude the reports from evidence because we find that the respondent's failure to provide the applicant with the CNRs and draft reports is not material to whether the final reports are admitted into evidence. Pursuant to s. 15 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, a tribunal may admit into evidence any relevant document or thing. Since we found that the applicant did not meet his onus, there was no need to consider the respondent's reports.

ANALYSIS

Background

20The applicant was involved in an automobile accident on November 7, 2022. He was a pedestrian crossing the street when a car travelling approximately 10 km/hr hit the right side of his body. He was confused and shaking as a result of the accident and was transported by emergency personnel to Centenary Hospital where he reported lower extremity pain on the right side of the body. Medical records from the Scarborough Health Network document that there was no fall to the ground, no head injury or obvious sign of trauma. The applicant was not admitted to hospital and was released with prescriptions for pain medication and a 3-day medical leave from work.

Applicability of the MIG

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

21We find that the applicant has not demonstrated that he suffers from a psychological impairment or chronic pain that warrant his removal from the MIG for the following reasons.

22Section 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."

23An 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, or, if they provide evidence of an injury that is not included in the minor injury definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

24It is the applicant's burden to establish entitlement to treatment beyond the $3,500.00 limit on a balance of probabilities.

25The applicant argues that his accident injuries resulted in both chronic pain and psychological impairment that warrant him being removed from the MIG.

Psychological impairment

26The applicant submitted that the basis of removal from the MIG are psychological injuries including anxiety, low mood, and memory/concentration problems arising from the accident. The applicant submits that since the accident, he is struggling with work and his romantic relationship broke down. He submits that he was off work for several months after the accident and memory and concentration problems continued once he returned to work leading to disciplinary warnings from his employer.

27He relies on the oral testimony from his family physician Dr. Dan Yeung, various clinical notes and records, and employment records to support his argument that he should be removed from the MIG.

28The respondent submits that the applicant was involved in a low impact collision in which he did not fall, did not hit his head, nor lose consciousness. The respondent argues that although Dr. Yeung documented subjective self-reports from the applicant in his records, there is no formal psychological diagnosis, no counselling, nor plans submitted for psychological treatment which would support removal from the MIG on the basis of a psychological injury.

29The respondent relies on reports from Dr. Marjan Saghatoleslami, psychologist, and Dr. Nagib Yahmad, neurologist, dated December 12, 2023. Dr. Saghatoleslami concluded that from a psychological perspective, the applicant's symptom presentation does not meet the diagnostic criteria for any mental health disorder and he did not suffer from psychological impairment as a result of the motor vehicle accident that is significant enough to require psychological intervention Dr. Yahmad concluded that there is no specific neurological diagnosis that was detected from the strict physical neurological perspective and as a direct result of the index accident.

30The applicant relies on references to anxiety and flashbacks in CNRs from Dr. Yeung to support removal from the MIG. Although Dr. Yeung's notes mention anxiety, his oral testimony confirmed that he was simply documenting reports from his patient and did not make a formal diagnosis of anxiety or any other psychological/psychiatric illness, as he prefers to rely on physicians who specialize in these areas. According to testimony from Dr. Yeung, the applicant did not have any prior diagnoses of anxiety before the accident. A review of CNRs from Dr. Yeung reveals that he made a referral to a psychologist on November 9, 2022, however, the evidentiary record does not include records from a treating psychologist based on this referral and we are unable to conclude that subsequent treatment or diagnosis from a psychologist occurred. According to the CNRs, Dr. Yeung also referred the applicant to a neurologist on November 20, 2024, two years after the accident. During the hearing he testified that there is a pending referral to a psychiatrist, however, due to wait times the requested appointment has not been scheduled yet.

31We do not give weight to the psychologist, psychiatrist, and neurologist referrals by Dr. Yeung because the applicant did not file evidence that referral appointments were scheduled and/or attended.

32We acknowledge that Dr. Yeung testified that he has to be an advocate for his patients, and that he has a duty to limit referrals. The applicant further submitted that family doctors wait until the last moment, where symptoms warrant a referral. We find, however, that Dr. Yeung was documenting the applicant's self-reports and did not diagnose the applicant as he preferred to leave that to specialists. While a referral is pending due to wait times, the only evidence before us is that a referral was made, and we conclude that there is no diagnosis and no other supportive evidence in the meantime. We find that reporting of psychological symptoms to Dr. Yeung and pending referrals to mental health specialists do not meet the onus of proof that the applicant sustained a psychological impairment as a result of the accident which prevent him from recovering within the MIG.

33We find on a balance of probabilities that the applicant has not demonstrated that he sustained a psychological injury that warrants removal from the MIG.

Chronic Pain

34For the reasons that follow, we find that the applicant is not suffering from chronic pain syndrome with functional impairment that warrants removal from the MIG.

35The applicant submits that he has chronic pain in his neck and low back and relies on his oral testimony, the testimony of Dr. Yeung, and his reports to insurer's examination assessors that he is in pain as a result of the accident. The applicant submits that in addition to using a topical cream on a regular basis, he has been taking Aspirin, Naproxen, and Baclofen to manage his chronic pain.

36The respondent submits that the applicant continues to take an 81 mg dose of Aspirin, a dosage level that is not deemed to be an effective pain killer and is more likely being used as a blood thinner, and this dosage has not been adjusted despite the accident. The respondent denies that the applicant's claims of chronic pain should remove him from the MIG and relies on the oral testimony and s. 44 report of Dr. Berbrayer who concluded that his "injuries from a musculoskeletal aspect do meet the criteria of a minor injury as described in the Minor Injury Guideline". Dr. Berbrayer also testified that the applicant's pain complaints are not related to organic physical injuries and there is no objective scientific evidence of physical injuries based on the results of his CT scan and x-rays.

37We are not persuaded by the applicant's submissions that he suffers from chronic pain. The applicant reported headaches, shoulder pain, and neck strain complaints to his family physician, both before and after the accident. Specifically, in May 2020, CNRs from Scarborough Health Network indicate that Baclofen and Naproxen were prescribed during an emergency room visit for lower extremity pain on the date of the accident, however, Dr. Yeung's CNRs do not include references to continued prescriptions for this medication.

38The applicant also relies on a drug summary provided by his collateral benefits provider Manulife from March 14, 2022, to April 14, 2023. A review of this prescription summary shows sporadic prescriptions for pain relievers in March 2022 (before the accident) and in March/April 2023 after the accident. According to CNRs, Dr. Yeung consistently prescribed the applicant 81 mg aspirin and Dan Compound, a topical anti-inflammatory medication intended for soft tissue injuries, which the applicant used for back pain prior to the accident. After the accident, Dr. Young prescribed the same treatment.

39We are not convinced that the pain reported by the applicant rises to the threshold of chronic pain with functional impairment because we see no change with respect to the treatment plan for pain recommended by Dr. Yeung after the accident, nor persuasive evidence of functional impairment as a result of pain.

40In this regard, we acknowledge the applicant's testimony about his challenges at work after the accident and documented in his employment file. While we sympathize with the challenges of returning to the structure of work after an extended absence, as noted above, we find that the applicant has not established that he has accident-related chronic pain.

41On a balance of probabilities, we find that the applicant has not met his evidentiary burden of showing that he has a chronic pain condition with functional impairment that would preclude recovery if subject to the MIG limit.

Attendant Care Benefit

42We find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to ACBs.

43Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care benefit services provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs ("Form-1").

44The applicant did not make any specific submissions with respect to ACBs during the hearing, however, he submitted an In-Home Functional Assessment and Assessment of Attendant Care Needs report completed by Nir Tamir, occupational therapist dated December 24, 2022 to support entitlement to ACBs. In his report, Mr. Tamir concluded that the applicant is entitled to ACBs of $1,527.33 per month to provide assistance in routine personal care, basic supervisory functions, and complex functions.

45The respondent did not make any specific submissions with respect ACBs during the hearing.

46The applicant relies on an Assessment of Attendant Care Needs ("Form-1"), submitted as Exhibit 12, tab 24, pg. 390 in the Applicant's hearing brief.

47We find that the applicant did not meet the burden of proof to demonstrate that ACBs were required or incurred due to impairments caused by the accident. We are not persuaded by the conclusions reached by Mr. Tamir in his report because we find that they are not consistent with the preponderance of the respondent's evidence which shows that the applicant sustained soft tissue injuries, is able to perform routine personal care, feeding, and is independent in mobility based on the findings of Dr. David Berbrayer who noted the applicant "did not require any crutches or any canes. He was not wearing any braces or any supports and was an independent ambulator" in his report dated December 12, 2023. We prefer evidence from Dr. Berbrayer over the conclusions reached by Mr. Tamir because his conclusions were supported by testimony and subject to cross-examination whereas Mr. Tamir did not testify at the hearing. Further, the applicant did not make any oral submissions with respect to ACBs, nor was ACB entitlement supported by any additional medical evidence aside from Mr. Tamir's Form-1.

48We find on a balance of probabilities that the applicant is not entitled to ACBs.

49As the applicant is in the MIG, it is not necessary to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

50As no benefits are payable, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

51As there is no evidence of unreasonably withheld or delayed benefits, we find that the respondent is not liable to pay an award under s. 10 of Reg. 664

ORDER

52The applicant sustained minor injuries as defined under the Schedule in the accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.

53The applicant is not entitled to ACBs.

54The respondent is not liable to pay an award.

55The applicant is not entitled to interest.