Citation: King v. Unifund Assurance Company, 2026 ONLAT 24-007374/AABS

Licence Appeal Tribunal File Number: 24-007374/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:

Icha King

Applicant

and

Unifund Assurance Company

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

David Carranza, Paralegal

For the Respondent:

Brittany Landry, Counsel

HEARD: In Writing

OVERVIEW

1Icha King, the applicant, was involved in an automobile accident on December 5, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was involved in a motor vehicle accident while the driver of a 2014 Honda CRV traveling westbound on Steels Avenue East in the city of Brampton and came to a full stop at a red right when he was rear-ended. At the time of the accident, the applicant had been working at Viscom Hollow Metal Ltd. as a door assembler for 14 years and returned to work on modified duties. The applicant could not continue working due to the physical demands of the job; in June 2022, he commenced working as a truck driver as this work was less physically demanding.

ISSUES

3The issues in dispute are:

1 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? Note: The parties agree the MIG limits have not been exhausted, with $633.10 remaining as of the hearing date.

2 Is the applicant entitled to the treatment plans/OCF-18s (“plans”) proposed by Promed Rehabilitation Centre, as follows:

i. $1,138.81 ($2,060.00 less $921.19 approved) for a physiotherapy services, in a plan submitted April 18, 2022;

ii. $1,718.00 for chiropractic/physiotherapy services, in a plan submitted October 18, 2022;

iii. Withdrawn;

iv. $1,718.00 for physiotherapy services, in a plan submitted April 6, 2023;

v. $1,485.24 for physiotherapy services, in a plan submitted August 2, 2023;

vi. $1,368.86 for physiotherapy services, in a plan submitted November 9, 2023;

vii. $1,368.86 for physiotherapy services, in a plan submitted March 15, 2024; and

viii. $1,718.00 for physiotherapy services, chiropractic services, and massage therapy services, in a plan submitted December 27, 2022?

3 Is the applicant entitled to $2,799.00 for a physiatry assessment, proposed by Complete Rehab Centre submitted July 24, 2023?

4Is the applicant entitled to $41.93 for medication, submitted on a claim form (OCF-6) submitted September 11, 2024?

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

RESULT

5The applicant’s injuries are not minor as defined in s. 3 of the Schedule and therefore the applicant is not subject to treatment within the MIG limit.

6The applicant is entitled to the treatment plans proposed by Promed Rehabilitation Centre, as follows:

i. $1,138.81 ($2,060.00 less $921.19 approved) for a physiotherapy services, in a plan submitted April 18, 2022;

ii. $1,718.00 for chiropractic/physiotherapy services, in a plan submitted October 18, 2022;

iii. Withdrawn;

iv. $1,718.00 for physiotherapy services, in a plan submitted April 6, 2023;

v. $1,485.24 for physiotherapy services, in a plan submitted August 2, 2023;

vi. $1,368.86 for physiotherapy services, in a plan submitted November 9, 2023;

vii. $1,368.86 for physiotherapy services, in a plan submitted March 15, 2024; and

viii. $1,718.00 for physiotherapy services, chiropractic services, and massage therapy services, in a plan submitted December 27, 2022.

7The applicant is entitled to $2,799.00 for a Physiatry assessment, proposed by Complete Rehab Centre submitted July 24, 2023.

8The applicant is not entitled to $41.93 for medication, submitted on an OCF-6 submitted September 11, 2024.

9The applicant entitled to interest on all overdue payment of benefits.

ANALYSIS

Pre-accident and Post-accident Injuries

10Between 1995 and 2020, the applicant continuously reported his injuries, including constant and severe lower back pain to his former family doctor, Dr. Clement Lam. Due to persistent lower back pain the applicant underwent an MRI on March 12, 2012. The MRI revealed a bulging in the annulus at L2-L3 with mild enhancement in the thecal sac, a broad-based disc protrusion at L3-L4 with significant compression of the thecal sac, a moderate central/paracentral disc herniation at L4-L5, a mild annular bulge at L5-S1 with mild effacement of the thecal sac. The MRI was repeated on June 25, 2012 and the previous findings were confirmed. The OHIP Summary confirms that between March 2, 2019 and October 4, 2021 Mr. King consulted Dr. Lam 23 times, in addition to other various medical practitioners.

11The OHIP Summary confirms that the applicant attended the Brampton HealthPlex Medical Centre Walk-In Clinic on December 5 and 16, 2021 post accident. Dr. Shih became the applicant’s treating physician on February 1, 2022 physician who the applicant visited on four occasions between February and April, 2022; however, the applicant moved on to Dr. Skeete as his family physician on April 12, 2022.

12On April 18, 2022, a spinal assessment was made by Ms. Capistiano, physical therapist (“PT”), at Promed Rehabilitation Centre. The applicant reported having a pre-existing lower back injury, which was aggravated by bending and lifting, and was diagnosed with neck, lower back and hip strain resulting from the motor vehicle accident. On April 25, 2022, Dr. Skeete diagnosed the applicant with chronic back pain, and prescribed antidepressant and pain medication: Cyclobenzaprine, Flexeril, and Ketoralac. The applicant continued to report back pain and shoulder issues to Dr. Skeete in May and July.

13On January 22, 2023, the applicant reported to Dr. Skeete back pain was radiating into his left leg. On February 15, 2023 Dr. Skeete completed an OCF-3 disability certificate and noted functional limitations including prolonged standing, walking, lifting and carrying. On February 23, 2023 the applicant reported to Dr. Skeete continued back pain and was diagnosed with chronic back pain and prescribed Cyclobenzaprine and Flexeril; the applicant also reported a work related injury two weeks ago. The applicant reported similar complaints in April and July.

14The applicant underwent a physiatry assessment by Dr. Wong, physiatrist, report dated September 15, 2023. Dr. Wong opined in his report that as a result of the accident the applicant suffered with myofascial injury of the cervical and thoracic spine and spine paraspinal muscles, post-traumatic headache, insomnia, psychological stress and chronic pain. Dr. Wong further opined that constant pain causes changes to neurotransmitters in the brain heightening pain sensation and can lead to insomnia and stress problems; the combination of these three factors interacting on each other creates a chronic pain cycle according to the 6th Edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, (“Guides”). Dr. Wong noted that soft tissue injuries did not heal normally, and the patient unfortunately developed chronic pain. Dr. Wong recommended a chronic pain program, physiotherapy and an active exercise program; in terms of medication, he recommended antidepressant, analgesic pain medication and trigger point injections.

15The applicant was assessed by Dr. Ghumnan, physician pain management, with report dated October 4, 2024 in which he opined the applicant sustained chronic myofascial pain syndrome (“MPS”), lumbar facet syndrome, sacroiliac joint pain, and lumbar discogenic pain. The applicant was prescribed Gabapentin and recommended aqua therapy and yoga as well as nerve block injections.

16The respondent raised an issue of intervening event as of February 2023, citing a work related injury from a fall resulting in a bump to the head. The respondent had the applicant examined by its assessor, Dr. Chaudhry, General Practitioner, and generated three reports dated May 19, 2023, August 30, 2023 and November 14, 2023. Dr. Chaudhry maintained minor injuries capable of treatment within the limits of the MIG and opined the treatment plans in issue to be neither reasonable nor necessary. Further, Dr. Chaudhry opined that without evidence of physiological, orthopaedic and/or neurological complications, the applicant’s injuries are considered minor injuries per the Schedule definition. Dr. Chaudhry concluded that the applicant presented with symptoms consistent with uncomplicated myofascial sprains and soft tissue injuries that are expected to have physiologically healed at the two year mark post accident and would not benefit from further treatment.

MIG

17I find the applicant’s injuries are not minor and he is removed from the MIG.

18The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

19An 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.

20The onus is on the applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

21The applicant submitted that he sustained injuries that were not minor and, 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 applicant relies upon the clinical notes and records of his family physicians and the report of Dr. Wong, all diagnosing chronic pain as described in paragraphs [9] through [13]; and the analysis of Dr. Ghumnan at paragraph [14].

22Further, the applicant submitted that his pre-existing back pain is not a barrier to removal form the MIG and relies upon the decision of Oussine v. Intact Insurance Company, 2025 ONLAT 23-010080/AABS. The applicant also submitted that chronic pain injuries fall outside the MIG and relies upon Z.L. v. Northridge Personal Insurance Corporation, 2019 ONLAT 18-00577/AABS. The applicant also submitted that the work related injury of a bump to the head resulted in temporary headache that resolved within three days as evidenced in the clinical notes and records of his family physician; the work injury did not break the causational chain as it easily resolved.

23I find the respondent has not established an intervening act. I note that the respondent raises the issue of intervening act in its submissions, specifically, a work-related injury approximately two weeks prior to the applicant’s attendance to his physician on February 23, 2023. I note the respondent made no submissions as to how the intervening act impacted the applicant’s injuries nor the legal implication of it. I further note the applicant submitted the work related injury resulting in headache which resolved.

24The respondent submitted that the applicant sustained only minor injuries that could be treated within the MIG and relies upon the reports of Dr. Chaudhry, who opined the applicant would not benefit from further treatment post injury as the applicant’s injuries did not heal within the normal period of two years post accident.

25I find the submissions of the applicant to be persuasive. I note the applicant consistently reported pain to his family physicians. I find the opinion of Dr. Wong to be specific and well reasoned particularly how changes in neurotransmitters and interplay between the three factors of heightened pain perception, insomnia and psychological stress interplay to establish his diagnosis of chronic pain as defined by the Guides. I find the opinion of Dr. Ghumnan is specific and reliable in his diagnosis of MPS and recommended therapy. I give full weight to the evidence of Dr. Wong and Dr. Ghumnan for the above stated reasons. I note the evidence of Dr. Chaudhry to be incomplete in that he offered no through analysis of Dr. Wong’s finding of chronic pain nor any specific reasoning as to why Dr. Wong’s opinion was lacking or incorrect.

26I find the applicant suffered injuries that were not minor and is removed from the MIG on the basis of chronic pain for the above stated reason.

27I find the respondent has not established an intervening act nor was sufficient evidence and argument presented to adjudicate this issue.

28I find the notices of denial for issues [3]2 i. ii, and iii were not in compliance with the Schedule and were not cured until May 24, 2023. The insurer may not rely upon the MIG until a deficiency with a notice of denial is cured. I find the deficient notices of denial were cured on May 24, 2023.

29Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

30The applicant submitted the treatment plans described in issues [3]2 i, ii and iv were not properly denied by the insurer in accordance with s.38(8) of the Schedule and that the insurer is prohibited from relying upon the MIG for denial of benefits by operation of s.38(11). The applicant submitted the denials were boiler plate in nature and provided no information for the applicant to understand the basis of the denial.

31The respondent submitted that the denial letters were not defective, and the wording of the letter was sufficient to understand the denial: “insufficient compelling evidence of a documented pre-existing injury or condition and insufficient medical documentation to persuade that the accident-related injuries fall outside the MIG definition.”

32The respondent submitted in the alternative, its correspondence of May 24, 2023 included the remarks of Dr. Chaudhry and cured any defect as of that date.

33I find the submissions of the applicant to be persuasive and find the denial letters were deficient and not in compliance with s.38(8) of the Schedule as no information in the denial letter provided information relating the applicant’s injury.

34I also find the submissions of the respondent to be persuasive in that the letter of May 24, 2023 cured the previous deficiencies and the information provided in the findings of Dr. Chaudhry to be specific to the applicant’s injuries.

35I find the insured to be barred from relying upon the MIG for issues [3]2 i, ii and iv and the applicant is entitled to any expenses incurred in relation to these treatment plans between the 11th day after they were submitted by the applicant until May 24, 2023.

Are the Treatment Plans described in Issues [3]2 i, ii, iv and viii Reasonable and Necessary?

36I find the treatment plans described in issues [3]2 i, ii, iv and viii to be reasonable and necessary; issue [3]2 iii was withdrawn.

37Pursuant to section 15 of the Schedule, the respondent is liable to pay for all reasonable and necessary expenses incurred by or on behalf of the insured persons a result of an accident. It is the applicant’s responsibility to prove the medical benefits claimed are reasonable and necessary on a balance of probabilities.

38The applicant submitted he is entitled to the four treatment plans identified as issues [3]2 i, ii, iv and viii because the proposed treatment plans identified the barriers for his recovery, addressed the identified barriers, goals were met to a reasonable degree, received a variety of modalities and adjusted the frequency of treatment based on his needs, as recommended by his family doctor, Dr. Skeete, Ms. Capistiano, PT, and by Dr. Wong, physiatrist. I find the evidence of Dr. Skeete, Ms. Capistiano and Dr. Wong to be specific and directed as to the need for the treatment plans and give it considerable weight.

39The applicant further submitted the goals of the treatment plans were pain reduction, increase in strength, increase range of motion, return to activities of normal living, return to modified work activities, and return to pre-accident functional endurance; the barriers to recovery identified pre-existing upper and lower back pain in the same area affected as a result of the accident and the chronicity of symptoms. Dr. Moriana, chiropractor, stated in his progress report dated October 18, 2022 stating the applicant reported pain and stiffness of varying intensity in his neck, upper and lower back, and rated an overall improvement of 50%; Dr. Skeete recommended continued treatment on January 22, 2023 based upon the applicant’s continuing reported pain. The applicant relies upon T.M. v. Wawanesa Mutual Insurance Company, 2017 ONLAT 17-001614/AABS for his submission that temporary pain relief is a valid goal of a treatment plan. I assign considerable weight to the evidence of Dr. Moriana as it is specific and detailed in addressing the extend of the applicant’s progress and the continued need for the treatment plans.

40The respondent submitted it maintained the MIG on the denial of the four treatment plans and relied upon the reports of Dr. Chaudhry dated May 19, 2023, August 30, 2023 and November 14, 2023

41I note Dr. Chaudhry’s report addressed issues [3]2 ii, iv and viii as a group and he found the applicant’s injuries to be within the MIG; he found the applicant’s injuries had not improved 16 months post accident; and he evaluated the applicant’s recovery to have plateaued. Dr. Chaudhry did not comment upon the progress report of Dr. Morina dated October 18, 2022 which noted an improvement in pain and stiffness to the applicant’s neck, upper and lower back and rated overall improvement of 50%. I further note Dr. Chaudhry listed Dr. Morina’s progress report in his appendix as a document reviewed. I assign less weight to Dr. Choudhry’s evidence as he had the opportunity to address Dr. Morina’s opine and chose not to do so.

42In addition, I note the treatment plan dated October 18, 2022 (issue [3]2 ii), was submitted approximately 10 months after the accident of December 5, 2021. Further, I note the treatment plan of December 17, 2021 (issue [3]2 iv), was submitted approximately 12 months post accident and the treatment plan of March 11, 2023 (issue [3]2 viii), was submitted approximately 14 months post accident; Dr. Chaudhry did not include issue [3]2 i, in his general comments. I also note Dr. Chaudhry’s first report was 16 months post-accident and commented on treatment plans prior to his report by 6 months, 4 months, and 2 months.

43I find the submissions of the applicant to be persuasive, the treatment plans set out reasonable goals that were partly achieved with improvement in pain and stiffness. I previously given weight to the opines of Dr. Skeete, Ms. Capistiano, Dr. Wong and Dr. Moriana and find it to be reliable and supportive of the applicant’s submissions. I find the applicant’s submission that partial relief of symptoms is a valid treatment goal.

44I find on a balance of probabilities that the applicant is entitled to these treatment plans.

Are the Treatment Plans described in Issues [3]2 v, vi and vii Reasonable and Necessary?

45I find the applicant is entitled to the plans described in issues [3]2 v, vi and vii.

46The applicant submitted the treatment plans identified as issues [3]2 v, vi and vii to be reasonable and necessary because the goals of the plans are pain reduction, increase in strength, increase functional endurance to activity, return to activities of normal living, and return to pre-accident work activities; barriers to recovery were identified as chronicity of the injuries and the applicant’s work activities. The treatments included were recommended by his family doctor, Dr. Skeete, Ms. Capistiano, PT, and by Dr. Wong, physiatrist; I have no cause to doubt the veracity of the aligned recommendations of the applicant’s health care professionals; their consensus operates to give the recommendations considerable weight. Further, the applicant submitted the treatment goals were partially achieved with improvement in pain and stiffness as indicated in the clinical notes and records of Dr. Skeete. I note the applicant was compelled to change jobs due to his work activities being incompatible with his injuries.

47The respondent submitted it maintained the MIG on the denial of the three treatment plans and relied upon the report of Dr. Chaudhry dated August 30, 2023. I note the treatment plans herein were submitted on August 2, 2023 (issue [3]2 v), November 9, 2023 (issue [3]2 vi), and March 15, 2024 (issue [3]2 vii). I further note the treatment plan dated August 2, 2023 was contemporaneous with Dr. Choudhry’s review of the subsequent plans were submitted and denied approximately 3 months and 9 months after Dr. Choudry’s review. I note that none of the treatment plans herein were considered in the documentation reviewed section of Dr. Choudhry’s report of August 30, 2023. However, I note the treatment plan described in issue [3]2 v was included in Dr. Choudhry’s report of November 14, 2023 although without specific comment; Dr. Choudhry opine to maintain the MIG as aligned with his previous reports of May 19, 2023 and August 30, 2023.

48I find the submissions of the applicant to be persuasive, I previously found the evidence of the health care professionals recommending treatment to be credible and have given it weight. I find the treatment plans set out reasonable goals that were partly achieved with improvement in pain and stiffness based upon the evidence of the treating healthcare professionals. I find partial improvement in symptoms is sufficient to find the treatment plans are reasonable and necessary. I find the respondent presented no evidence that specifically reputed the treatment plans in dispute herein.

49I find the applicant is entitled to the treatment plans described in issues [3]2 v, vi and vii.

Is the Physiatry Assessment described in Issue [3]3 Reasonable and Necessary?

50I find the applicant is entitled to the proposed physiatry assessment submitted July 24, 2023 and described in issue [3]3 as reasonable and necessary.

51The applicant submitted he is entitled to the physiatry assessment because it was required to evaluate his limitations and functional impairments, and make recommendations for his rehabilitation, as his condition persisted almost two years from the date of the accident. The planned goals of the treatment are to document current function and help improve capabilities, return to activities of normal living, and conceptualize current condition based upon objective dysfunction. The applicant relies upon the clinical notes and records of Dr. Skeete and the treatment goals of Dr Jessa, chiropractor. I find the evidence of Dr. Jessa to be specific, detailed and directed to the injuries of the applicant;10 areas of investigation are noted including the greater priority to cervical, thoracic and lumbar spine; I give her opinion considerable weight.

52The respondent submitted after an insurer’s examination was conducted by Dr. Chaudhry on May 2, 2023 and a paper review of Dr. Skeete’s clinical notes on August 9, 2023 included in Dr. Chaudhry’s report dated August 30, 2023; Dr. Chaudhry opined the assessment was not reasonable and necessary as the applicant suffered soft tissue injuries treatable within the MIG. I note his report included the treatment plan by Dr. Jessa herein in the documentation reviewed section, however Dr. Chaudhry chose not to comment on Dr. Jessa’s findings nor did Dr. Chaudhry specifically consider or comment on the treatment plan herein. I assign Dr, Chaudhry’s evidence less weight because he did not specifically address this treatment plan in his opine, despite it being available to him for consideration and comment.

53I find the submissions of the applicant to be persuasive. I have previously given weight to the evidence of Dr. Skeet and Dr. Jessa that the goals and objectives of the treatment plan to evaluate his limitations and functional impairments are reasonable and necessary to the applicant’s recovery as he has been removed form the MIG; I find these objectives to be reasonable and necessary.

54I find the applicant is entitled to the physiatry assessment described in issue [3]3.

Is the applicant entitled to $41.93 for medication?

55I find the applicant is not entitled to $41.93 for medication, submitted on a claim form (OCF-6) submitted September 11, 2024.

56The applicant submitted that he is entitled to the medication Ketorolac, Naproxen and Lenoltec, as it was prescribed as a direct result of the motor vehicle accident, and it assisted in managing his pain, allowing him to continue working, and performing activities of daily living albeit with difficulties.

57The respondent submitted that the benefit was denied by correspondence dated September 24, 2024, because the applicant has extended health coverage with Claims Secure and must submit the prescription expenses to his extended health coverage before claiming it through auto insurance. Section 47(2), the onus shifts to the insurer to establish payment was reasonably available to the insured person under the other insurance plan.

58I find the submissions of the respondent to be persuasive as the applicant is required to submit the prescription cost to his extended health care coverage. I find there was no issue as to the availability of the extended health care coverage. I note that no submissions were made as to whether the OCF-6 represented the total cost of medication or amounts not covered by the applicant’s extended health plan.

59I find the applicant is not entitled to $41.93 for medication, submitted on a claim form (OCF-6) submitted September 11, 2024.

Interest

60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies to all treatment plans in dispute herein found to be a benefit overdue in payment.

ORDER

61The Tribunal’s final Orders:

1. The applicant’s injuries are not minor as defined in s. 3 of the Schedule and therefore the applicant is not subject to treatment within the MIG limit.

2. The applicant is entitled to the treatment plans proposed by Promed Rehabilitation Centre, as follows:

i. $1,138.81 ($2,060.00 less $921.19 approved) for a physiotherapy services, in a plan submitted April 18, 2022;

ii. $1,718.00 for chiropractic/physiotherapy services, in a plan submitted October 18, 2022;

iii. Withdrawn;

iv. $1,718.00 for physiotherapy services, in a plan submitted April 6, 2023;

v. $1,485.24 for physiotherapy services, in a plan submitted August 2, 2023;

vi. $1,368.86 for physiotherapy services, in a plan submitted November 9, 2023;

vii. $1,368.86 for physiotherapy services, in a plan submitted March 15, 2024; and

viii. $1,718.00 for physiotherapy services, chiropractic services, and massage therapy services, in a plan submitted December 27, 2022.

3. The applicant is entitled to $2,799.00 for a Physiatry assessment, proposed by Complete Rehab Centre submitted July 24, 2023.

4. The applicant is not entitled to $41.93 for medication, submitted on a claim form (OCF-6) submitted September 11, 2024.

5. The applicant entitled to interest on all overdue payment of benefits.