Licence Appeal Tribunal File Number: 24-004554/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:
Semi Murtonen
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Jun Ki Lee, Counsel
For the Respondent:
Kamil Podleszanski, Counsel
HEARD: In Writing
OVERVIEW
1Semi Murtonen, the applicant, was involved in an automobile accident on December 9, 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. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $47.04 per week from November 3, 2023 to date and ongoing?
ii. 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 been exhausted.
iii. Is the applicant entitled to $612.00 ($1,669.79 less $1,057.79 approved) for chiropractic services, proposed by Optimum Health in a treatment plan/OCF-18 (“plan”) dated submitted on March 16, 2023 and denied on March 21, 2023?
iv. Is the applicant entitled to $2,200.00 for a dental/TMJ assessment, proposed by Prime Medical Management Inc. in a treatment plan submitted on January 24, 2024 and denied on February 7, 2024?
v. Is the applicant entitled to $1,334.90 for broken sunglasses and personal items, submitted on a claim form (OCF-6) submitted on January 22, 2023 and denied on February 28, 2023?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to an income replacement benefit.
4The applicant’s injuries fall within the MIG.
5As the applicant is in the MIG, I do not need to consider if any of the disputed treatment plans are reasonable and necessary.
6No interest is payable.
7This application is dismissed.
ANALYSIS
The applicant is not entitled to an IRB
8I find that the applicant is not entitled to an IRB.
9To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
10The applicant submits that she was self employed at the time of the accident and that the injuries sustained in the accident rendered her unable to continue her self-employment as her physical and mental disabilities from the accident render her unable to perform the tasks of her self-employment. The applicant submits that at the time of the application she was working full-time in her farm-to-table business. This involved growing, baking, producing and packaging food products.
11In support of this, she notes that her “treating psychiatrist”, Dr. A. Seif, confirmed that her injuries result in a substantial inability to perform the essential tasks of her employment.
12The respondent submits that the assessments of Dr. M Aiello, physician, and Mr. L. Grimaldi, kinesiologist, and Dr. T Ricci, psychologist, show that the applicant is not substantially unable to perform the essential tasks of her employment as they show that the applicant demonstrated her function at a medium physical demand characteristic and sustained minor injuries as a result of the accident.
13Dr. Seif assessed the applicant as detailed in a report dated September 18, 2024. It is noted that Dr. Seif did not meet with the applicant. The applicant met virtually with Mr. D. Ross (registered social worker) who interviewed the applicant and administered the psychometric testing. Dr. Seif then made her diagnosis based on the results of the testing and a review of the notes taken by Mr. Ross.
14Firstly, I put little weight on the report of Dr. Seif because, contrary to the applicant’s submissions, she is not the applicant’s treating psychiatrist. In fact, there is no evidence before the Tribunal that Dr. Seif has ever met with the applicant.
15In the report, Dr. Seif does not identify any of the essential tasks of the applicant’s self-employment or give any explanation as to why she is unable to perform them.
16Rather, Dr. Seif simply writes:
Ms. Murtonen has been unable to continue developing her organic farm-to-table business, which is located on the family’s farm. Physical and mental disability has affected her work performance, resulting in the closure of her business. The unknown time of her recovery hinders her ability to project a long-term back-to-work re-entry plan for either self-employment and employment.
17Secondly, this contrasts with the opinion of Dr. Ricci who assessed the applicant on October 11, 2023. Dr. Ricci found that the applicant did not meet the criteria for an accident-related psychological diagnosis. Dr. Ricci states that it her opinion that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment.
18As Dr. Seif has never met the applicant, I give greater weight to the opinion of Dr. Ricci who personally assessed the applicant. I find that, on the balance of probabilities, the applicant has not proven a substantial inability to perform the essential tasks of her pre-accident self-employment due to a psychological injury sustained in the accident.
19Mr. Grimaldi assessed the applicant for a Functional Capacity Evaluation on July 18, 2023.
20He noted that her job, “Roadside Produce Stand Owner and Operator,” involved the following tasks:
i. Constant:
a. Handling;
ii. Frequent:
a. Standing;
b. Walking;
c. Cervical Mobility;
d. Forward Reaching; and
e. Stooping
iii. Occasional:
a. Sitting;
b. Overhead reaching;
c. Crouching,
d. Floor to waist height lifting (50lbs);
e. Waist to shoulder height lifting (10lbs);
f. Carrying (50lbs);and
g. Pushing and pulling (50lbs);
21He noted that the applicant demonstrated function at the Medium Physical Demand Characteristic.
22Dr. Aiello then performed a file review of Mr. Grimaldi’s functional capacity evaluation along with his previous assessment and Dr. T. Ricci’s psychological assessment of October 11, 2023.
23Dr. Aiello found that the applicant does not suffer a substantial inability to perform the essential tasks of her pre-accident employment as a result of the accident, reiterating that she suffered from minor injuries with minor impairments.
24The applicant submits that she is unable to concentrate for extended periods and cannot physically perform tasks that involve lifting, bending, or remaining seated or standing for long durations. I note that submissions are not evidence, and the applicant has not pointed me to any medical records which show that she cannot perform the essential tasks of her self employment.
25As Dr. Seif’s report is the only piece of evidence adduced to support the applicant’s claim she is entitled to an IRB, I find that she has not met her onus to prove that, on a balance of probabilities, she suffers a substantial inability to perform the essential tasks of her self employment.
The applicant’s injuries are minor per s.3 of the Schedule
26Section 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.”
27An 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.
The applicant’s dental injuries are minor in nature
28The applicant submits that she suffers from a TMJ disorder sustained in the accident. In support of this, she points to assessment reports of Dr. L. Teger (general dentist) and Dr. H. Dahan (general dentist).
29The respondent points to s.44 assessment reports of Dr. M. Aiello (physician) and Dr. W. Butterfield (general dentist). The respondent submits that TMJ disorders are sequela of a whiplash injury and therefore are a minor injury under the Schedule.
30Dr. Teger assessed the applicant on March 12, 2024. He found that the applicant had suffered crepitus of the TMJ, articular disc disorder of the TMJ and joint stiffness of the TMJ. However, he does not address the MIG or make a finding on whether these injuries meet the definition of a minor injury under the guideline.
31Dr. Dahan assessed the applicant on November 27, 2023. He found that the applicant suffers from myofascial pain of the masticatory muscles (bilateral), articular disc disorder of bilateral TMJ without reduction (right side), articular disc disorder of the TMJ with reduction (left side), arthralgia of temporomandibular joint (right side), deviation in opening and closing of the mandible, sleep related bruxism and limited mandibular range of motion. Dr. Dahan did not reference the motor vehicle accident or the MIG.
32Dr. Aiello assessed the applicant on May 12, 2023. He diagnosed the applicant with a bilateral TMJ strain as a direct result of the accident. He notes that such a strain meets the criteria of a minor injury as defined by the MIG.
33Dr. Butterfield assessed the applicant on May 6, 2024. Dr. Butterfield diagnosed the applicant with bilateral capsulitis of the TMJ, bilateral anterior disc displacement of the TMJ and muscular myalgia. However, Dr. Butterfield notes that the relationship between whiplash type injuries and TMJ disorders is well documented and is, in his opinion, responsible for the applicant’s TMJ issues. Dr. Butterfield found that due to this relationship, the applicant’s TMJ issues fit the definition of a minor injury under the MIG.
34Dr. Treger attributes the resulting dental issues (fractured teeth) that the applicant has experienced as sequalae to the TMJ disorders. Whereas Dr. Butterfield could not assign any accident-related liability to the fractured teeth.
35All four assessors who opined on the applicant’s TMJ issues had similar observations and made similar diagnosis. It is agreed that the applicant suffers from a TMJ issue that was the result of the accident. However, when setting the context of such an injury, only Dr. Aiello and Dr. Butterfield commented on the relationship between such an injury and the MIG.
36The respondent submits Lagani v Allstate Insurance, 2023 CanLII 122944 (ON LAT) (“Lagani”) as further support for its position that a TMJ disorder is associated sequalae to a minor injury. In Lagani, the Tribunal found that the applicant has not provided evidence that the applicant’s TMJ issues were not captured under the MIG definition.
37The fact pattern in Lagani is very similar to the case before me. In Lagani, Dr. Treger assessed the applicant, found the applicant suffered from TMJ issues but did not provide evidence that the TMJ issues warranted removal from the MIG.
38The applicant has not submitted any authorities which support the position that a TMJ disorder is not a minor injury as defined by the Schedule.
39The evidence before me tells the same story: that while a TMJ disorder is observed by experts, no evidence has been provided that the TMJ disorder warrants removal from the MIG.
40I am therefore persuaded by Lagani and find that the applicant in this case has not met their burden to prove that her TMJ issues warrant removal from the MIG.
41As a result, on a balance of probabilities, I find that the applicant remains within the MIG.
The applicant has not proven a psychological diagnosis
42The applicant submits that she was diagnosed with post-traumatic stress disorder (“PTSD”) and anxiety by Dr. S. Fallahian (physician) in a clinical note dated August 30, 2024. The applicant further submits that Dr. A. Seif (psychiatrist) diagnosed her with major depressive disorder, somatic symptom disorder and specific phobia – vehicular, in an assessment conducted on September 16, 2024.
43The respondent submits that the diagnosis of Dr. Seif was based on psychometric tests that are self report measures and questionnaires without an indication of validity testing. The respondent further submits the assessment report of Dr. T. Ricci (psychologist) dated October 11, 2023 who found that there is no evidence of symptoms meeting the criteria for a psychological diagnosis.
44Dr. Fallahian saw the applicant on August 30, 2024.
45In this note, Dr. Fallahian notes that the applicant exhibits symptoms of PTSD, anxiety, chronic body pain, post concussion syndrome and trigeminal neuralgia. However, there is no mention of Dr. Fallahian making a formal diagnosis of these conditions. Dr. Fallahian recommends further assessments, specifically, psychiatric, concussion, chronic pain management and neurological assessments.
46As Dr. Fallahian has not made a formal diagnosis of a condition which is outside of the MIG and simply recommended further assessment, I am not swayed by this evidence.
47This note indicates symptomology but indicates further assessments were needed, which I find is not strong evidence, particularly in light of Dr. Ricci’s report who found no evidence of a diagnosable psychological impairment.
48I have previously afforded Dr. Seif’s report little weight, as she did not meet with the applicant. She wrote a report based on the observations of Mr. Ross and the results of psychometric testing.
49This is contrasted with the assessment of Dr. Ricci. Dr. Ricci assessed the applicant on October 11, 2023. Dr. Ricci assessed the applicant personally, as opposed to having a colleague assess the applicant and diagnosing based on notes.
50Both practitioners used the Beck Depression Inventory -II (“BDI-2”) and the Beck Anxiety Inventory (“BAI”). Dr. Seif found that the applicant’s scores indicated a severe level of depression and a severe level of anxiety, whereas Dr. Ricci found that the applicant’s scores indicated a mild level of depression and a mild/moderate level of anxiety.
51However, as mentioned, Dr. Ricci formulated her opinion and findings based on her own direct observations of the applicant in conjunction with the scores on the psychometric testing. Whereas Dr. Seif’s opinion was formed in the context of the psychometric testing and Mr. Ross’ notes and descriptions of the interview with the applicant.
52For this reason, I assign more weight to the report of Dr. Ricci and find on a balance of probabilities, that the applicant has not suffered a psychological impairment that would result in removal from the MIG.
The applicant has not proven chronic pain with an associated functional impairment
53The applicant submits an assessment of Dr. T Gregory (physiatrist) as evidence that she suffers from chronic pain with a functional impairment.
54The respondent submits that the s.44 assessment report of Dr. Aiello shows that the injuries sustained in the accident fall under the MIG.
55Dr. Gregory assessed the applicant on November 23, 2023. He found that the applicant suffers from chronic myofascial pain syndrome, cervical and lumbar facet syndrome, sacroiliac joint pain, cervical and lumbar discogenic pain, cervical, foraminal and spinal stenosis, chronic shoulder pain with referral to the neck and chronic hip pain with referral to the low back.
56Dr. Gregory notes that the functional impairment is the applicant’s inability to sleep through the night, noting that her pain routinely wakes her up after 3-4 hours.
57Dr. Aiello diagnosed the applicant with cervical muscle strain, lumbar muscle strain, a left-hand contusion and a TMJ strain, and noted that the injuries sustained were included in the definition of a minor injury. Dr. Aiello noted the applicant’s prognosis for recovery was excellent.
58I note that Dr. Gregory has not mentioned or addressed the applicant’s TMJ issue during the assessment. This contradicts the clinical notes and records of Dr. Reichmann, the applicant’s family physician, who documented that the applicant’s pain complaints were primarily TMJ related on April 24, 2023 and April 5, 2024.
59As Dr. Aiello had a more complete picture of the applicant’s condition due to the documents he reviewed, and with his analysis of the injuries being corroborated by the contemporaneous clinical notes and records of Dr. Reichmann, I give more weight to his opinion. For this reason, I find on a balance of probabilities that the applicant most likely did not suffer from chronic pain with a resulting functional impairment as a result of the accident.
60I find on a balance of probabilities that the applicant has not established that they have chronic pain with a functional impairment that warrants removal from the MIG.
It is not necessary to consider if any of the disputed treatment and assessment plans are reasonable and necessary
61As the applicant is in the MIG, I do not need to consider if any of the disputed treatment and assessment plans are reasonable and necessary.
Interest
62As no benefits are overdue, there is no entitlement to interest.
ORDER
63For the reasons above:
i. The applicant is not entitled to an income replacement benefit.
ii. The applicant’s injuries fall within the MIG.
iii. As the applicant is in the MIG, I do not need to consider if any of the disputed treatment plans are reasonable and necessary.
iv. No interest is payable.
64The application is dismissed.
Released: February 17, 2026
Julian DiBattista
Vice-Chair
