Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-002532/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:
Edis Berisha
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR: Kevin Yarde
APPEARANCES:
For the Applicant: Brian Simo, Counsel
For the Respondent: William Sproull, Counsel
HEARD: In Writing
OVERVIEW
1Edis Berisha, the applicant, was involved in an automobile accident on October 23, 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, Definity 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 therefore subject to treatment within the $3,500.00 Minor Injury guideline (“MIG”) limit?
ii. Is the applicant entitled to $2,527.52 for chiropractic services, proposed by St. Catherines PhysioHeal in a treatment plan submitted March 28, 2022?
iii. Is the applicant entitled to $2,459.72 for chiropractic services, proposed by St. Catherines PhysioHeal in a treatment plan submitted September 14, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The 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.
4As the applicant remains within the MIG, there is no entitlement to the benefits at issue.
5No interest is payable.
ANALYSIS
The injuries are predominantly minor and the MIG applies:
6I find that the applicant has not met the onus of proving that his injuries are not predominately minor as defined in s.3 of the Schedule and he is therefore subject to treatment within the $3,500.00 MIG limit.
7Section 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.”
8An 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.
9The applicant argues that he is not subject to the $3,500.00 MIG limit on benefits on two grounds:
i. he suffered a concussion as a result of the accident,
ii. a pre-existing medical condition prevents him from achieving maximal recovery if subject to the MIG.
10The respondent submits that the applicant’s soft tissue injuries meet the definition of “minor injury’ and therefore fall within the MIG.
Did the applicant sustain a concussion as a result of the accident?
11I find that there is insufficient evidence to support the applicant’s claim that he suffered a concussion as a result of the subject accident.
12Only three types of practitioners are regulated in Ontario to make a diagnosis of concussion: a physician, nurse practitioner, or neuropsychologist.
13The applicant first reported his accident (MVA) to a medical practitioner four months post-accident, to Dr. Shanza Waqar MD, at the Medicare Clinic on February 5, 2022 – at which time the applicant complained of chronic lower back and right knee pain rated at 4/10. No neurological deficits were noted. Dr. Waqar’s CNRs diagnose the applicant as suffering from lower back and right knee pain.
14I find Dr. Waqar’s notes do not support a diagnosis of concussion as his CNRs regarding the applicant’s initial and subsequent visits make no mention of concussion. Indeed, the applicant’s first medical visit after the MVA was on November 5, 2021, with Dr. Waqar for a follow up on his left thumb injury. There was no mention of the first or second MVA. I find that the absence of such mention supports the respondent’s position that the applicant did not suffer a concussion.
15The only diagnosis of a concussion is contained in the OCF-3 completed May 6, 2022, and OCF-18 completed March 28, 2022, by physiotherapist Carmen Schmidt. Schmidt states the applicant suffers from lower back pain, radiculopathy, headache, sprain and strain of jaw, sprain and stain of shoulder joint, pain in thoracic spine, whiplash associated disorder (WAD2), post concussion syndrome and a concussion due to the accident.
16The second disputed OCF-18 dated September 14, 2022, was completed by physiotherapist Emil Pona. Pona had the same findings as Schmidt who diagnosed the applicant as suffering from lower back pain, radiculopathy, headache, sprain and strain of jaw, sprain and stain of shoulder joint, pain in thoracic spine, whiplash associated disorder (WAD2), post concussion syndrome and a concussion due to the accident. Pona suggested 12 weeks of physiotherapy for the symptoms.
17I give Carmen Schmidt and Emil Pona’s diagnoses little weight with respect to a diagnosis of concussion. As physiotherapists, neither Schmidt or Pona are qualified to make a diagnosis of concussion. Their notes offer no rationale for the diagnosis, nor do they reference the need for additional tests or examinations. There is no record of the applicant being advised to follow a post-concussion protocol, and no referrals are noted.
18I find that the respondent’s position that the applicant did not sustain a concussion as a result of the accident is further supported by the EUO transcripts of the applicant dated December 6, 2022, in which the applicant is reported as indicating that he was seat-belted at the time of the accident and that he did not hit his head or any body part on anything inside the vehicle.
19The respondent submits that the physiotherapists Carmen Schmidt and Emil Pona who diagnosed the applicant with a “concussion” and “post concussion syndrome” are not qualified to make these diagnoses. The respondent also argues that no other health practitioner who saw the applicant after both accidents rendered diagnoses of “concussion” or “post concussion” syndrome. I am not persuaded by the totality of the applicant’s medical evidence regarding the concussion.
20The applicant argues that the respondent has not provided any evidence to reject the diagnosis of a concussion. The applicant argues the respondent has not arranged for an insurer’s examination to obtain an independent opinion. The onus is on the applicant to demonstrate on a balance of probabilities that he suffered a concussion; there is no onus under the Schedule for the respondent to prove that he did not.
21I find that the applicant has failed to meet his onus to establish that he sustained a concussion as a result of the index accident.
Does the applicant have a pre-existing medical condition that prevents him from achieving a maximal recovery if subject to the treatment limits of the MIG?
22I find that the applicant has failed to demonstrate that a pre-existing medical condition prevents him from attaining maximal recovery if subject to the treatment limits of the MIG.
23The applicant submits that he had a previous back injury from an October 6, 2020, motor vehicle accident that was exacerbated by the soft tissue injuries sustained in his October 23, 2021, accident.
24The respondent argues that the applicant has not met his onus to demonstrate that he has a pre-existing condition that would require treatment outside of the MIG. While the respondent has not presented any assessments, it is the applicant’s burden to prove entitlement to the benefits. The respondent also submits that during the applicant’s EUO, the applicant contradicted himself which shows a lack of credibility.
25I am persuaded that the applicant has established that he was experiencing back pain prior to the 2021 accident. The applicant submits that he has undergone assessments and treatments with the following treatment providers: general practitioner through walk-in clinic, physiotherapist and chiropractor to treat his injuries and impairments months prior to the October 23, 2021, accident. This is corroborated by the CNRs of Medicare Clinic provider Dr. Waqar, on March 17, 2021, and March 26, 2021, which revealed that the applicant complained of back pain prior to the accident. Dr. Waqar opined that the applicant’s pain is localized to his middle low back and RT side with occasional radiation to RT leg pain limiting his activity.
26However, I find that the applicant has not provided compelling evidence from a medical or treatment provider that his injuries from his October 6, 2020, accident preclude recovery within the MIG, as required for removal under s. 18(2). In making this finding, I refer to the findings of Dr. Jonathan Chan, Physician at St. Catharines General Hospital dated October 9, 2020 (three days after the first accident). Dr. Chan opined that the applicant complained of left side body pain. The applicant was struck by a car while riding a bike. The radiology exam ordered by Dr. Chan showed no fractures to ribs, chest, pelvis, ankle and no bony injury. The discharge diagnosis given by Dr. Chan was “STI”, or soft tissue injury. Then several days later on October 24, 2020, the applicant visited Dr. Waqar who noted the applicant had a rash on his right thigh for the past month however, he appeared well, not in distress and his back exam inspection was normal. Dr. Waqar recommended Tylenol/Advil and appropriate pattern exercises.
27The applicant had a subsequent visit on July 7, 2021, with Dr. Waqar where X-ray results showed only mild DDD in L5-S1. On August 11, 2021, the applicant complained of back pain despite mild degenerative changes seen on X-ray. The applicant was referred to a chiropractor/physiotherapist. The applicant was referred to Dr. Jake Piker, chiropractor and given a one-month supply of meloxicam.
28The respondent also argues that in the Statutory Declaration, the applicant wrote that at the time of the October 23, 2021, accident his previous injuries were “manageable and not affecting my daily living tasks”. Then during his EUO on December 6, 2022, the applicant completely recanted this stating the injuries from the first accident “were affecting me every single moment of my life. There’s no way I would have ever said that they weren’t”. I agree with the respondent that credibility concerns are to be taken into consideration in this matter because the applicant’s statements at his EUO and the Statutory Declaration with respect to how he was feeling after the initial accident were at odds. Even if I accept that the applicant’s explanation is credible, it is still inconsistent. I prefer the evidence contained in the Statutory Declaration testimony as opposed to the subsequent explanations of how the applicant was feeling after the initial accident.
29For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he has a pre-existing condition that would prevent his recovery from accident-related impairments, such that it warrants his removal from the MIG.
30In summary, I find that the applicant has failed to establish that, on a balance of probabilities, he suffers from any impairments that satisfy the criteria for removal from the MIG.
31As I have found that the applicant is not removed from the MIG, I do not need to consider whether the treatment plans are reasonable and necessary.
Interest
32As no payments are owed, no interest is due.
ORDER
33I find that:
i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. There is no entitlement to the benefits at issue.
iii. No interest is payable.
Released: February 25, 2026
Kevin Yarde Adjudicator