Citation: Mpala v. S & Y Insurance Company, 2026 ONLAT 24-009354/AABS

Licence Appeal Tribunal File Number: 24-009354/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:

Vena Mpala

Applicant

and

S&Y Insurance Company

Respondent

DECISION

VICE-CHAIR:

Henry Harris

APPEARANCES:

For the Applicant:

Dean Trinetti, Counsel

For the Respondent:

Natalie Spinelli, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Vena Mpala (the "applicant") was involved in an automobile accident on February 17, 2023, 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 S&Y Insurance Company (the "respondent") 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 $2,234.00 for chronic pain assessment, proposed by Paramount Medical Assessments Ltd. in a treatment plan/OCF-18 ("plan") dated December 1, 2023?

iii. Is the applicant entitled to $2,486.00 for psychological assessment, proposed by Paramount Medical Assessments Ltd. in a plan dated July 14, 2023?

iv. Is the applicant entitled to $4,237.59 for chiropractic services, proposed by HealthBridge Physio in a plan dated July 29, 2024?

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

RESULT

3The applicant remains subject to the MIG.

4As the applicant remains in the MIG, it is not necessary to determine if the plans in dispute are reasonable and necessary.

5The applicant is not entitled to interest.

6The application is dismissed.

PROCEDURAL ISSUE

Respondent's request to strike paragraphs 30 to 34 of the applicant's submissions denied

7The respondent argues that statements made in the applicant's submissions regarding findings of psychological diagnoses made by Ms. Viktoria Tolmatshov, psychotherapist, are baseless and should be struck from the record. The respondent submits that it is unclear from the applicant's submission and evidence brief who Ms. Tolmatshov is, that there are no records regarding her psychological diagnoses of applicant, and that she does not appear to have the qualifications to provide such diagnoses of the applicant.

8The applicant submits in reply that tab 14 of her document brief includes the OCF-18 for a psychological assessment dated July 14, 2023. In the additional comments section of the OCF-18, Ms. Tolmatshov is identified as a psychotherapist, who interviewed the applicant, and under the supervision of a psychologist, Mr. Cody Erikson, made a provisional psychological diagnosis of the applicant. The applicant argues there is no valid reason to exclude such submissions.

9I agree with the applicant's position in reply. I find her submissions relating to Ms. Tolmatshov includes a cross-reference to the July 14, 2023 OCF-18, which identifies her as a registered psychotherapist working under the supervision of Mr. Erikson, a psychologist. The respondent's argument as to qualifications to provide psychological diagnoses is not a basis for me to exclude the submissions but rather will be considered in weighing the evidence.

10As such, the respondent's request to strike these paragraphs of the applicant's submissions is denied.

ANALYSIS

The applicant remains within the Minor Injury Guideline (MIG)

11I find that the applicant has not established on a balance of probabilities that she suffers from an accident-related injury or condition that warrants removal from the MIG.

12Section 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."

13An 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 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.

14In all cases, the burden of proof lies with the applicant.

15The applicant submits that she should be removed from the MIG because she:

a) suffers from chronic pain as a result of the accident; and

b) sustained accident-related psychological injuries.

a) The applicant is not removed from the MIG on the basis of chronic pain

16I find that the applicant has not proven on a balance of probabilities that she has accident-related chronic pain with functional impairment that would preclude recovery if held within the MIG.

17The applicant submits that she should be removed from the MIG due to her accident-related chronic pain. In support of her position, the applicant relies on the clinical notes and records ("CNRs") of her family doctor, Dr. Jason Skeete; the OCF-3 Disability Certificate dated March 2, 2023, completed by Dr. Hetal Patel, chiropractor (the "OCF-3"); and the plan dated July 14, 2023 prepared by Mr. Cody Eriksen, psychologist, seeking funding for a psychological assessment.

18The American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA Guides") provide criteria for evaluating a chronic pain condition. The AMA Guides state that a person must meet at least three of six criteria to support a diagnosis of chronic pain, listed below.

19The applicant asserts that she meets four of the six criteria, namely (i), (ii), (iv), (v) and (vi), as follows:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

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.

20While the AMA Guides are not incorporated into the Schedule, the Tribunal has found that they provide a helpful tool in evaluating claims of chronic pain.

21The applicant puts forth that she has relied on prescription medication to manage her pain since the accident, and currently takes Baclofen for pain relief. However, she did not explain how she meets criterion (i), which requires her to show usage of prescription drugs beyond the recommended duration, or dependence on prescription drugs or other substances. She was initially prescribed Baclofen (10 mg) on September 22, 2023, seven months post-accident, for pain relief based on a diagnosis of whiplash injury/back pain. The prescription was for 10 days with one refill. She was again prescribed Baclofen on August 13, 2024, nearly 11 months after the initial prescription. This does not demonstrate a use or dependence on prescription drugs beyond recommended duration. As such, I find this criterion is not met.

22The applicant states that she relies on her family doctor for ongoing medical management and that she relied heavily on family to assist with housekeeping tasks. No explanation was provided as to how this satisfies criterion (ii), the test for which is excessive dependence on health care providers, spouse or family. In reviewing the CNRs of Dr. Skeete, I do not find there is evidence of excessive dependence on health care providers. The applicant sees her family doctor for other common ailments, such as diabetes management and hypertension. Further, there does not appear to be any visits to the family doctor for approximately 6 months between October 2023 and April 2024. As well, I find she has not demonstrated excessive dependence on family members. She is fully independent in self-care, continues to work full-time and returned to driving after the accident. She continues to take part in all pre-accident household responsibilities, but at a lesser frequency and receives help from her children as required. There is no evidence that this help rises to the level of excessive dependence. As such, I find this criterion is not met.

23The applicant submits that she has withdrawn from social milieu. Criterion (iv) requires the applicant to demonstrate withdrawal from social milieu, including work, recreation, or other social contacts. There is nothing in the CNRs of Dr. Skeete to support this. The applicant directs me to the October 7, 2024 s. 44 insurer's examination ("IE") report of Dr. Rakesh Ratti, psychologist, where she reported that she does not take longer walks, and only socializes with her friends by phone instead of in-person. I do not find this statement alone establishes that she has withdrawn from social milieu, particularly in the absence of any such complaints to the family doctor. As such, I find this criterion has not been satisfied.

24The applicant asserts that she has not restored her pre-injury function. Under criterion (v), the applicant must demonstrate a 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. She points to her reporting to Dr. Skeete that she has difficultly with sitting for prolonged periods of time and they cannot lift heavy items. While I recognize the applicant's complaints that her back pain is worsened by sitting for a prolonged time, she has not shown that this makes her unable to work. The evidence indicates that she continues to work with the same duties as pre-accident, with the modification that she can work from home and has flexible hours. She missed approximately one week of work from the accident. As such, I find this criterion has not been satisfied.

25The applicant submits that she has developed psychological sequelae post-accident. For criterion (vi), the applicant must show the development of psychosocial sequelae post-accident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours. The applicant directs me to the July 14, 2023 plan for a psychological assessment, where the additional comments section noted that the applicant reported that since the accident she struggles with anxiety, nightmares, frustration, low mood, feelings of depression, irritability, and vehicular anxiety. It is well settled that an OCF-18 treatment plan alone is not sufficient for an applicant to satisfy their evidentiary burden. There is nothing in the CNRs of Dr. Skeete documenting any psychological complaints by the applicant. As such, I find this criterion has not been satisfied.

26Further, the applicant references the OCF-3 but has not explained how it supports any of the criteria for chronic pain in the AMA Guides. The OCF-3, which was completed two weeks post-accident, lists the applicant's injuries as sprain/strain in the spine, shoulder and upper arm, which I find is consistent with a minor injury. The OCF-3 also includes generalized anxiety disorder as the last item in the list of accident related injuries and sequelae. I agree with the respondent that psychological diagnoses made on the OCF-3 are outside of the scope of Dr. Patel as a chiropractor, and I give no weight to such diagnosis.

27Having found that the applicant has not satisfied any of the above criteria, it follows that the applicant has not satisfied at least three of the criteria in the AMA Guides supporting a diagnosis of chronic pain.

28The respondent submits that Dr. Skeete did not diagnose the applicant with chronic pain at any time in the post-accident period, nor does he make any referrals for advanced imaging or specialists. Although I do not find that the absence of any such referral to be determinative, it is notable in that the CNR's of Dr. Skeete do not suggest follow up care is needed with a specialist for chronic pain or functional impairment. While I accept that the applicant has reported lower back pain to her family doctor, complaints of pain are not sufficient to establish impairments. I was not pointed or directed to evidence to support functional impairment related to chronic pain.

29Accordingly, I find that the applicant has not established on a balance of probabilities that she has accident-related chronic pain with a functional impairment to warrant removal from the MIG.

b) The applicant is not removed from the MIG on the basis of psychological injuries

30I find that the applicant has not proven on a balance of probabilities that she sustained psychological injuries due to the accident that warrants removal from the MIG.

31Psychological impairments are not included in the minor injury definition and a finding that the applicant sustained psychological impairment as a result of the accident would permit them to seek treatment outside of the MIG. An impairment is defined in s. 3(1) of the Schedule as a "loss or abnormality of a psychological, physiological or anatomical structure or function."

32The applicant submits that she suffers from psychological injuries as a result of the accident and, as such, should be removed from the MIG. In support of her position, the applicant relies on one of the plans in dispute, an OCF-18 dated July 14, 2023 prepared by Mr. Eriksen, psychologist, seeking funding for a psychological assessment. The applicant directs me to the additional comments section of the OCF-18, which identifies that references a screening for a psychological assessment, conducted by Ms. Tolmatshov, psychotherapist, acting under the supervision of Mr. Erikson. Specifically, it is noted that the applicant reported that since the accident she struggles with anxiety, nightmares, frustration, low mood, feelings of depression, irritability, and vehicular anxiety. made a provisional diagnosis of adjustment disorder. The additional comments conclude that the applicant's description of the accident and its consequences suggest a provisional diagnosis of an adjustment disorder and recommend a psychological assessment.

33The respondent counters that the applicant has not established that she has any psychological impairments as a direct result of the subject accident. The respondent relies on the October 7, 2024 IE report of of Dr. Ratti, psychologist. Dr. Ratti opined that the applicant did not suffer from any psychological impairment as a result of the accident, and that her injuries were minor and fell within the MIG.

34I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment due to the accident. There is no indication of the applicant making any post-accident complaints of psychological impairments to her family doctor. I acknowledge that the July 14, 2023 OCF-18 contains a provisional diagnosis of adjustment disorder, but find this is insufficient by itself to prove a psychological impairment. A treatment plan alone is not sufficient to satisfy the burden for removal from the MIG, and in this case, there is an absence of corroborating medical evidence in support of the applicant having an accident-related psychological impairment.

35Further, the OCF-3 also includes generalized anxiety disorder as the last item in the list of accident related injuries and sequelae. I agree with the respondent that psychological diagnoses made on the OCF-3 are outside of the scope of Dr. Patel as a chiropractor, and I give no weight to such diagnosis.

36Accordingly, for these reasons, I find that the applicant has not proven on a balance of probabilities that she sustained a psychological injury due to the accident that would warrant removal from the MIG. Therefore, I find that the applicant is subject to the MIG.

37As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.

Interest

38Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.

ORDER

39For the reasons outlined above, I find that:

a. The applicant shall remain in the MIG;

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

c. The applicant is not entitled to interest; and

d. The application is dismissed.