Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-009366/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:
Jerold Morena
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Bianca Pirrotta Iaccino, Paralegal
For the Respondent: Crystal Law, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Jerold Morena, the applicant, was involved in an automobile accident on December 22, 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 Security National 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 $3,024.62 for chiropractic services, proposed by Humber Civic Care Centre Inc. in a treatment plan/OCF-18 (“plan”) dated July 30, 2022?
iii. Is the applicant entitled to the assessments proposed by Ontario Independent Assessment Centre, as follows:
a. $2,350.00 for a Chronic Pain Assessment, in a treatment plan dated November 14, 2022; and
b. $1,950.00 for a Cognitive Assessment, in a treatment plan dated January 18, 2023?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominately minor as per the s. 3(1) of the Schedule and therefore the applicant remains in the MIG.
4As the applicant is still in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
5No interest is payable.
ANALYSIS
MIG
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are 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.”
7An 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 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.
8The applicant in this case submits that he should be removed from the MIG due to chronic pain, and a psychological condition.
The applicant does not suffer from a chronic pain impairment.
9I find that the applicant does not suffer from accident-related chronic pain which would remove him from the MIG.
10The applicant relies on a Disability Certificate (OCF-3) completed by Darlo Mirian, Chiropractor dated January 5, 2022. The OCF-3 indicated that applicant suffered from headache syndrome, Whiplash Disorder (WAD2), muscle, tendon, and neck injury, sprain and strain of the cervical spine, shoulder joint, lumbar spine, pelvis, and hip, pain in the lower back and thoracic spine, chest pain, disorders initiating and maintaining sleep, emotional shock, stress, and anxiety disorder.
11The applicant also relies on the clinic notes and records (CNRs) from his family doctor Dr. E. Leu, and also the disputed OCF-18’s for Chiropractic Services and a Chronic Pain Assessment.
12On December 22, 2021, the applicant visited his family doctor to complain of pain in his chest, left elbow, and lower back in relation to the accident. Dr. Leu notes tenderness in the left rotator cuff, scapula, and elbow and recommends physiotherapy. Dr. Leu also prescribed Symbicort for a nonrelated accident symptom.
13The applicant argues that he continued to visit his family physician, Dr. Leu, on numerous occasions following the accident to complain of ongoing accident-related pain and was consistently recommended physiotherapy and prescribed medication to alleviate accident-related injuries.
14The applicant cites the case of C.G. v The Guarantee Company, 2020 CanLII 40333 (ON LAT) where the Adjudicator adopted the reasoning in T.S. and Aviva Insurance, 2018 CanLII 83520 (ON LAT) in which a formal chronic pain diagnosis is not required to remove an applicant from MIG, and chronic pain is a condition that persists for three to six months.
15The applicant also argues that he meets three of the six criteria for chronic pain as stipulated in the American Medical Association Guidelines (“Guides”).
16The Guides are not incorporated into the Schedule, but the Tribunal has found them to be a useful analytical tool for evaluating chronic pain claims in the absence of a diagnosis. The AMA Guides require three of the below criteria to be met for a diagnosis of chronic pain:
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 need; and
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
17The applicant argues that he meets three or more criteria for chronic pain syndrome, namely use of prescription drugs beyond the recommended duration, excessive dependence on healthcare providers and failure to restore pre-injury function.
18The respondent relies on the s. 44 Physiatry Assessment of Dr. D. Berbrayer, M.D. dated February 9, 2023, and the s.44 Psychological Assessment which took place on October 7, 2024. During the assessment, the applicant complained of physical pain in his left shoulder, back, disturbed sleep, fatigue, and low energy. He also reported a 70% improvement in his physical functioning with therapy being helpful. . During the assessment, the applicant complained of back pain rated as 8/10 in severity and left shoulder pain rated as 7.5/10 in severity. Following completion of the assessment, the diagnosis was soft tissue injuries to the left shoulder with the possibility of left rotator cuff tendinitis, which is simply inflammation of the tendon and not a tear.
19The respondent also relies on the Multidisciplinary Assessment Report by Dr. Syed, Psychologist and Dr. Oshidari, Physiatrist, dated May 18, 2022, which concluded that the applicant only sustained a small contusion to the left shoulder and right hip as a result of the accident. Dr. Syed's and Dr. Oshidari's opinions remained unchanged in the multidisciplinary addendum report dated September 23, 2022.
20The respondent suggests that the applicant’s injuries are minor in nature and can be treated within the MIG. The respondent argues that there has never been any diagnosis of chronic pain by Dr. Leu or any of the applicant's treatment providers. While the applicant does continue to visit Dr. Leu, there were five visits in 2022 and two in 2023, which the respondent states does not suggest excessive dependence on healthcare providers. Also, the respondent states that there have never been any specialist referrals by Dr. Leu between the accident and an accident that occurred in 2023 . There was no imaging of either the left shoulder or the back that has been done to suggest anything more than minor injuries. I agree. While Dr. Leu's records note a couple of medications including Symbicort and Paxil, there has been no prescription summary produced by the applicant.
21I reiterate that it is the applicant's onus to prove on a balance of probabilities that his chronic pain injuries do not fall within the MIG. The applicant submits that as a result of the accident, he suffers from chronic pain in his left shoulder and left rotator cuff area. He relies in large part on his family doctor’s CNRs to establish his claim. However, from my review of Dr. Leu CNRs, there have never been any specialist referrals by Dr. Leu between in respect to the accident, and no diagnosis of chronic pain. I find also that there has never been any imaging done of either the left shoulder or his back area.
22I find that the applicant has not provided evidence of how his injuries would currently impair him from conducting his normal life activities. The applicant remains gainfully employed and has been promoted in one of his positions and continues to teach and take piano lessons. Accordingly, the applicant has not established ongoing functional impairment due to pain, sufficient to establish a non-minor injury.
23For the reasons above, and on a balance of probabilities, I find the applicant has not met his onus of establishing chronic pain impairment. The applicant is not removed from the MIG on this basis.
The applicant does not suffer from a psychological condition
24To establish his claim, the applicant relies on the CNRs from his family doctor Dr. E. Leu, the disputed OCF-18 in the amount of $1,950.00 for a Cognitive Assessment dated, January 18, 2023, as well as the s. 44 report of Dr. Zakzanis, for a Neuropsychological Assessment which took place on May 31, 2023. Dr. Zakzanis indicated that the applicant has a cognitive impairment related to the accident. The applicant complained of decreased memory/concentration, impulsiveness, emotional sensitivity, frustration, depression, anxiety, headaches, and neck pain. The applicant argues that Dr. Zakzanis indicated that he has a cognitive impairment related to the accident. The applicant states that despite a diagnosis being made, the assessor fails to make any recommendations on future treatments or didn’t comment as to why the injuries had not resolved and to make any recommendations for treatment. Finally, the applicant relies on a consultation report dated February 23, 2022, by Andrina Batris, social worker.
25The applicant submits that he has continued to report issues with decreased memory and concentration related to the accident. During all s.44 assessments, the applicant notes impairments with same and has also expressed this being the reason he has not been able to complete schooling to obtain his real estate license.
26The respondent relies on the s.44 multidisciplinary assessment report dated May 18, 2022, by Dr. T. Syed, psychologist, that concluded that the applicant was not suffering from any psychological impairment that would warrant a DSM-5 diagnosis. No pre-existing psychological conditions were identified or reported by the applicant. The applicant was involved in a prior motor vehicle accident in 2017, though reported to Dr. Syed that he was "perfectly fine" prior to the accident.
27Dr. T. Seon, Psychologist, in the s.44 examination dated February 9, 2023, reported that the applicant denied any significant psychological impairment that negatively interfered with his social, occupational or overall level of functioning that would support a psychological diagnosis. Dr. Seon opined that the MIG would apply to his psychology symptoms. I agree.
28I find that the CNRs of the applicant’s family doctor reveal that the applicant visited Dr. Leu on February 25, 2023, to complain of low and anxious mood, disturbed sleep, anxiety, and chest pain. Dr. Leu prescribed medication at this time only, the drug, Paxil. A referral letter dated July 6, 2023, recommends a psychological assessment for anxiety and PTSD due to injuries sustained in the subject accident. There is no other evidence of a psychological concern mentioned by Dr. Leu in his CNRs. Further, Dr. Seon’s examination on February 9, 2023, examined the applicant to determine the MIG applicability and eligibility for a psychological assessment. In her report, Dr. Seon concluded that the applicant did not meet DSM criteria for any psychological diagnosis and had no impairment warranting removal from the MIG.
29With respect to the Neuropsychological Examination by Dr. K. Zakzanis, dated June 21, 2023, I find that Dr. Zakzanis concluded that the applicant demonstrated a mild cognitive impairment with no resultant functional impediments with respect to the December 2021 accident, somatic and psychological concerns while a subsequent accident in February 2023, he was involved in, is reportedly a further contributory factor here. I find that there is no direct evidence that a psychological condition was caused by the December 2021 accident.
30For these reasons above, I find on a balance of probabilities that the applicant has not met his onus to establish a psychological condition and is not warranted removal from the MIG.
31As I have determined that the applicant is still remaining in the MIG, it is not necessary for me to conduct an analysis of whether the treatment plans in dispute are reasonable and necessary.
Interest
32No interest is awarded because no benefits are payable.
ORDER
33On the totality of the evidence, I find that:
i. The applicant is not removed from the MIG.
ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
iii. No interest is payable.
iv. The application is dismissed.
Released: March 4, 2026
Roderick Walker Adjudicator