Licence Appeal Tribunal File Number: 24-009963/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:
Faith Wilson
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Bianca Crocetti, Paralegal
For the Respondent:
Orest Kuchar, Counsel
HEARD:
By way of written submission
OVERVIEW
1Faith Wilson, the applicant, was involved in an automobile accident on February 13, 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 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 limit?
ii. Is the applicant entitled to $4,026.34 for chiropractic services, proposed by St. Catherines PhysioHeal in a treatment plan/OCF-18 (“plan”) submitted August 4, 2022?
iii. Is the applicant entitled to $3,172.68 for physiotherapy, proposed by St. Catherines PhysioHeal in a plan submitted January 10, 2023?
iv. Is the applicant entitled to $2,530.00 for psychological assessment, proposed by Tier 1 Assessments in a plan submitted February 18, 2023?
v. Is the applicant entitled to $2,200.00 for chronic pain assessment, proposed by Tier 1 Assessments in a plan submitted April 11, 2023?
vi. Is the applicant entitled to $72.46 ($100.00 less $27.54 approved) for chiropractic services, submitted on an Expenses Claim Form (OCF-6) on August 16, 2022?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the confines of the MIG.
4As the applicant remains in the MIG an analysis of the reasonableness and necessity of the treatment and assessment plans is not necessary.
5The respondent’s denial letters are in accordance with s.38(8).
6As no benefits are owing, interest is not owing.
7The applicant is not entitled to an award.
ANALYSIS
Minor Injury Guideline
8Section 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.”
9An 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
10It is important to note that the applicant provided submissions that allude to the applicant suffering from pre-existing chronic back pain, accident-related physical injuries, and accident-related psychological injuries, however her submissions are difficult to follow. For my deliberation, I will attempt to align the evidence provided by the applicant in the MIG specific areas, however I note that it is not the Adjudicators responsibility or role to make the applicant’s case for her.
Physical injuries
11I find on a balance of probabilities that the applicant has not established that as a result of the accident she should be removed from the MIG due to her physical injuries.
12The applicant submits that as a result of the accident she suffers from pain in her right arm, neck back and shoulder. She submits and relies on an ultrasound of her shoulder dated January 28, 2023, which shows she suffers from moderate to severe tendinopathy with calcific component involving supraspinatus and an intermediated to high grade partial thickness tear. The applicant relies on the Clinical Notes and Records (CNRs) of her family physician Dr. Berthothy, the CNRs of Lakestreet Chiropractic, and the CNRs of PhysioHealth.
13The respondent argues that the applicant suffered from uncomplicated soft-tissue injuries as a result of the accident. It argues that the applicant’s self reporting impairments do not reflect the medical documentation on file and that there is no mention of the accident in the applicant’s family doctors CNRs. It argues that the applicant returned to work one week following the accident and to most of her pre-accident activities. The respondent relies on the orthopaedic assessment report of Dr. Rusen dated October 5, 2022, and the reports of Dr. Lee, physician, dated May 23, 2023.
14I find on a balance of probabilities that the applicant has not established that as a result of the accident she should be removed from the MIG due to her physical injuries. The CNRs of Dr. Berthothy shows that approximately 73 days post accident the applicant attended her first medical post accident appointment with Dr. Berthothy, which appears to be based on a referral for an ultrasound for the applicant’s right shoulder and upper arm. The CNRs of Dr. Berthothy from this appointment do not mention any accident-related injuries. Although the applicant’s complaints of injury at this appointment are in part consistent to her reported accident-related complaints, I was not provided a linkage from this appointment that comes 73 days post accident that opine that the injuries are as a result of the accident.
15The ultrasound report dated January 28, 2023, shows moderate to severe tendinopathy with calcific component involving supraspinatus and an intermediate to high grade partial thickness tear. The applicant relies on the partial tear diagnosis as a basis to be removed from the MIG, however it is well established that the Tribunal has found that a partial tear does not warrant removal from the MIG.
16In addition, I was not pointed to a linkage from the applicant’s submissions or the medical evidence that suggests this tear was a result of the accident. The CNRs of Dr. Berthothy do not mention the motor vehicle accident, but rather the majority of Dr. Berthothy’s notes reference the reasons for the appointments as being CPP progress notes and not the subject accident.
17Finally, the contemporaneous evidence shows that the applicant returned to her pre-accident employment as a cleaner approximately ten days following the accident, she is independent with completing all personal care tasks and able to complete all housekeeping and home maintenance tasks.
18For these reasons I am persuaded by the respondent’s Insurer’s Examination (IE) assessments and accept the medical opinions of Dr. Rusen that the applicant sustained uncomplicated musculoskeletal soft tissue injuries with no compelling evidence of any pre-accident conditions that would prevent her from achieving maximum medical recovery within the confines of the MIG, and I accept the opinion of Dr. Lee, who opines that that there are no valid indicators to support ongoing accident related musculoskeletal injury or impairment.
19I find on a balance of probabilities that the applicant has not established that as a result of the accident she should be removed from the MIG due to her physical injuries.
Psychological Injury
20I find on a balance of probabilities that the applicant does not suffer from a psychological injury as a result of the accident that warrants removal from the MIG.
21The applicant submits that as a result of the accident she suffers from major depressive disorder and specific phobia (passenger) and therefore she should be removed from the MIG. The applicant relies on a psychological assessment report, prepared by Dr. Papazoglous, psychologist, dated April 24, 2023.
22The respondent argues that the applicant does not suffer from a psychological injury that warrants removal form the MIG. The respondent relies on the IE report completed by Dr. Mandel, dated May 23, 2023.
23I find that the applicant has not established that her accident-related psychological injury warrants removal from the MIG because I found Dr. Mandel’s assessment of the applicant to be more persuasive than that of Dr. Papazoglous. Dr. Mandel’s assessment was in person and approximately three and a half hours in duration, and consists of the applicant’s subjective reporting, testing, clinical observations, and objective testing, whereas Dr. Papazoglou’s assessment lacked psychometric testing with validity measures and heavily relied on testing based on the applicant’s self report.
24For example, Dr. Mandel administered the personality assessment inventory (“PAI”), which is an objective test with several validity indices that are designed to provide an assessment of factors that could distort the results of testing, which assisted Dr. Mandel’s conclusion that the applicant does not suffer from a diagnosable psychological injury as a result of the accident.
25In addition, the corroborating evidence does not support a finding that the applicant suffers from a psychological injury that warrants removal form the MIG because the CNRs of Dr. Bertothy do not mention psychological complaints from the applicant. For the reasons above, I placed more weight to the report of Dr. Mandel than that of Dr Papazoglous, and I accept Dr. Mandel’s medical opinion that the applicant does not suffer from a psychological impairment or diagnosis of such that warrant removal from the MIG.
26I find on a balance of probabilities that the applicant does not suffer from a psychological injury as a result of the accident that warrants removal from the MIG.
Chronic pain with a functional impairment
27I find on a balance of probabilities that the applicant has not met her onus to establish that she suffers from chronic pain with a functional impairment as a result of the accident that warrants removal from the MIG.
28The applicant submits that she suffers from pre-existing chronic back pain and relies on the CNRs of her family physician Dr. Bertothy.
29The respondent argues that the applicant has not provided evidence that she suffers from chronic pain with a functional impairment as a result of the accident.
30The applicant submits that she suffers from chronic pain in her back, however, I was not pointed to evidence that shows what functional impairments arise from her chronic pain. The applicant has not met her onus to prove that she suffers from chronic pain with a functional impairment that warrants removal from the MIG.
31I find on a balance of probabilities that the applicant has failed on her onus to prove that she suffers from chronic pain with a functional impairment that warrants removal from the confines of the MIG.
Pre-existing condition
32I find on a balance of probabilities that the applicant has failed to establish that she suffers from a documented pre-existing injury or condition combined with compelling medical evidence stating that her condition precludes recovery if she is kept within the confines of the MIG.
33The applicant submits that she suffers from a pre-existing condition of chronic back pain, therefore she should be removed from the MIG. The applicant relies on the CNRs of her family physician Dr. Berthothy.
34The respondent argues that the applicant has not provided evidence that supports her from suffering from a documented pre-existing condition that warrants removal from the MIG.
35The partial tear in the applicant’s shoulder may be a pre-existing condition; however, I was not pointed to how the partial tear or how her existing chronic back pain were exasperated by the accident. The CNRs of the applicant’s family physician do not suggest that the accident has exasperated these injuries because I am not pointed to documented pre-existing injury’s or conditions that are combined with compelling medical evidence stating that the condition precludes recovery if she is kept within the confines of the MIG, which is the requirement for removal from the MIG on this ground under s.18(2).
36I find on a balance of probabilities that the applicant has not met her onus to establish that she suffers from a document pre-existing condition that precludes her recovery with the confines of the MIG.
The respondent’s denials comply with Section 38(8) of the Schedule
37Section 38(8) reads that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
38The applicant submits that all of the respondent’s denial letters are in breach of s.38(8) of the Schedule because the denial letters do not provide a proper medical reason as to why the insurer does not agree to pay, but rather the respondent provided boiler plate responses to the OCF-18’s.
39The respondent argues that its denial letters are in accordance with s.38(8) as it provided clear and unequivocal denials with respect to the MIG applicability, the results of its s.44 examinations, the reasonableness and necessity and the treatment plans and the lack of evidence provided by the applicant to support her claim.
Issue vi. - Is the applicant entitled to $72.46 ($100.00 less $27.54 approved)
40I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule.
41The denial letter approved $27.54 because the applicant has already been approved for the $3,500.00 maximum under the MIG. The denial letter states “At this time, we wish to advise you that we have already approved a total of $3,500.00 of treatment under the Minor Injury Guideline. The maximum amount of medical and rehabilitation funds available to a person with a minor injury is $3,500.00. As your impairment has not been deemed to be outside of the Minor Injury or to meet the criteria for a catastrophic impairment, no further Medical and Rehabilitation benefits will be considered in excess of the above limitation.”
42In my view, the respondent provided appropriate and clear medical and other reasons for its denial of the outstanding amounts because it provided proper reasons, namely that her injuries fall within the MIG and because she has already been approved to the maximum amount under the MIG. Accordingly, I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule.
Issue ii.- $4,026.34 for chiropractic services.
43I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule.
44The respondent denied this plan based on its IE report, which determined that the applicant’s injuries fall within the MIG and communicated its medical and or other reasons in clear, logical, and easily understood language, its denial is as follows:
As per Dr. Jamie Rusen: Ms. Wilson sustained primarily uncomplicated musculoskeletal soft tissue strain/sprain/contusion injuries as a result of the subject accident that would be classified as minor injuries as defined by the minor injury guideline. There is no compelling evidence of any pre-accident conditions that would prevent her from reaching maximum recovery from her accident-related orthopedic injuries if subjected to the treatment limits of the minor injury guideline. Your claim remains subject to the medical and rehabilitation limit of $3,500.00. This amount is inclusive of the treatment received with the Minor Injury Guideline.
45I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule because the respondent provided clear medical reasons such as no compelling evidence of pre-accident conditions, and its assessor opined that her injuries are soft tissue/sprain/contusion, and notified the applicant that her injuries are subject to the MIG limits, which in my view satisfy the requirements under s.38(8).
Issue iv. $2,530.00 for psychological assessment
46I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule.
47The respondent denied this plan based on its IE report, which determined that the applicant’s injuries fall within the MIG and communicated its medical and or other reasons in clear, logical, and easily grasped language. Its denial is as follows which I find to be in accordance with s.38(8).
Dr. Debra Mandel (psychologist) states that based upon an integration of information from the clinical interview, documentation review, behavioral observations and psychological test data, the evidence from the current examination indicates that Ms. Wilson is reporting some adjustment related difficulties however does not meet DSM-5 diagnostic criteria for a clinical diagnosis. As a result of the diagnosis there is no impairments identified that fall outside of the Minor Injury Guideline.
48The letter continues to inform the applicant that she remains in the MIG and attached a copy of Dr. Mandel’s report for her to review and to discuss with her treating health practitioner. Accordingly, the denial letter is in accordance with s. 38(8) because the respondent provided medical and other reasons for its denial.
49I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule.
Issue iii.- $3,172.68 for physiotherapy.
50I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule.
51The respondent denied this plan based on its insurer’s examination, which determined that the applicant’s injuries fall within the MIG guidelines and communicated its medical and or other reasons in clear, logical, and easily grasped language, its denial is as follows which I find to be in accordance with s.38(8). For example, as outlined below, the respondent’s medical assessor opines that her injuries are sprains/strains and further informs the applicant that her injuries are subject to the MIG limits.
Dr. Seung-June Lee states that based on a review to the file documentation, interview and assessment, Dr. Seung-June Lee has concluded that Ms. Wilson sustained musculoskeletal injuries including Whiplash Associated Disorder I, bilateral shoulder sprain/strain, lumbar myofascial sprain/strain, and right knee sprain/strain. Therefore, your injuries predominantly fall with the Minor Injury Guideline. Your claim remains subject to the Medical and Rehabilitation limit of the $3,500.00. This amount is inclusive of the treatment received with the Minor injury Guideline.
52The letter continues to inform the applicant that she remains in the MIG and attached a copy of Dr.Seung-June Lee’s report for her to review and discuss with her treating health practitioner. Accordingly, the denial letter is in accordance with s. 38(8) because the denial contained medical and other reasons for its denial.
53I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule.
Issue v. $2,200.00 for a chronic pain assessment
54I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule.
55The respondent denied this plan based on the medical information it received on file, which determined that the applicant’s injuries fall within the MIG and communicated its medical and or other reasons in clear, logical, and easily grasped language, its denial is as follows which I find to be in accordance with s.38(8).
We have received the Treatment and Assessment Plan (OCF-18) submitted by Dr. Tajedin Getahun from Tier 1 Assessments Ltd. submitted on April 11, 2023. We do not agree to pay for any of the goods, services and/or assessments described for the medical reasons and all other reasons known as of the date of this notice as follows:
Based on the description of injuries listed on this OCF 18; Whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, contusion of lower back and pelvis, contusion of shoulder and upper arm these injuries fall under the Minor Injury Guideline. As per the injuries listed as nonorganic sleep disorders, other phobic anxiety disorders, and other chronic pain.
To date we have not been provided with any objective medical information to support that your injuries fall outside of the definition of a Minor Injury. Should you have medical documentation to indicate otherwise please submit for review.
A review of your Accident Benefits file indicates that, to date, we have approved you to the Medical and Rehabilitation benefits limits of $3,500.00. Please be advised that the maximum amount payable for Medical and Rehabilitation benefits in respect of an insured person shall not exceed the sum of $3,500.00 for a non-catastrophic impairment under the definition of a Minor Injury.
56The letter provides clear medical reasons for its denial along with other reasons such as the applicant’s accident-related sequela and further encourages the applicant to provide medical documentation that indicate otherwise to support her need for the assessment. The letter notifies the applicant that her injuries fall within the MIG and communicated its medical and or other reasons in clear, logical, and easily grasped language.
57For the reasons above, I find on a balance of probabilities that the respondent’s denial letter is in accordance with s. 38(8) of the Schedule.
Interest
58Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.
Award
59The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
60The applicant did not provide any submissions regarding her entitlement to an award.
61As the respondent did not withhold or delay any benefits from the applicant, follows that the respondent is not liable to pay an award to the applicant.
ORDER
62It is ordered that:
i. The applicant remains in the MIG; therefore, an analysis of the reasonableness and necessity of the treatment and assessment plans is not necessary.
ii. The respondent’s denial letters are in accordance with s.38(8).
iii. As no benefits are owing, interest is not owing.
iv. The applicant is not entitled to an award.
v. The application is dismissed.
Released: March 9, 2026
__________________________
John Mazzilli
Adjudicator