Citation: Paredes vs. TD General Insurance Company, 2026 ONLAT 24-007999/AABS

Licence Appeal Tribunal File Number: 24-007999/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:

Cesar Paredes

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Caley Howard

APPEARANCES:

For the Applicant:

Ilan Liebner, Counsel

For the Respondent:

Kendall Andjelkovic, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Cesar Paredes, the applicant, was involved in an automobile accident on July 19, 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. 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 $2,865.50 for chiropractic services, proposed by Physiomed Sherway in a treatment plan/OCF-18 (“plan”) submitted March 2, 2023?

iii. Is the applicant entitled to $2,486.00 for a psychological assessment proposed by Downsview Healthcare Inc. in a plan submitted September 14, 2022?

iv. Is the applicant entitled to $2,598.81 for a chronic pain assessment, proposed by Prime Health Care Inc. in a plan submitted July 5, 2023?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. The applicant remains in the MIG;

ii. As the applicant is subject to the MIG, it is not necessary to consider whether the treatment plans are reasonable and necessary;

iii. The applicant is not entitled to interest under s. 51 of the Schedule; and

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

The applicant remains in the MIG

4I find that the applicant remains in the MIG as he has not proven, on a balance of probabilities, that his accident-related injuries fall outside the MIG.

5Section 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.”

6An 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.

7A concussion, or post-concussion syndrome may warrant removal from the MIG as it is not included in the definition of minor injury. In all cases, the burden of proof lies with the applicant.

8The applicant submits that he sustained a concussion, a psychological condition and chronic pain, each of which warrants his removal from the MIG.

9The respondent submits that the applicant sustained only minor injuries, specifically whiplash and a sprained or strained shoulder.

Concussion

10I find that the applicant has not proven that he sustained a concussion in the accident.

11The applicant submits that he sustained a “grade 2 concussion” in the accident, which warrants his removal from the MIG. In support of his claim, he relies on the psychology pre-screen questionnaire completed for Dr. Jacqueline Brunshaw dated September 7, 2022, the hospital records from North York General Hospital from July 19, 2022, the date of the accident, and the clinical notes and records (“CNRs”) of Dr. Cameron Caners, the applicant’s family physician.

12The respondent submits that the applicant has not proven that he sustained a concussion in the accident. The respondent relies on the June 2, 2023 and December 3, 2024 reports of Dr. Barbara Connelly, Neurologist.

13While the applicant submits that he reported various concussion-related symptoms to Dr. Caners in July 2022 and attended a concussion clinic, I was not directed to the relevant records in support of those submissions. The CNRs of Dr. Caners that were provided to the Tribunal start on July 25, 2023 and deal primarily with complaints of lower back pain and do not reveal any reports by the applicant respecting post-concussive symptoms.

14The applicant reported to Dr. Brunshaw that he was diagnosed with a level 2 concussion at the hospital immediately after the accident. This report is included in Dr. Brunshaw’s psychology pre-screen report of September 7, 2022. However, I give it little weight as it was not based on Dr. Brunshaw’s own medical assessment or her review of medical records. I further find that the applicant’s report to Dr. Brunshaw is not supported by the hospital records from the date of the accident, which show that the applicant reported only pain in his right shoulder on the day of the accident.

15Dr. Connelly opined that the applicant experienced episodic tension-type headaches as a result of the accident, but had not sustained a concussion in the accident. Dr. Connelly based her opinion on the description of the accident and the applicant’s subsequent symptoms. I give weight to Dr. Connelly’s opinion, which I find is supported by the CNRs of Dr. Caners and the hospital records.

16I therefore find that the applicant has not proven, on a balance of probabilities, that he sustained a concussion in the accident.

Chronic pain with functional impairment

17I find that the applicant has not proven that he sustained chronic pain with functional impairment as a result of the accident.

18The applicant submits that he sustained injuries to his neck, right shoulder and lower back during the accident, which developed into chronic pain. He submits that this warrants his removal from the MIG. In support of his position, he relies on the CNRs of Dr. Caners, the Insurer’s Examination (“IE”) Functional Capacity Evaluation report of Sheri Corriero, physiotherapist, dated July 25, 2023, and the intake form he submitted to the Rivlin Medical Group on November 5, 2024. The applicant submits that he was diagnosed by Dr. Hefford, on June 28, 2023, with multiple chronic injuries. However, the applicant did not direct me to Dr. Hefford’s records.

19The respondent submits that the applicant has not proven that he suffers from chronic pain with a functional impairment, as the applicant has returned to all of his pre-accident work and personal activities. The respondent relies on the IE Report of Dr. Andrzej Gwardjan, Physiatrist, dated June 2, 2023.

20I find that there are a number of reports of ongoing lower back pain in the CNRs of Dr. Caners and that Dr. Caners referred the applicant to Dr. Leon Rivlin at a chronic pain clinic, the Rivlin Medical Group, on November 5, 2024.

21I further find that the applicant has directed me to insufficient evidence that he suffers from any functional impairment as a result of chronic pain. I considered that the applicant’s intake form for the chronic pain clinic indicates that he checked off the option that in the past two weeks, pain had interfered with the applicant’s general activity, mood, walking ability, normal work, relations with other people, sleep and enjoyment of life. However, I give this intake form limited weight as it is not accompanied by any notes or records from Dr. Leon Rivlin outlining his assessment, diagnosis, observations or recommendations. Nor is it supported by any other documents. I find that the intake form was completed by the applicant to provide the doctor with some information, which the doctor may take into consideration in forming a diagnosis or treatment recommendations. I find that without Dr. Rivlin’s notes or report, the intake form is of little assistance to me.

22Ms. Correiro’s functional capacity evaluation report, dated July 25, 2023, indicated that Ms. Correiro observed no functional defects during her assessment of the applicant, despite the applicant’s reports of ongoing pain. I give weight to Ms. Corriero’s report as it corresponds with the rest of the medical evidence before me.

23I therefore find that the applicant has not proven, on a balance of probabilities, that he suffers from chronic pain with a functional limitation.

Psychological condition

24I find that the applicant has not proven that he sustained a psychological condition as a result of the accident.

25The applicant submits that he suffers from a psychological condition as a result of the accident. In support of his submission, he relies on the pre-screen interview of Dr. Brunshaw, Psychologist, dated September 7, 2022, the paper review report of Dr. Shahriar Moshiri, dated November 9, 2023, and a psychological intake form submitted to the Rivlin Medical Group, the chronic pain clinic, on November 5, 2024.

26The respondent submits that the applicant has not proven that he sustained a psychological condition and relies on Dr. Moshiri’s paper review report and the IE report of Dr. Terra Seon, Psychologist, dated December 3, 2024.

27The pre-screen interview of Dr. Brunshaw and the psychological intake form submitted to the Rivlin Medical Group, indicate that the applicant reported certain psychological symptoms on the dates in question, such as disturbing nightmares, increased fear being in or around cars, difficulty concentrating, low energy and irritability. I find that neither of these documents includes a diagnosis of a psychological condition by either Dr. Brunshaw or Dr. Rivlin. I further find that the symptoms set out in these documents are not supported by the CNRs of Dr. Caners, which do not contain similar reports.

28Dr. Moshiri’s opinion, based on a paper review of the applicant’s file, was that the applicant did not have a formal psychological condition and that, from a psychological perspective, the claimant’s injuries arising from the accident, meet the criteria for an injury that falls within the MIG.

29Similarly, Dr. Seon, after a 2.5 hour assessment of the applicant, which included a clinical interview and psychometric testing, opined in a report dated December 3, 2024, that the applicant’s symptoms were not of a magnitude to warrant a psychological diagnosis as a result of the accident.

30I find that both Dr. Moshiri and Dr. Seon were aware of the applicant’s reported psychological symptoms and took those into consideration when forming their respective opinions. I give significant weight to these concurring opinions, which are supported by the CNRs of Dr. Caners and are not contradicted by any psychological diagnoses.

31Therefore, I find that the applicant has not proven, on a balance of probabilities, that he suffers from a psychological condition as a result of the accident.

32As a result, I find that the applicant remains within the MIG.

33I have found that the applicant remains subject to the MIG, therefore it is not necessary to determine whether the disputed treatment plans are reasonable and necessary.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits payable, the applicant is not entitled to interest.

Award

35The 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. As there are no benefits withheld or delayed, the respondent is not liable to pay an award.

ORDER

36I find that:

i. The applicant remains in the MIG;

ii. As the applicant is subject to the MIG, it is not necessary to consider whether the treatment plans are reasonable and necessary;

iii. The applicant is not entitled to interest under s. 51 of the Schedule; and

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.