Licence Appeal Tribunal File Number: 24-004785/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:
Danielle Lapedus
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Roderick Walker
APPEARANCES:
For the Applicant:
Andrew Bergel, Counsel
For the Respondent:
Alanna Pink, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Danielle Lapedus, the applicant, was involved in an automobile accident on May 15, 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 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 $2,000.00 for chiropractic services, proposed by Russell Hill Chiro Clinic in a treatment plan/OCF-18 (“plan”), submitted on March 13, 2023?
iii. Is the applicant entitled to $2,600.00 for massage therapy, proposed by Russell Hill Chiro Clinic in a plan, submitted on January 10, 2023?
iv. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Hydrohealth Evaluations in a plan, submitted on June 18, 2024?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is removed from the MIG.
4The OCF-18s dated January 10 and March 13, 2023, are payable pursuant to s. 38(11) once incurred and properly invoiced by the applicant, plus applicable interest.
5The applicant is entitled to the OCF-18 for a chronic pain assessment, plus interest.
PROcedural ISSUES
6The respondent objects to the admission of exhibits B and C in the applicant’s submissions, which consist of a video and a photograph of the accident scene and vehicle damage. The respondent submits that these materials were not disclosed within the timelines set out in the Case Conference and Report (CCRO) dated October 1, 2024, and argues that it did not have an opportunity to review them with its assessors. The respondent seeks relief by having these exhibits excluded.
7The applicant responds that the exhibits are relevant to the issues in dispute and that their admission will not cause real prejudice to the respondent.
8I find that the video and photograph under exhibits B and C are relevant to the issues before me. However, the weight I will assign to this evidence will be limited because the video was recorded from a distance by a neighboring camera and does not provide a close-up view of the damage sustained or any injuries that the applicant sustained in the crash.
9I order, under rules 3.1 and 9.3 that exhibits B and C of the applicant’s submissions be admitted into evidence for the purposes of this hearing.
ANALYSIS
Minor Injury Guideline (MIG)
10Section 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.” An 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. In all cases, the burden of proof lies with the applicant.
11Here, the applicant submits that she should be removed from the MIG on the basis of a chronic pain impairment.
The applicant suffers from a chronic pain impairment.
12The applicant relies on the Clinical Notes and Records (CNR’S) of North York General Hospital, St. Michael’s Hospital, Sunnybrook Hospital, her family doctor, Dr. Hogarth, Russell Hill Chiropractic & Natural Health, Mt. Sinai Hospital, Dr. G. Karmy, MD and his assessment report dated August 29, 2024, and the disputed treatment plans.
13The applicant submits that she has developed chronic pain as a result of the accident. She reports a burning pain on her right side that causes weakness in her arm, with symptoms worsening at night. She states that her spine “locks up,” preventing her from lying on her back, and she experiences difficulty sitting for extended periods. Her pain is described as sharp and burning, accompanied by a constant throbbing sensation over the right posterior scapular region. Throughout the day, her pain intensifies, and she experiences weakness in her thumb along with occasional pins and needles or numbness in her right upper extremity. Since the accident, her range of motion, strength, and overall functional mobility have decreased. She takes cyclobenzaprine at night to assist with sleep. An MRI performed on June 27, 2022, at North York General Hospital, revealed a disc protrusion at T1/T2 encroaching on the right anterolateral cord, identified as the probable source of her pain, and a moderate-to-large central disc protrusion at L1/L2 causing mild impression on the thecal sac, aka a herniated disk.
14The applicant also argues that she meets three of the six criteria for chronic pain in the American Medical Association (“AMA”) Guides.
15The 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.
16The applicant argues that she meets three or more criteria for chronic pain syndrome, namely physical deconditioning, failure to restore pre-injury function, and psycho-social sequelae development.
17The respondent relies on the assessment reports of Dr. Ko (physiatrist) and Dr. Moshiri (psychologist) to support the position that the applicant’s injuries fall within the Minor Injury Guideline (MIG). The applicant was first assessed by Dr. Ko on October 23, 2023, in relation to the MIG and the OCF-18 treatment plans dated January 10, 2023, and March 13, 2023.
18During his examination, Dr. Ko observed that the applicant had an active range of motion in the shoulder, lumbar spine, and hips, with no tenderness upon palpation. There was no evidence of structural musculoskeletal injury or nerve impingement. Although imaging revealed disc bulges, clinically there was no indication of cervical, thoracic, or lumbar radiculopathy. Dr. Ko concluded that the applicant sustained soft tissue injuries, which do not fall outside the MIG. Accordingly, the OCF-18 treatment plans were deemed not reasonable or necessary. I disagree.
19Further, based on the Clinical Notes Records (CNRs) of the family doctor, Dr. B. Hogarth, the applicant experienced severe scapular pain on July 22, 2022. The medications prescribed, including Celebrex and Lyrica, were not providing relief. Consequently, Dr. Hogarth referred the applicant to a pain management clinic.
20The Clinical Notes Records (CNRs) from Mount Sinai Hospital Wasser Pain Management Centre included an assessment by Dr. R. Flamer, MD. Dr. Flamer concluded that the applicant has a T1–T2 herniated disc associated with significant right-sided periscapular shoulder pain. He indicated that surgery could be considered if medication and anti-inflammatories fail to provide adequate relief.
21Further, on June 30, 2022, the applicant consulted with Dr. Finkelstein, an orthopaedic surgeon at Sunnybrook Hospital. Dr. Finkelstein noted that the applicant’s symptoms had started 2 weeks after her motor vehicle accident. Dr. Finkelstein noted the T1, T2 herniated disc because of the applicant’s weak grip pressure. He also recommended surgery if there was no improvement over time.
22The CNR entry from North York General Hospital dated June 28, 2022, indicates that the applicant was seen by Dr. J. Wilson, a neurosurgeon at St. Michael’s Hospital. Dr. Wilson diagnosed the applicant with an acute T1–T2 disc herniation accompanied by significant parascapular shoulder pain. He recommended initiating conservative management, including anti-inflammatories, neuropathic pain medications, a short course of steroids, and physiotherapy. Surgical intervention was advised as a potential option should pain persist or worsen, or if weakness progressed over time.
23The Treatment and Assessment Plan dated May 14, 2024, prepared by Dr. Grigory Karmy, a certified Chronic Pain Physician with the Canadian Academy of Pain Management, indicates that the applicant exhibits symptoms consistent with chronic pain syndrome. Dr. Karmy noted that the pain is exacerbated by attempts to increase daily activities and has persisted for more than six months, beyond the expected healing period for the original injury. I find it convincing that at the time of assessment, the applicant was 24 months post-accident without resolution of symptoms, confirming that the pain has progressed from acute to chronic. Dr. Karmy also corroborated the presence of a T1–T2 herniated disc, which is not considered a minor injury, consistent with findings from other physicians being Dr.J. Finkelstien and Dr. R. Flamer.
24I find the respondent’s section 44 assessor, Dr. Y. Ko , a physiatrist, provided a report dated October 23, 2023. In his examination, Dr. Ko noted that the applicant demonstrated an active range of motion in the shoulder, lumbar spine, and hips, with no tenderness upon palpation. There was no evidence of structural musculoskeletal injury or nerve impingement. Although imaging revealed disc bulges, clinically there was no indication of cervical, thoracic, or lumbar radiculopathy. Dr. Ko concluded that the applicant sustained soft tissue injuries, which fall within the Minor Injury Guideline (MIG). Consequently, the OCF-18 treatment plans were deemed not reasonable or necessary.
25I find the opinions of the applicant’s assessors to be more convincing because… all three assessors Dr. Karmy, Dr. Finkelstein, and Dr. Flamer all agree that the applicant is suffering from a T1–T2 herniated disc, which is not considered a minor injury. In his report plan May 14, 2024, Dr. Karmy stated that the applicant’s injuries resulted from the accident and include aggravation of pre-existing headaches, right shoulder and shoulder blade pain, and upper and lower back pain. He also noted impairments affecting sleep and mood. Routine activities such as prolonged standing, walking, sitting, lifting, and bending exacerbate her pain, significantly limiting her ability to work, perform housekeeping tasks, and engage in pre-accident social and recreational activities. At the time of the accident, the applicant held two part-time jobs; since then, she has only been able to return to one job on a part-time basis, which she struggles to perform due to persistent pain. Dr. Karmy diagnosed chronic mechanical upper back pain associated with right-sided T1–T2 radiculopathy caused by disc herniation at the T1–T2 level. These findings corroborate the opinions of Dr. Finkelstein and Dr. Flamer.
26Accordingly, I find that the applicant has provided evidence of a chronic pain diagnosis and evidence of functional impairment due to pain.
27For these reasons, and on a balance of probabilities, the applicant has proven that she is removed from the MIG as she suffers from a chronic pain impairment.
Did the respondent comply with section 38(8) in denial letters for the plans dated January 10,2023 and March 13, 2023, from Russell Hill Chiropractic Clinic?
28I find that the respondent has not complied with s. 38(8) of the Schedule and has triggered the mandatory “shall pay” provision of 38(11) of the Schedule.
29Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice.
30The respondent agrees with the applicant that the denials are not compliant with the Schedule. The denials of the OCF-18 dated March 13, 2023 in the amount of $2,000.00, and the OCF-18 dated January 10, 2023 in the amount of $2,600.00, were served late, i.e. more than 10 business days after the respondent received the plans and, therefore, in violation of s.38(8) of the Schedule.
31The respondent argues however, that it is only required to pay for treatment incurred from the 11th day after it received the plans until the date of its compliant denials. I agree.
32The respondent argues that it is sufficient for the denials to say that the applicant’s injuries fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent points out the applicant submitted the disputed OCF-18s without corroborating evidence to support his claim. As a result, of the limited amount of medical documentation provided by the applicant, the respondent submits that its medical reasons were sufficient.
33The applicant submits that the respondent cannot rely on its late denial letters dated April 6 and July 31, 2023, as both deny the treatment plans solely on the basis on the MIG. The April 6 letter states: “Your claim remains subject to the Medical and Rehabilitation limit of $3,500.00. The amount of treatment that has been approved to date is $3,500.” The July 31 letter states: “… we are unable to approve the above goods, services, and/or assessments on the basis that you have an impairment that entitles you to receive goods or services under the Minor Injury Guideline.
34The notices are not compliant with s. 38(8) of the Schedule because they do not provide medical and other reasons for the denials.…The respondent does not dispute that these notices were provided outside the 10-business day timeline stipulated in s. 38(8) of the Schedule. As a result, pursuant to s. 38(11) of the Schedule, the respondent is prohibited from taking the position that the MIG applies with respect to these treatment plans. However, the sole reason provided in the denial letters is that the MIG applies.
35I find to date, the respondent has not issued any valid denial notices under section 38(8) with respect to the OCF-18s dated January 10 and March 13, 2023. The incurred and unpaid account from this clinic, as of April 30, 2024, is included at Tab T of the applicant’s submissions.
36The respondent argues that the applicant has not provided evidence that the disputed treatment plans are reasonable and necessary. However, this argument is not applicable in the present context. Under section 38(11)2, the applicant is not required to prove that the treatment plans are reasonable and necessary.
37The applicant cites the Reconsideration Decision of Executive Chair Lamoureux in M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT), where it was held that the term “reasonable and necessary” in section 15 does not apply to section 38(11)2. Requiring such an analysis would undermine the mandatory payment regime established by section 38(11)2. Once the Tribunal determines that the insurer failed to comply with section 38(8), the mandatory payment obligation under section 38(11)2 is triggered, and no further adjudication on reasonableness or necessity is required.
38I agree with the applicant. As stated, s. 15 does not apply to section 38(11)2. Requiring such an analysis would undermine the mandatory payment regime established by section 38(11)2.
39The respondent has not pointed me to a subsequent denial letter that complied with s. 38(8). I accordingly find that the OCF-18s dated January 10, 2023, and March 13, 2023, are payable pursuant to s. 38(11), once incurred and properly invoiced by the applicant.
Is the plan from Hydrohealth Evaluations submitted on June 18, 2024, reasonable and necessary?
40To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
41The treatment plan is reasonable and necessary.
42The disputed treatment plan, dated June 18, 2024, was for a chronic pain assessment. In support of the reasonableness and necessity of the plan, the applicant relies on the corresponding chronic pain report prepared by Dr. Grigory Karmy, a certified Chronic Pain Physician with the Canadian Academy of Pain Management, dated May 14, 2024.
43The respondent relies on the report of s. 44 assessor, Dr. Ko, physiatrist, dated, October 23, 2023.
44The applicant’s plan states the goals as pain reduction, pain assessment to evaluate the extent of the patient’s injury, return to work activities, tests include, orthopedic testing, palpation tests, symptoms monitoring, evaluation of posture and functional abilities. The injuries and sequela information states the applicant has chronic pain, SRVC disc disorder with radiculopathy, sprain and strain of joints and ligaments and other unspecified parts, sprain and strain of the thoracic spine, sprain and strain of the lumbar spine, headaches, dizziness, nausea, nervousness, sleep disorders, malaise, and fatigue. Dr. Karmy noted that the pain is exacerbated by attempts to increase daily activities and has persisted for more than six months, beyond the expected healing period for the original injury. I find convincing that at the time of assessment, the applicant was 24 months post-accident without resolution of symptoms, confirming that the pain has progressed from acute to chronic. Dr. Karmy also corroborated the presence of a T1–T2 herniated disc.
45I find that the applicant’s evidence more persuasive because the plan in dispute addresses chronic pain and functional limitations resulting from a non-minor injury. The persistence of symptoms for 24 months post-accident and the corroboration by multiple physicians, i.e. Dr. Finkelstein and Dr. Flamer, outweigh the respondent’s reliance on MIG and earlier improvement notes. I find that the applicant has established that further investigation into the applicant’s chronic pain complaints by way of a chronic pain assessment was warranted.
46For these reasons, and on a balance of probabilities, the treatment plan is reasonable and necessary.
Interest
47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable on the treatment plans in dispute.
ORDER
48I find that:
i. The applicant is removed from the MIG.
ii. The OCF-18s dated January 10 and March 13, 2023, are payable pursuant to s. 38(11) once incurred and properly invoiced by the applicant, plus applicable interest.
iii. The applicant is entitled to the OCF-18 for a chronic pain assessment, plus interest.
Released: January 14, 2026
Roderick Walker
Adjudicator```