Licence Appeal Tribunal File Number: 24-006571/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:
Joseph Gillis
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Laura Goulet
APPEARANCES:
For the Applicant: Sevda Guliyeva, Paralegal
For the Respondent: Riley McIntyre, Counsel
HEARD: By way of written submissions
OVERVIEW
1Joseph Gillis, the applicant, was involved in an automobile accident on June 28, 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 the respondent, Unifund Assurance 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 $2,486.00 for a psychological assessment proposed by Q Medical in a treatment plan/OCF-18 dated June 21, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.
4Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plan.
5The applicant is not entitled to interest.
6The application is dismissed.
PROCEDURAL ISSUE
7I note that the applicant made submissions with respect to his entitlement to an OCF-18 dated October 12, 2022 for psychological services in the amount of $3,416.56.
8The respondent did not make submissions with respect to this OCF-18.
9This OCF-18 is not listed as an issue in dispute in the Case Conference Report and Order dated October 1, 2024. Further, the applicant did not bring a motion requesting that it be added as an issue, nor did he make submissions requesting that it be added.
10For these reasons, in this decision, I have not considered the applicant’s entitlement to the OCF-18 dated October 12, 2022 in the amount of $3,416.56.
ANALYSIS
Applicability of the MIG
11Section 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.”
12An 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.
13The applicant submits that he should be removed from the MIG based on a pre-existing condition, as well as a psychological condition caused by the accident. The applicant also alludes to the fact that he should be removed from the MIG due to chronic pain.
The applicant does not have chronic pain that would remove him from the MIG
14The applicant has not met his burden of proving on a balance of probabilities that he should be removed from the MIG due to chronic pain.
15Although the applicant does not make specific submissions with respect to chronic pain, he alludes to the fact that he suffers from chronic pain with functional impairment in his references to the medical evidence.
16The applicant refers to the following evidence of accident-related injuries from the clinical notes and records (“CNRs”) of his family physician, Dr. Ashraf Ghali:
i. The applicant called Dr. Ghali, on June 28, 2021, reporting that he had very mild neck pain from the accident, but that he had no headache or dizziness.
ii. On July 2, 2021, the applicant reported to Dr. Ghali that his neck pain was worse, and that he started to have right sided mid back pain but that there were no shoulder issues. Dr. Ghali noted there was full range of movement in the neck, but it was reduced looking right and left. Dr. Ghali recommended ice, Tylenol, and prescribed ten tablets of baclofen. Dr. Ghali referred the applicant for a neck x-ray.
iii. X-rays of the cervical spine taken on July 5, 2021, indicate that there were no compression fractures, however multilevel degenerative changes were noted.
iv. During a phone call with Dr. Ghali on July 14, 2021, the applicant reported ongoing pain bilaterally in the neck and going to the shoulders. Dr. Ghali recommended Tylenol and a trial of physiotherapy.
17In response, the respondent points to the following evidence from Dr. Ghali’s CNRs:
i. The applicant’s prescription for baclofen was never renewed beyond the initial ten days.
ii. After July 14, 2021, Dr. Ghali’s CNRs contain no complaints with respect to the accident or any complaints of physical pain symptoms of any kind.
iii. At the applicant’s physical exam on February 25, 2022, Dr. Ghali’s CNRs indicate that the applicant had no complaints.
18The applicant submits that the following evidence contained within an OCF-18 dated October 8, 2021 underscores that three and a half months after the accident, his impairment profile was well beyond the transient sprain/strain contemplated by the MIG:
i. Vinaya Chitgopkar, physiotherapist, records a WAD II neck injury, lumbar sprain, and tension-type headaches accompanied by significant stiffness in the applicant’s neck and low back making it difficult to bend or sit.
ii. The applicant submits that, despite an initial block of treatment, the applicant still exhibits pain, restricted cervical and lumbar range of motion, and functional interference with routine activities. The applicant argues these are objective findings incompatible with a resolved minor injury.
iii. Three of the goals of the OCF-18 are pain reduction, increased range of movement, and a return to normal living. The applicant submits these demonstrate that meaningful functional recovery has not yet been achieved.
iv. The plan’s proposed ten week, 35 visit schedule confirms the persistence and breadth of impairment.
19I am not persuaded by the applicant’s argument that this OCF-18 demonstrates that his injuries should remove him from the MIG. It is clear from the OCF-18 that the applicant’s physiotherapist was of a different view. I note that Vinaya Chitgopkar indicates in the OCF-18 dated October 8, 2021, that the applicant’s impairment was predominantly a minor injury as referred to in the MIG. Further, I note that the OCF-18 indicates that the applicant’s neck and low back range of motion had improved since the last plan.
20The applicant also submits that the OCF-18 dated June 21, 2022 that was prepared by Dr. Dan Shlepakov, chiropractor, seeking funding for a psychological assessment, supports immediate removal from the MIG for the following reasons:
i. The injuries listed have reached well beyond soft-tissue strain.
ii. The OCF-18 indicates that the eighty-year-old applicant reports low mood, fatigue, irritability, hyper-vigilance in public, and a marked slowdown in activities of daily living, to the point that social interactions and routine errands are now curtailed. These behavioural changes, coupled with pervasive pain, have become primary barriers to recovery.
iii. The OCF-18 proposes a structured clinical interview, psychometric testing, and corroborative document review. The applicant submits this is precisely the methodology the Tribunal has recognized as best practice when evaluating chronic pain and mood disturbance in older adults.
iv. The applicant argues that, because the plan squarely addresses impairments and functional deficits that fall outside the MIG definition, its submission supports immediate removal from the MIG.
21The applicant further refers to the s. 25 psychology assessment that was conducted by Dr. Tony Toneatto, Ph. D., C. Psych. on July 18, 2022. During the assessment, the applicant reported persistent neck, head and right leg pain that makes bending, lifting, twisting, prolonged standing, and walking for long periods painful. The applicant also reported that he relied on his son for housekeeping, he bathed and dressed more slowly, attended social functions less frequently, and struggled to concentrate on reading. When asked to rank his biggest barriers to recovery, the applicant identified pain in the lower back, neck and shoulders, mechanical restrictions on bending and lifting, insomnia, and pervasive fatigue.
22The respondent refers to the s. 44 psychological assessment completed on September 21, 2022 by Dr. Douglas Saunders, psychologist. During the assessment, the applicant reported that he performed most of the household chores, that he was independent for his personal activities of daily living, that he continued to socialize with his friends, and went on walks in his spare time.
23I am not persuaded by the applicant’s reporting to Dr. Shlepakov and to Dr. Toneatto because of the following inconsistencies. Although the applicant reported “persistent” pain complaints to Dr. Toneatto on July 18, 2022, and “pervasive” pain to Dr. Shlepakov on June 21, 2022, the applicant reported no complaints of pain to Dr. Ghali during his physical exam on February 25, 2022. Further, with respect to his functional limitations, the applicant reported to Dr. Toneatto that he relied on his son for housekeeping, whereas he reported to Dr. Saunders on September 21, 2022 that he performed most of the household chores. The applicant also reported to Dr. Shlepakov a marked slowdown in activities of daily living to the point that social interactions were curtailed, whereas he reported to Dr. Saunders that he was independent for his personal activities of daily living and that he continued to socialize with friends and take walks.
24The applicant also argues that absence of repetitive physician visits often reflects stoicism in older patients, and not recovery. The applicant does not support this submission with evidence.
25I am not persuaded on a balance of probabilities that the applicant should be removed from the MIG due to chronic pain. Based on the applicant’s evidence, he did not make any pain complaints because of the accident to Dr. Ghali after July 14, 2021, less than three weeks after the accident. Further, the applicant does not direct me to evidence of any complaints of functional impairment that were made to Dr. Ghali or that Dr. Ghali formed the opinion that the applicant’s accident-related pain resulted in functional limitations. I find that as the applicant’s family physician, Dr. Ghali, would be in the best position to provide an opinion in this regard. In addition, as indicated above, the applicant’s reporting of accident-related physical complaints to Dr. Toneatto, Dr. Shlepakov, and Dr. Ghali was inconsistent, as was his reporting of functional limitations to Dr. Toneatto, Dr. Shlepakov, and to Dr. Saunders.
26For these reasons, I find that the applicant has not demonstrated on a balance of probabilities that he suffers from chronic pain with functional impairment because of the accident that would remove him from the MIG.
The applicant does not have a pre-existing condition that would remove him from the MIG
27The applicant has not met his burden of proving on a balance of probabilities that he should be removed from the MIG due to a pre-existing condition.
28The applicant relies on the OCF-18 dated June 21, 2022, pointing out that the plan indicates that pre-existing heart issues could affect his response to treatment. The applicant also relies on the x-rays of the cervical spine taken on July 5, 2021, arguing that even if all soft-tissue symptoms have fully abated, which they have not, the documented multi-level cervical and lumbar degeneration in an 80-year-old patient is “compelling medical evidence” that maximal recovery cannot reasonably occur within the MIG, precisely the scenario that s.18(2) was written for.
29The applicant further submits that s. 18(2) of the Schedule speaks to “any” pre-existing condition that impedes maximal recovery. The applicant argues that even “mild” degeneration in an octogenarian markedly slows tissue healing. The applicant does not refer to medical evidence in support of this submission.
30The respondent refers to the OCF-23 dated July 20, 2021 that was completed by Vinaya Chitgopkar, pointing out that Ms. Chitgopkar confirmed that the applicant did not have any disease, condition or injury prior to the accident that could affect his response to treatment, nor did Ms. Chitgopkar identify any barriers to recovery.
31I find that the applicant has not met the first part of the test set out in s. 18(2) of the Schedule because he has not directed me to any pre-accident medical evidence that he has pre-existing conditions, as required by s. 18(2). Although the applicant refers to an OCF-18 dated June 21, 2022, which indicates that he has “pre-existing heart issues,” the applicant does not direct me to pre-accident medical documentation corroborating the existence of the heart issues. With respect to the x-rays of the cervical spine showing multilevel degenerative changes, I find that this not a “documented pre-existing condition” as required by s. 18(2) because the x-rays were taken on July 5, 2021, after the accident. Again, the applicant does not direct me to x-rays of the cervical spine that were taken prior to the accident.
32Further, I find that the applicant has not met the second part of the test set out in s. 18(2) of the Schedule, because he does not point to compelling medical evidence stating that his condition precludes recovery if he is kept within the MIG. The applicant argues that the imaging documenting multi-level cervical and lumbar degeneration in an 80-year-old patient is “compelling medical evidence” that maximal recovery cannot reasonably occur within the MIG. I find that these are the applicant’s submissions, made without an evidentiary basis. It is well settled that submissions are not evidence.
33For these reasons, I find that the applicant has not met his burden of demonstrating on a balance of probabilities that he should be removed from the MIG due to a pre-existing condition.
The applicant does not have a psychological condition as a result of the accident that would take him out of the MIG
34The applicant has not met his burden of proving on a balance of probabilities that he has a psychological condition as a result of the accident that would take him out of the MIG.
35The applicant relies on Dr. Toneatto’s July 18, 2022 assessment, where the applicant reported irritability, becoming easily angered, occasional feelings of low mood, sadness, and anxiety, vigilance as a pedestrian, as well as insomnia and interrupted sleep causing fatigue. Based on a review of some correspondence, an OCF-23 dated July 20, 2021, the OCF-18 dated October 8, 2021, an interview, as well as the results of five psychometric tests, Dr. Toneatto provided a provisional diagnosis of: Somatic Symptom Disorder with predominant pain, persistent, Unspecified Trauma and Stressor-Related Disorder, and Major Depressive Disorder, Mild. Dr. Toneatto opined that the applicant’s injuries fall outside the Schedule’s definition of a minor injury, and that the applicant would not be able to fully recover from his psychological impairments under the MIG.
36The respondent submits that Dr. Toneatto’s opinion that the applicant suffers from a psychological impairment is inconsistent with the treatment records. The respondent points out that the applicant did not report any psychological symptoms to Dr. Ghali before or after the accident. The respondent also points out that none of the treatment records contain a single reference to any psychological symptoms after the accident.
37The applicant submits that the family doctor’s silence does not negate Dr. Toneatto’s diagnoses supported by objective testing.
38The applicant also relies on the OCF-18 for a psychological assessment dated June 21, 2022, pointing out that the plan’s goals and objectives relate to psychological issues, and that Part 9 identifies possible psychological barriers, i.e., irritability, low moods, and fatigue. The applicant submits that Dr. Shlepakov expressly states that a comprehensive psychological assessment is needed to provide recommendations to overcome these barriers and facilitate recovery.
39I am not persuaded that the proposed OCF-18 dated June 21, 2022 is evidence of a psychological condition because it was prepared by a chiropractor. I find that under ss. 3 and 4 of the Chiropractic Act, 1991, SO 1991, c. 21, it is not within a chiropractor’s scope of practice to diagnose psychological impairments. In any event, I place little weight on Dr. Shlepakov’s opinion because, according to the OCF-18, it was formed based on an interview with the applicant, and there is no indication that he conducted any testing or reviewed medical documentation.
40The respondent also refers to the psychological assessment conducted by Dr. Saunders on September 21, 2022, submitting that the only specific mood or psychological complaint the applicant made was describing his mood as “a bit irritable.” Dr. Saunders administered three psychological tests and opined that the test results indicated a diagnosis of at most a mild elevation of psychological symptoms that does not meet clinical criteria for impairment. I am persuaded by the findings in this report because they are consistent with the applicant’s lack of reporting of psychological symptoms to his family doctor and treatment providers.
41I am not persuaded that the applicant has a psychological condition because of the accident based solely on symptoms listed on the OCF-18 dated June 21, 2022 and Dr. Toneatto’s assessment. The applicant has not directed me to evidence that he reported any psychological symptoms resulting from the accident to his family doctor or any other treatment provider, other than to the author of the disputed OCF-18 dated June 21, 2022. In addition, I place less weight on Dr. Toneatto’s findings because they are based in part on the applicant’s reporting, and as indicated above, I find that the applicant has been inconsistent in his reporting Dr. Toneatto, Dr. Shlepakov, Dr. Ghali, and Dr. Saunders.
42For these reasons, I find that the applicant has not met his burden of demonstrating on a balance of probabilities that he has a psychological condition because of the accident that would take him out of the MIG.
43For the reasons set out above, I find that the applicant’s injuries are predominantly minor as defined in s.3 of the Schedule and therefore subject to treatment within the MIG funding limit.
44As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plan in dispute.
Interest
45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
ORDER
46For the above reasons, I find:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG.
ii. Since the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG, it is not necessary to determine the reasonableness and necessity of the disputed treatment plan.
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
iv. The application is dismissed.
Released: January 13, 2026
Laura Goulet
Adjudicator