Licence Appeal Tribunal File Number: 24-006162/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:
Daniel Aaron Sertl
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Leo Demarce
APPEARANCES:
For the Applicant:
Dayana Soto Santana, Paralegal
For the Respondent:
Robbie Brar, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Daniel Aaron Sertl, the applicant, was involved in an automobile accident on July 6, 2023, 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, Intact 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? Note: At the case conference, the parties agreed the MIG limits had not been exhausted.
ii. Is the applicant entitled to $1,884.00 for Physiotherapy Services, proposed by New Hope Physiotherapy in a treatment plan/OCF-18 (“plan”) dated June 8, 2024?
iii. Is the applicant entitled to the plans proposed by 101 Physiotherapy, as follows:
a. $2,153.72 for Physiotherapy Services, in a plan dated April 9, 2024;
b. $4,209.72 for Physiotherapy Services, in a plan dated July 13, 2023; and
c. $2,676.00 for Physiotherapy Services, in a plan dated November 8, 2023?
iv. Is the applicant entitled to the assessments proposed by 101 Assessments, as follows:
a. $3,790.07 for Psychological Services, in a plan dated November 20, 2023;
b. $2,460.00 for a Neurological Assessment, in a plan dated April 11, 2024;
c. $2,460.00 for a Psychological Assessment, in a plan dated September 18, 2023; and
d. $2,460.00 for Orthopaedic Assessment, in a plan dated November 23, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is removed from the MIG because of a psychological impairment and chronic pain with a functional impairment.
4I find that all the treatment plans in dispute are reasonable and necessary.
5Interest under s.51 of the Schedule is payable on all treatment plans in dispute.
PROCEDURAL ISSUES
The applicant’s submissions page length exceed the limit set out in the CCRO
6I deny the respondent’s request to disregard the applicant’s submissions that exceed 10 pages. The submissions are 11 pages in length.
7The respondent claimed in their written submissions that the applicant has exceeded its page limit prescribed by the Case Conference Report and Order (“CCRO”) and requests that the additional page should be disregarded upon reading.
8The CCRO states in paragraph 15 that the hearing adjudicator has the discretion to determine whether to consider submissions that do not comply with the filing requirements. The respondent has not identified any prejudice arising from the additional page, and the applicant would be prejudiced by their exclusion. Therefore, I exercise the discretion granted to me to deny the respondent’s request.
The respondent filed a sur-reply objecting to content in the applicant’s reply
9In the CCRO Adjudicator Langley set out the submissions for each party and there is no mention of a sur-reply in the order.
10Section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) grants the Tribunal the power to determine its own procedures and practices. I find that, in this circumstance, Adjudicator Langley exercised his authority under this section in order to issue an order that facilitated a fair exchange of submissions. Sur-replies are narrowly granted when new issues were raised in reply that could not be reasonably foreseeable and could not have been addressed in the initial submissions. This limit exists to prevent an endless back-and-forth between parties. In this case, I find that the respondent has met this high threshold in demonstrating that a sur-reply be granted. I found that the respondent raised issues in the reply that could not have been reasonably foreseeable or addressed in the initial submissions. Therefore, I allowed these submissions.
11I find that tab C, D, E, F and G of the applicant’s reply submissions is not new evidence Tab C refers to the CNR from NeuroPath Centre relating to the imaging the respondent references the evidence in their submissions at paragraph 14. Tabs D through G are citations that support the applicant’s legal arguments as referenced by the respondent.
12The respondent filed sur-reply submissions in response to the applicant’s reply submissions. The respondent requests that the sur-reply submissions be permitted given the serious issues with the applicant’s reply submissions as they raise prejudice upon the respondent. The respondent claims that the applicant introduced new evidence in their reply which is strictly prohibited.
13The respondent points to tabs C through G of the applicant’s reply submissions are new items and should not be considered by the Tribunal. Reply submissions should not present new arguments involving case law not already referenced, that new case law is not required in a reply.
14The respondent also submits in the sur-reply that the applicant cannot introduce medical evidence not already relied upon by either party in their original submissions.
15The applicant filed a sur-sur-reply to address the objections raised by the respondent in their sur-reply. The applicant denies that new evidence was introduced, that the documents and submissions provided were prepared only to:
i. Clarify records that elaborate evidence already referenced in the applicant’s submissions;
ii. Respond to direct allegations or omissions raised by the respondent; and
iii. Case law cited in reply to the new legal positions raised by the respondent.
16The applicant submits that the medical records in the applicant’s reply are not newly obtained or post-dated documents and had been submitted to the respondent during the claims process and were also available at the time of the case conference.
17The applicant submits that the inclusions are not new evidence, rather they are direct rebuttals, necessitated by the content of the respondent’s materials. The applicant states that the materials were necessary out of procedural fairness in order to correct misstatements from the respondent and to respond to issues newly raised.
18The applicant concludes that it is the hearing adjudicator’s discretion to consider such material where it serves the interests of justice.
19In careful consideration of the materials that are in dispute, namely tabs C through G of the applicant’s reply submissions, I find that: tab C through G are to be allowed because the respondent addresses the imaging in his submissions at paragraph 14.
20Any other arguments in either of the sur-replies by either party will be disregarded as they do not pertain to the submissions other than to further arguments already introduced in their submissions.
ANALYSIS
The applicant is removed from the MIG
21I find that the applicant has satisfied their burden that he is removed from the MIG based on a diagnosis of a psychological impairment.
22Section 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.”
23An 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.
24The applicant submits that he should be removed from the MIG on the basis of chronic pain with a functional impairment and a psychological impairment.
25The applicant relies on the psychological assessment of Dr. Konstantinos Papazoglou, psychologist, dated October 30, 2023 that provided the diagnosis of the Adjustment Disorder. Dr. Papazoglou details some of the applicant’s issues as:
i. Suffers from severe sleep disturbance,
ii. Fatigue,
iii. Anxiety,
iv. Daily functioning has deteriorated,
v. Disengaged from social activities, and
vi. Travel related anxiety.
26Dr. Papazoglou recommended psychological treatment, driving anxiety assessment, chronic pain assessment, sleep study and occupational therapy.
27The respondent submits that the applicant’s injuries are minor and fully treatable within the MIG. The respondent relies on the following insurer assessments.
i. In-person physician assessment prepared by Dr. Chaudhry, physician dated January 10, 2024, conclusion that physical injuries are minor.
ii. Paper review by Dr. Chaudhry dated February 13, 2024 concluded no new significant and clinically relevant diagnostic imaging reports have been provided.
iii. Addendum report by Dr. Chaudhry dated August 20, 2024 concluded that the newly provided MRI of the applicant’s lumbar spine is suggestive of multilevel degenerative disc disease. The injuries remain minor in nature.
iv. Psychological assessment report of Dr. Marc Mandel, psychologist(?), dated February 7, 2024, concluding that the applicant did not suffer from any psychological injuries related to the accident.
28The respondent submits that in Dr. Mandel’s assessment the applicant
i. exhibited no signs of personal neglect,
ii. was pleasant and cooperative,
iii. was able to recall the details of the accident in a matter-of-fact manner.
iv. self-reported that:
a. he returned to work following the accident and has been working regular hours and duties,
b. he had a slip and fall injury 2 weeks prior to the assessment with Dr. Mandel and has been off work due to that incident,
c. he did not attend any psychological assessments and is not receiving any psychological treatment, and
d. his family physician has not made any referrals for psychological or psychiatric intervention that the applicant is aware of.
29The respondent submits that based on the observations of the applicant, and his self-reported circumstances, that Dr. Mandel reached the conclusion that the applicant is not suffering from any psychological impairments.
30In the applicant’s reply submissions he submits the following:
i. The applicant went back to work on July 7, 2023 with accommodations.
ii. The applicant stopped working in December of 2024, applied for LTD and continues to receive LTD benefits.
iii. Dr. Mandel’s report is inaccurate in that:
a. The applicant had attended a psychological assessment where he was diagnosed with the Adjustment Disorder.
b. His family physician diagnosed the applicant with anxiety and depression.
31The applicant submits that Dr. Mandel’s report should be given less weight as it did not appreciate the severity of the psychological diagnoses and the corroboration from the applicant’s treating professionals and is inconsistent with the broader medical evidence.
32I agree with the applicant and find that the diagnosis of Adjustment Disorder takes the applicant out of the MIG. I find that the psychological report and diagnosis from Dr. Papazoglou and the medical history of pain and anxiety from multiple sources including the applicant’s family physician are consistent, and I put weight on this medical evidence.
33I find on a balance of probabilities that the applicant suffers from an accident-related psychological impairment and that he is removed from the MIG. I give less weight to the respondent’s report from Dr. Mandel because in my view, it is not consistent with the preponderance of evidence before me, which indicates that the applicant has a diagnosed, accident-related adjustment disorder.
34Given this finding, it is not necessary to make a determination as to whether the applicant should be removed from the MIG on the basis of chronic pain.
35However, I acknowledge the considerable evidence regarding the applicant’s chronic pain as established in the applicant’s submissions, and clinical notes and records from the treating physicians and treatment centres. I give that evidence weight when I consider the treatment and assessment plans below.
The treatment and assessment plans are reasonable and necessary
36I find that the treatment and assessment plans are reasonable and necessary.
37To 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.
Psychological treatment in the amount of $3,790.07 and psychological assessment in the amount of $2,460.00
38Based on my finding that the applicant has a diagnosis of Adjustment Disorder I find that the applicant is entitled to the psychological treatment and assessment plans as they are reasonable and necessary.
39The goals of the psychological assessment are to assess the applicant’s psychological condition and recommend treatment. The goals of the psychological treatment are to reduce pain, depressive symptomatology, improve emotional status, and ultimately to return to activities of normal living.
40The applicant’s complaints as evidenced in the clinical notes and records of the family physician and treating clinics, the disputed plans, and the assessors’ reports, are of depression, anxiety, physical injuries, sleep problems, cognitive issues, and difficulty completing activities of daily living. The psychological report of Dr. Papazoglou also supports these findings.
41In light of the applicant’s psychological condition, I find that there are grounds to establish that the applicant has a psychological condition that warrants and investigation by way of an assessment. I also find that the need for the psychological treatment is corroborated by the preponderance of medical evidence before me, as set out above.
42I find on a balance of probabilities that the psychological treatment and assessment are both necessary and reasonable.
Neurological Assessment in the amount $2,460.00 and Orthopaedic Assessment in the amount of $2,460.00
43I find that the neurological and the orthopaedic assessments are both necessary and reasonable.
44The neurological assessment’s goal is to provide a framework on how to reduce pain and increase strength and range of motion through a neurological exam and analyze post-concussion symptoms, psychological and sleep impairments, and severity of the accident/traumatic symptoms.
45The orthopaedic assessment’s goal is to provide a framework on how to reduce pain and increase strength and range of motion through a full body assessment in order to understand the applicant’s orthopaedic and physiotherapy requirements.
46The applicant presented significant evidence relating to the applicant’s ongoing pain and physical limitations since the accident. This evidence includes:
i. CNR of the applicant’s family physician Dr. Donovan Sequeira that report numerous complaints of pain, medical notes for time off work, recommendations for physiotherapy, prescriptions for pain medication.
ii. CNR from William Osler Health Network stating that abnormalities present in diagnostic imaging of the spine correlate with his ongoing accident-related pain and functional impairment.
iii. The applicant attends to 101 Physiotherapy Rehabilitatin Centre for physiotherapy treatment on a weekly basis.
iv. Psychological report from Dr. Papazoglou dated November 10, 2023 states that the applicant is assessed to be at high risk of developing chronic pain disorder.
47The respondent relies on the IE reports of Dr. Chaudhry and Dr. Mandel to refute the necessity and reasonableness of the treatment plans, and that the applicant should remain within the MIG. For the reasons stated above I have found that the applicant is not within the MIG and give less weight to these reports in favour of the applicant’s evidence.
48Based on the evidence that the applicant has pointed to in their submissions regarding his ongoing physical and psychological injuries, I find the orthopaedic and the neurological assessments to be both reasonable and necessary.
Physiotherapy treatments in the amount $1,884.00, $2,153.72, $4,209.72, and $2,676.00
49I find that the physiotherapy treatment plans are reasonable and necessary. The goals of these treatment plans are to reduce pain, increase strength and range of motion, and to ultimately return the applicant to activities of normal living.
50The applicant presented significant evidence relating to the applicant’s ongoing pain and physical limitations since the accident. This evidence includes:
i. CNR of the applicant’s family physician Dr. Donovan Sequeira that report numerous complaints of pain, medical notes for time off work, recommendations for physiotherapy, prescriptions for pain medication.
ii. CNR from William Osler Health Network stating that abnormalities present in diagnostic imaging of the spine correlate with his ongoing accident-related pain and functional impairment.
iii. The applicant attends to 101 Physiotherapy Rehabilitatin Centre for physiotherapy treatment on a weekly basis.
iv. Psychological report from Dr. Papazoglou dated November 10, 2023 states that the applicant is assessed to be at high risk of developing chronic pain disorder.
51The respondent relies on the IE reports of Dr. Chaudhry and Dr. Mandel to refute the necessity and reasonableness of the treatment plans, and that the applicant should remain within the MIG. For the reasons stated above I have found that the applicant is not within the MIG and give less weight to these reports in favour of the applicant’s evidence.
52The applicant has demonstrated that his ongoing physical injuries require ongoing treatment. I find that these treatment plans are both reasonable and necessary.
Interest
53Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on all overdue benefits.
ORDER
54For the reasons above, I find the following:
i. The applicant is not subject to the Minor Injury Guideline limit for treatment.
ii. The applicant is entitled to:
a. $1,884.00 for Physiotherapy Services
b. $2,153.72 for Physiotherapy Services
c. $4,209.72 for Physiotherapy Services
d. $2,676.00 for Physiotherapy Services
e. $3,790.07 for Psychological Services
f. $2,460.00 for a Neurological Assessment
g. $2,460.00 for a Psychological Assessment
h. $2,460.00 for Orthopaedic Assessment
i. Interest on any overdue benefits
Released: March 17, 2026
Leo Demarce
Adjudicator