Albert v. Definity Insurance Company
Licence Appeal Tribunal File Number: 24-011674/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:
Garner Albert
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Roderick Walker
APPEARANCES:
For the Applicant:
Kim Mohammed-Sieudhan, Paralegal
For the Respondent:
Bhavpreet Saini, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Garner Albert , the applicant, was involved in an automobile accident on October 8, 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, Definity 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 $3,919.58 for physiotherapy services, proposed by Alma Rehab Inc. in a treatment plan/OCF-18 (“plan”) dated February 20, 2024?
iii. Is the applicant entitled to $3,512.56 for physiotherapy services, proposed by Alma Rehab Inc. in a plan dated October 29, 2024?
iv. Is the applicant entitled to $2,208.83 for psychological services, proposed by Alma Rehab Inc. in a plan dated November 5, 2024?
v. Is the applicant entitled to $1,995.33 for a Psychological Assessment, proposed by Alma Rehab Inc. in a treatment plan dated January 17, 2024?
vi. Is the applicant entitled to $2,657.75 for a Chronic Pain Assessment, proposed by Ontario Independent Assessment Centre in a treatment plan dated September 13, 2024?
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’s injuries are predominately minor in nature and therefore subject to treatment within the monetary limits of the MIG.
4The applicant is not entitled to the treatment plans in dispute.
5No interest or award applies as no benefits are owing.
6The application is dismissed.
PROcedural ISSUES
7The respondent objects to the admission of tabs 6 and 7 of the applicant’s submissions, which consist of the clinic notes and records (CNRs) of the applicant’s family doctor, Dr. O. Olanrewaju from April 17, 2024, until August 9, 2024. The respondent submits that tabs 6 and 7 of the applicant’s submissions were never served on the respondent. The respondent states that it was prejudiced by not receiving the CNRs because they would have scheduled an insurer’s examination to determine the applicant’s entitlement to the benefits in dispute. The applicant has not provided any explanation for the failure to provide the CNRs in advance of this hearing. The respondent requests that these tabs be excluded as evidence in this hearing.
8I find that the missing CNRs consist of the applicant’s pain and anxiety complaints to Dr. Olanrewaju. I find these CNR entries are relevant to determine the issues in dispute. While I acknowledge the respondent’s submissions that it has been prejudiced by the late disclosure, I find that the probative value of the CNRs outweighs the prejudice to the respondent.
9Accordingly, I order, under the LAT Rules 3.1 and 9.3 that the applicant’s submissions at Tab 6 and at Tab 7 be admitted into evidence for the purposes of this hearing.
ANALYSIS
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 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.”
11An 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. In all cases, the burden of proof lies with the applicant. In this case, the applicant seeks removal from the MIG due to a chronic pain impairment and/or a psychological condition.
The applicant does not suffer from a chronic pain impairment.
12I find, on a balance of probabilities, that the applicant does not suffer from chronic pain with a functional impairment that warrants removal from the MIG.
13The applicant relies on the CNRs of Dr. O. Olanrewaju, family physician; the s. 25 assessment of Dr. T. Getahun, pain specialist and his report dated October 9, 2024; and a disability certificate (OCF-3) dated October 24, 2023, prepared by Dr. R. Singh, Chiropractor who lists the applicant’s injuries as: neck pain, muscle strain, sprain and strain of the cervical spine, thoracic spine, lumbar spine, other parts of the shoulder girdle, problems related to physical environment, other psychosocial circumstances and lifestyle. The OCF-3 states the duration of disability is 9 to 12 weeks in length. Also, the applicant relies on the disputed treatment plans prepared by Alma Rehab Centre from October 19, 2023, to November 5, 2024, for physiotherapy services. .
14The applicant states that he sustained a chronic pain impairment. He relies on the sixth edition of the American Medical Association’s (AMA) Guides to support his chronic pain position. The 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.
15The applicant states he meets three out of the six criteria for chronic pain, being: (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 needs; and (vi) development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors. The applicant states that he has a chronic pain impairment caused by the accident as indicated in the s. 25 report by Dr. Getahun dated October 9, 2024, where Dr. Getahun diagnosed the applicant with chronic myofascial strain of the cervical spine and lumbosacral spine, as well as chronic pain syndrome.
16The respondent relies on its s. 44 assessment by Dr. J. Stewart, GP, dated May 17, 2024. A physical examination was done in person. The examination confirmed full range of motion in all regions with some limited tenderness. Dr. Stewart concluded that there may have been some initial sprain/strain injury, but that at the time of the assessment, there was no ongoing accident-related musculoskeletal impairment. Dr. Stewart concluded that his injuries were subject to the MIG. .
17The respondent states that the applicant has suffered minor injuries because of the accident and should remain in the MIG. The respondent submits that a singular note in the family doctor records does not rise to the level of a chronic pain diagnosis. The respondent argues it is simply an indication of sequelae to soft tissue injuries. The respondent submits that the Tribunal has ruled previously that a mere indication of a chronic pain condition is insufficient to remove the applicant from the MIG.
18The respondent cites the Tribunal decision A.G. v Heartland Farm Mutual Inc., 2020 CanLII 42675 (ON LAT) to argue that chronic pain can be a sequelae of soft tissue injuries, and that chronic pain, to be removed from the MIG, “requires the applicant to prove that her chronic pain is not merely sequelae of the soft tissue injuries, but that it is the applicant’s predominant injury. A diagnosis of chronic pain without any discussions of the level of pain, its effect on the person’s function or whether the pain is bearable without treatment, will not meet the applicant’s burden to show that chronic pain is more than a sequela.”
19I find that the applicant does not suffer from chronic pain with functional impairment as a result of the accident. As I review the CNRs of Dr. Olanrewaju, he references chronic pain from the applicant’s own self reporting. I do not find that this singular entry of a chronic pain complaint warrants the applicant’s removal from the MIG. The family doctor doesn’t say in his entry on how the chronic pain has interfered with the applicant’s day to day function. Nor does the applicant report any restrictions in his activities due to pain. Dr. Olanrewaju prescribed medication for the applicant’s pain, however there is no evidence of a lack of functionality about the applicant in his entry.
20As I stated earlier, the AMA Guides’ provisions on chronic pain are not binding on this Tribunal in making any decision on an applicant’s chronic pain impairment; they are merely useful interpretive tools. When applying the AMA Guides criteria, I find that in this case, there is no evidence that the applicant has suffered any withdrawal from social milieu, including work, recreation, or other social contracts; failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; or development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors. I find the applicant has not directed me to any evidence that he meets the criteria within the AMA Guides. The applicant is currently back to work at his employment as a truck driverI find that the medical evidence produced does not support that the applicant meets the AMA Guides criteria for chronic pain.
21With respect to Dr. Getahun’s s. 25 report, I note that this examination was performed on the applicant virtually. I find this form of examination, completing a physical examination of the applicant virtually, is of limited value to diagnose the applicant for a chronic pain impairment. Dr. Getahun indicated that the applicant demonstrated moderately restricted range of motion of the cervical/lumbosacral spine. However, I find that an assessor is limited in his ability to assess a patient’s range of motion without physical examination. Dr. Getahun concluded that the applicant was suffering from chronic pain on the basis of his virtual examination that only showed some restricted range of motion.
22The applicant does not direct me to any other evidence to establish functional impairment due to pain. I find, on a balance of probabilities, that the applicant has not met his onus, and does not suffer from chronic pain with a functional impairment that warrants removal from the MIG.
The applicant does not suffer from a psychological condition.
23I find, on a balance of probabilities, that the applicant does not suffer a psychological condition as a result of the accident that would warrant removal from the MIG.
24The applicant relies on the CNR’s from his family doctor, Dr. Olanrewaju; a Psychological Assessment of Dr. K. Papazoglou, Psychologist, conducted on September 12, 2024; and an assessment done by social worker, P. Kaila on January 4, 2024.
25The applicant states that he has suffered from a psychological condition as a result of the accident. Dr. Olanrewaju on April 17, 2024, confirmed psychological signs of anxiety and trauma related to driving, and sleep disturbance due to nightmares. The applicant was assessed ith post-traumatic stress disorder (PTSD).
26The applicant states that Dr. Papazoglou recorded similar complaints as the family doctor and the social worker. In his s. 25 psychological report, Dr. Papazoglou found that the applicant’s score on the Beck Depression Inventory II, indicating that he was experiencing symptoms of depression in the severe range. Dr. Papazoglou diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood.
27The respondent relies on its s. 44 assessment report of Dr. Talebizadeh, Psychologist, dated May 17, 2024. The respondent submits that this report was completed in person, and the assessor reviewed all the available medical records in preparation for the report.
28Dr. Talebizadeh, in response to the self-reporting questionnaires, found the applicant’s profile was invalid and therefore uninterpretable. Further, the applicant did not meet the diagnostic criteria for any psychological diagnosis as a result of the accident. Dr. Talebizadeh concluded that the applicant was subject to the MIG.
29I prefer the opinion of Dr. Talebizadeh over that of Dr. Papazoglou. In her assessment, Dr. Talebizadeh reported that the applicant’s responses on the self‑report questionnaires resulted in an invalid and therefore uninterpretable profile. Consequently, Dr. Talebizadeh concluded that the applicant did not meet the diagnostic criteria for any accident‑related psychological disorder and was appropriately classified under the MIG. In contrast, there appears to be a disconnect between Dr. Papazoglou’s reporting and the diagnosis ultimately rendered. This discrepancy is likely attributable to the absence of validity testing and the lack of interpretation of the questionnaire‑based measures, which are standard requirements when relying on self‑report psychological testing. Dr. Talebizadeh’s findings, as set out in her report dated May 17, 2024, support this concern.
30For the above reasons, I find the applicant, on the balance of probabilities has not meet his onus to prove an accident-related psychological impairment and remain in the MIG.
31Since I have found that the applicant’s injuries are predominantly minor and can be treated within the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.
Interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to any interest because no benefits are payable.
Award
33Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. I find that since no benefits are payable, no benefits have been unreasonably withheld or delayed. The applicant is not entitled to an award.
ORDER
34On the totality of the evidence, I order that:
i. The applicant’s injuries are predominately minor, and the applicant remains in the MIG.
ii. The applicant is not entitled to the treatment plans in dispute or interest.
iii. The respondent is not liable to pay an award under s. 10 of Reg. 664.
iv. The application is dismissed.
Released: March 18, 2026
__________________________
Roderick Walker
Adjudicator