Licence Appeal Tribunal File Number: 24-002538/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:
Ian Karvelas
Applicant
And
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Estella Muyinda
APPEARANCES:
For the Applicant: Ivy So, Paralegal
For the Respondent: Sina Nastrani, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ian Karvelas, the applicant, was involved in an automobile accident on September 23, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
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 limit? (MIG) Note: at the case conference, the parties agreed the MIG limits have not been exhausted.
Is the applicant entitled to $3,330.40 for physiotherapy services, proposed by Good Health Rehab Centre in a treatment plan/OCF-18 (“plan”) dated March 9, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
4Resolved: the applicant withdrew issue 3 as laid out in the Case Conference Report and Order in the amount of $2,427.13, for a psychological assessment proposed by Excel Medical Diagnostic in a treatment plan dated March 15, 2023.
RESULT
5I find that the applicant has not met his burden in establishing that his accident-related injuries warrant removal from the MIG.
6As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
7The applicant is not entitled to interest.
8The application is dismissed.
ANALYSIS
Minor Injury Guideline
9I find that the applicant has not met his onus to establish that his accident-related injuries fall outside the definition of a “minor injury,” as set out in s. 3(1) of the Schedule.
10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury.
11Section 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 person 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 from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
13In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
14The applicant submits that he should be removed from the MIG on the ground that he sustained chronic pain because of the accident. The respondent disagrees.
15The applicant submits that he has had ongoing pain for longer than 3 months. The applicant states that his chronic pain has an identifiable cause which comes from the partial tears in the left elbow and left knee. Therefore, because of the chronic pain, the applicant submits he warrants removal from the MIG.
16I find that the applicant’s injuries included lacerations, in particular, a partial tear in the patellar tendon and a small tear in the left elbow, sprain and strain of shoulder joint, sprain and strain of the wrist are as defined in s.3(1) of the schedule. Additionally, I find that the applicant injuries would be kept within the MIG confines because he does not have a pre-existing condition that would establish that their accident-related injuries fall outside of the MIG, or, under s. 18(2). However, the applicant submits that he suffers from chronic pain with functional limitations that he claims warrant his removal from the MIG.
17The applicant reported to the s.44 assessor, Dr. Jennifer Gordon, physiatry, that he did not visit his family doctor following the accident or a walk-in clinic. He followed up with Dr. Gayathiri Gangaharan, chiropractor for a physiotherapy assessment and physiotherapy sessions.
18The applicant submits that because of the accident, he sustained injuries to his head, neck, shoulders and back. He submits that he suffered from headaches, nervousness, anxiety, and sleep issues. As a result, the applicant submits that he developed chronic pain with functional limitations and chronic pain syndrome.
19The applicant submits clinical notes and records from Good Health Rehab Clinic, that show that he attended the clinic numerous times to address the pain he was experiencing. The applicant relies on the ultrasound reports requested by Dr. James Savouries, family doctor, that show that he had a tear in the common 6x4, extensor tendon, and left knee and a partial thickness tear patellar tendon.
20The applicant submits that he should be removed from the MIG on the ground that he sustained chronic pain because of the accident. The respondent disagrees.
21The respondent relies on the s.44 assessment of the Insurer’s Examination (IE) Dr. Jennifer Gordon, physiatrist, to state that the applicant has not provided any compelling medical evidence to suggest that his injuries fall outside of the MIG. The respondent states that Dr. Gordon also reviewed the applicant’s X-rays and Ultrasound imaging reports and she opined, that from a musculoskeletal perspective, the applicant's injuries meet the criteria of a Minor Injury as described in the Minor Injury Guideline.
22The respondent submits that other than treatment records at Good Health Rehab, the applicant has not produced any clinical notes or record indicating physical complaints to a health practitioner after the subject accident. Further, the respondent asserts that the applicant's minor injuries have not impacted his ability to complete his seemingly physical job duties. Thus, the respondent asserts, that the applicant has not submitted corroborating medical evidence from his medical service providers that would help establish his experience of chronic pain.
23The applicant submits that he meets at least three of the six criteria for chronic pain as outlined in the American Medical Association’s Guides (“AMA Guides”), with a functional impairment sufficient to warrant removal from the MIG.
24While the AMA Guides are not incorporated in the Schedule, this Tribunal has consistently applied them as a useful interpretive tool for chronic pain.
25The six criteria laid out in the AMA Guides to assess chronic pain are as follows:
Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
Excessive dependence on health care providers, spouse, or family.
Secondary physical deconditioning due to disuse and/or fear–avoidance of physical activity due to pain.
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.
Development of psychosocial sequelae after the initial incident, including the pain he was experiencing. anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
26The applicant submits that he meets the following criteria:
Criterion 2: Excessive dependence on health care providers, spouse, or family.
Criterion 3: Secondary physical deconditioning due to disuse and/or fear–avoidance of physical activity due to pain.
Criterion 5: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.
Criterion 2: Excessive dependence on health care providers, spouse, or family.
27The applicant asserts that he has been excessively dependent on Good Health Rehab to treat his pain following the accident, it was recorded in Good Health Rehab’s clinical notes and records that treatment was provided from September 2021 to December 2022 more that one year after the accident and well beyond the period prescribed by the MIG.
28I note that the applicant relies on the clinical notes by Good Health Rehab. that reveal he received chiropractic and physiotherapy treatment from various treating professionals, including, Dr. Gayathri Gangadharan, chiropractor and Yashaswini Deepak Bajaj, physiotherapist. I find that that the applicant has proven that he is excessively dependent on healthcare providers because he consistently attended treatment for more than two years. Thus, the applicant has established that he meets criterion 2 of the AMA Guidelines.
Criterion 3. Secondary physical deconditioning due to disuse and/or fear–avoidance of physical activity due to pain.
29The applicant submits that he meets criteria 3 of the AMA Guides because he has not been able to perform housekeeping tasks and resume full tasks at work.
30The applicant submits that he has become dependant on his spouse to help him with his pre-accident housekeeping activities. The applicant reported to the s.44 assessor, Dr. Debra, Mandel, psychologist that his share of helping his spouse with the cooking, cleaning and laundry or any household duties is reduced to 20%. He used to shovel, take out the garbage, cut the grass and garden and help with outdoor maintenance. He is no longer able to assist his spouse with those chores as he did before the accident. Also, the applicant states that he is unable to help with childcare of their children as he finds it hard to bend due to the pain.
31The applicant points to Dr. Mandel’s report. However, Dr. Mandel found no evidence of physical deconditioning at her s. 44 examination. The applicant’s self reporting is undermined by the lack of corroborating evidence that supports his claim that he meets criteria 3.
32As a result, I find that the applicant has not established that he has experienced secondary deconditioning as a result of the accident because he has not provided any detail or directed me to any evidence in support of this claim.
Criterion 5: 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.
33The applicant submits that he reported to section 44 assessor, Dr. Mandel his pre-accident employment and post accident employment situation. Dr. Mandel’s report dated July 27, 2022, reveals that the applicant reported that he returned to his employment one and a half months after the accident but did not return to full time duties. The applicant reported that he was self employed and on average worked 60-70 hours weekly. As a result of the accident, he took 1.5 months of from work. Upon returning to work, he performed a supervisory role and worked modified hours of 10--20 hours per week.
34I find that the applicant’s claims are undermined because he indicated in the OCF-1, part 8, dated October 6, 2021, that his injuries did not prevent him from working. Further, the clinical notes and records by Good Health Rehab reveal that the applicant reported he had returned to full-time work after the accident.
35Accordingly, I find that the applicant has not established that he meets criterion 5 because he was able to successfully engage in pre-injury functions following the accident. Thus, I find that the applicant has not demonstrated that he meets criterion 5 of the AMA Guides.
36Upon review of the applicant’s submissions, I am not persuaded that the applicant meets at least three criteria in the AMA Guides to establish he has chronic pain. I find that the applicant does not meet the criteria for chronic pain under the AMA Guides.
Functional impairment
37The applicant has not directed me to evidence in support of his claim that he has functional limitations. The onus is on the applicant do so, and they have not pointed me to evidence that I can consider.
38I note that s.44 IE, Dr. Mandel opined in her report of July 13, 2022, that the applicant injuries remain in the MIG. She indicated that the applicant throughout the testing process, was observed to transfer, to and from, the sitting to standing to supine positions without functional difficulty. She also reported that the applicant stated that he did not need physiotherapy.
39Based upon the foregoing, I conclude that the applicant has not sustained a chronic pain condition as a result of the accident. As such, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.
40The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury. The MIG limits have not been exhausted. At the time of the case conference, both parties agreed that $3,199.20 of the MIG limit has been allocated.
41As the applicant is in the MIG, it is not necessary for me to consider if the treatment plans for physiotherapy services are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.
Interest
42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been found to be owing, interest is not applicable
ORDER
43I find that the applicant has not met his burden in establishing that his accident-related injuries warrant removal from the MIG.
44As the applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
45The applicant is not entitled to interest.
46The application is dismissed
Released: March 24, 2026
Estella Muyinda
Adjudicator