Licence Appeal Tribunal File Number: 24-011010/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:
Roberto Montemayor
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
Devon McIntyre, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Roberto Montemayor, the applicant, was involved in an automobile accident on September 6, 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, 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 $1,104.50 for physiotherapy services proposed by Promed Rehabilitation Clinic (“Promed”) in a treatment plan/OCF-18 (“plan”) submitted on August 9, 2022?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. 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 respondent is not liable to pay an award.
6The applicant is not entitled to interest.
7The application is dismissed.
ANALYSIS
Applicability of the MIG
8Section 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.”
9An 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. Further, jurisprudence has established that concussions are not part of the definition of minor injury. In all cases, the burden of proof lies with the applicant.
10The applicant submits that he has sustained chronic pain with functional impairment and a psychological impairment because of the accident.
The applicant does not have chronic pain with functional impairment as a result of the accident
11The applicant has not met his onus to prove on a balance of probabilities that he has chronic pain with functional impairment as a result of the accident.
12The applicant relies on the following medical evidence in support of his accident-related injuries.
13The applicant relies on the OCF-3 dated October 5, 2021 completed by Dr. Oleksandr Pivtoran, chiropractor, indicating that the applicant suffered from cervical sprain/strain, lumbar spine strain/sprain, post-traumatic headache, shoulder sprain/strain of joints and ligaments (bilateral), thoracic sprain/strain of joints and ligaments, post concussion syndrome, dizziness, and behaviour: symptoms and signs involving emotional state.
14The applicant refers to clinical notes and records (“CNRs”) from Downsview Healthcare Inc., demonstrating that he attended physiotherapy sessions between October and December 2021. He submits that these records establish that he sustained accident-related chronic pain with functional impairment. I find that the CNRs are handwritten and largely illegible. Further, I note that the applicant attended for seven sessions in October and four sessions in December. The applicant does not direct me to evidence with respect to how these records establish that he had functional impairment.
15The applicant also submits that the following CNRs from Dr. Sasan Iraji, physician, establish that he sustained accident-related chronic pain with functional impairment:
i. September 6, 2022: reported right shoulder pain for a few months.
ii. September 19, 2022: reported being involved in a car accident on September 6, 2021, and “feeling nervous about the accident,” sometimes getting flashbacks. The applicant was assessed with “anxiety/PTSD.”
iii. October 3, 2022: radiographs and ultrasound of the right shoulder revealed mild osteoarthritis in the right AC joint and mild rotator cuff tendinosis.
iv. October 3, 2022: Echo Dopplar Report indicated normal left ventricular size and wall thickness and normal left ventricular systolic and diastolic function.
v. November 22, 2022: cardiology consultation where the applicant was diagnosed with hypertension.
16The applicant also refers to the CNRs from Promed demonstrating that he attended for physiotherapy sessions between September 2021 and August 2022. He submits that these records establish that he sustained accident-related chronic pain with functional impairment. I note that these records indicate that the applicant attended for an assessment on September 28, 2021. He also attended another assessment on August 9, 2022, as well as five physiotherapy sessions that month, complaining of right shoulder and back pain. The applicant does not direct me to evidence in these records establishing that he had a functional impairment.
17The respondent points out that while the applicant attended some clinic-based treatment in the months after the accident, he did not seek medical attention from any doctor, walk-in clinic, hospital, or any other objective OHIP funded treatment provider until September 6, 2022, a full year after the accident.
18In reply, the applicant submits that the accident took place during the COVID pandemic, and he was subject to restrictions, however he did meet with Dr. Iraji on September 6, 2022, after the pandemic had ended.
19I find that, to be removed from the MIG, the applicant must demonstrate functional impairment due to accident-related chronic pain. He has not directed me to such evidence.
20For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that he has chronic pain with functional impairment as a result of the accident.
The applicant does not have a psychological condition due to the accident
21The applicant has not met his onus to prove on a balance of probabilities that he has a psychological condition because of the accident.
22In support of his position, the applicant refers to the pre-screen interview by Karla Martinez that was conducted on January 11, 2022, where the applicant reported sleep difficulties, irritability, frustration, sadness and depression, and anxiety.
23I place no weight on this interview report for the following reasons:
i. The report consists of a checklist type questionnaire with the applicant’s responses;
ii. It does not contain any conclusions or diagnoses; and
iii. There is no indication with respect to Karla Martinez’ qualifications.
24Further, I am not satisfied on a balance of probabilities by Dr. Iraji’s diagnosis of “anxiety/PTSD” based on the applicant’s reporting over one year after the accident, on only one occasion, of feeling nervous about the accident and sometimes getting flashbacks.
25For these reasons, I find that the applicant has not met his onus to demonstrate on a balance of probabilities that he has a psychological condition as a result of the accident.
The applicant does not have a concussion as a result of the accident
26The applicant does not make submissions that he should be removed from the MIG because of an accident-related concussion. I will deal with this issue, however, since “post concussion syndrome” is listed as an injury on the OCF-3.
27I place no weight on the diagnosis of post concussion syndrome listed on the OCF-3 that was prepared by Dr. Pivtoran. I find that under ss. 3 and 4 of the Chiropractic Act, it is not within a chiropractor’s scope of practice to diagnose concussions. Section 3 indicates that the practice of chiropractic is the assessment of conditions related to the spine, nervous system and joints and the diagnosis, prevention and treatment of dysfunctions or disorders relating to the spine, the effects of those dysfunctions or disorders on the nervous system, and dysfunctions or disorders arising from the structures or functions of the joints. Section 4 sets out that a chiropractor is authorized to diagnose a disorder arising from the structures or functions of the spine and their effects on the nervous system, or a disorder arising from the structures or functions of the joints of the extremities.
28The applicant does not direct me to any other evidence that he suffered from an accident-related concussion or post concussion syndrome.
29For these reasons, I find that the applicant does not have a concussion or post concussion syndrome as a result of the accident.
30For 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.
31As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plan in dispute.
Interest
32Interest 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.
Award
33The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
34For 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 respondent is not liable to pay an award
iv. The applicant is not entitled to interest.
v. The application is dismissed.
Released: April 9, 2026
Laura Goulet
Adjudicator