Citation and Parties
Licence Appeal Tribunal File Number: 24-011542/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:
Kwame A Boakye
Applicant
and
SGI Canada Insurance Services Ltd.
Respondent
DECISION
VICE-CHAIR:
Henry Harris
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Jonathan Heeney, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kwame Boakye (the “applicant”) was involved in an automobile accident on July 20, 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 SGI Canada Insurance Services Ltd. (the “respondent”) 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 a non-earner benefit (“NEB”) of $185.00 per week from August 17, 2023 to July 17, 2025?
iii. Is the applicant entitled to $1,356.35 for chiropractic services, proposed by Toronto Medical Centre in a treatment plan/OCF-18 (“plan”) submitted October 31, 2023 and denied November 7, 2023?
iv. Is the applicant entitled to $1,748.05 for a biopsychosocial assessment, proposed by Toronto Medical Centre in a plan submitted August 15, 2023 and denied August 30, 2023?
v. Is the applicant entitled to $1,995.32 for a psychological assessment, proposed by Toronto Medical Centre in a plan submitted October 31, 2023 and denied November 7, 2023?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3For issue (ii) above regarding NEB, the case conference report and order dated January 13, 2025 indicates the period in dispute as August 20, 2023 to date and ongoing. However, I find the correct period under s. 12(3) of the Schedule to be as set out above, representing the period commencing four weeks post-accident and ending 104 weeks post-accident.
RESULT
4The applicant remains subject to the MIG.
5As the applicant remains in the MIG, there is no need to consider if any of the plans in dispute are reasonable and necessary.
6The applicant is not entitled to an NEB, interest or an award.
7The application is dismissed.
ANALYSIS
The applicant remains within the Minor Injury Guideline (MIG)
8I find that the applicant has not established on a balance of probabilities that he suffers from an accident-related injury or condition that warrants removal from the MIG.
9Section 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.”
10An 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.
11In all cases, the burden of proof lies with the applicant.
12The applicant submits that he should be removed from the MIG due to chronic pain and psychological injuries.
Chronic pain
13I find that the applicant has not established the presence of a chronic pain condition that warrants removal from the MIG.
14The applicant submits that he should be removed from the MIG due to chronic neck and back pain. He relies on the clinical notes and records (“CNRs”) of Dr. P. J. Bakht, the applicant’s family physician. He states that on January 26, 2024, Dr. Bakht provided a referral for physiotherapy and chiropractic treatment, noting the applicant’s diagnosis as chronic neck and back pain.
15The respondent counters that the applicant has not met his onus of demonstrating that he has chronic pain with functional impairment that would warrant removal from the MIG. It relies on the limited pattern of post‑accident care and the insurer’s examination (“IE”) report of Dr. C. Boulias, physiatrist, dated January 17, 2024.
16I find that the evidence presented does not support a finding that the applicant has chronic pain with functional impairment as a result of the accident. The single record that the applicant relies on from Dr. Bakht’s CNRs, approximately six months post-accident, is insufficient to establish that the applicant has accident-related chronic pain. The only context to the reference to chronic neck and back pain is Dr. Bakht’s notation that the applicant is “asking for another letter for physical therapy and chiropractic treatment.” I find this isolated record, which appears to be the applicant’s self-reporting of pain, to be insufficient evidence to establish chronic pain warranting removal from the MIG. The applicant does not direct me to any other accident-related pain complaints.
17The respondent directs me to an April 1, 2024 entry where Dr. Bakht is questioning the legitimacy of pain complaints. Dr. Bakht raises concerns that “someone is guiding these patients” to seek referral letters for pain management and anxiety/depression due to the accident. He notes that he has no records from the accident and comments that the applicant did not sustain any serious injuries. He further notes “exam quite unremarkable.” I was not directed to any follow up with Dr. Bakht after the April 1, 2024 visit. These comments provide the context for giving little weight to the applicant’s complaints to Dr. Bakht in April 2024.
18Further, after the January 26, 2024 referrals, I was not directed to any records of the applicant reporting pain symptoms or attending treatment for accident-related pain. Moreover, the applicant has not provided any submissions or led evidence as to any functional restrictions due to accident-related pain.
19I assign significant weight to the IE physiatry report of Dr. Boulias as it provides the most detailed and comprehensive clinical assessment in the record. Dr. Boulias conducted an examination of the applicant and found that he sustained uncomplicated soft tissue injuries to his axial skeleton as a result of the accident. He did not find any functional limitations or any physical restrictions. Dr. Boulias opined that the injuries are minor in nature and would not require treatment beyond the MIG, and that the applicant’s prognosis was good. I accept these conclusions, given the limited treatment history and the absence of evidence demonstrating functional deterioration.
20While I accept that the applicant has reported that he has experienced pain, complaints of pain are not sufficient to establish impairments. Accident-related chronic pain must be accompanied by ongoing functional impairment, evidenced through the impact of chronic pain on the applicant’s daily life and/or work.
21For these reasons, I find that the applicant has not proven on a balance of probabilities that he has accident-related chronic pain with a functional impairment that warrants removal from the MIG.
Psychological condition
22I find that the applicant has not established that he has a psychological condition due to the accident that warrants removal from the MIG.
23The applicant submits that he sustained psychological impairments as a result of the accident and, as such, should be removed from the MIG. He relies on the CNRS of Dr. Bakht, and states that Dr. Bakht noted on January 17, 2024, symptoms of anxiety and post-traumatic stress leading to a referral for psychological treatment.
24The respondent counters that the applicant has not met his onus of demonstrating that he has any psychological impairments as a direct result of the accident. It relies on the lack of post‑accident records of psychological symptoms and the IE report of Dr. Tatiana Dumitrascu, psychologist, dated January 17, 2024.
25I do not agree with the applicant’s assertion that he has been diagnosed with anxiety and post-traumatic stress disorder (“PTSD”). There is no evidence before the Tribunal that any physician or psychologist formally diagnosed the applicant with a psychological condition that would fall outside the MIG, and there is just a single report to the family physician of anxiety six months post-accident. Dr. Bakht’s CNRs of January 17, 2024 notes the applicant’s complaint of anxiety and PTSD post-accident and makes a referral for psychology/psychotherapy. I find this to be an isolated self-report by the applicant and while there was a referral for treatment, there is no evidence of the applicant attending treatment or following up on the psychological referral.
26As noted above, in the April 1, 2024 CNRs, Dr. Bakht raises concerns that that someone is guiding the applicant to seek referral letters, including for anxiety/depression due to the accident. There was no evidence of follow up with Dr. Bakht after the April 1, 2024 visit. As such, I find this limits the reliability of applicant’s reporting of a psychological condition.
27The IE psychology report of Dr. Dumitrascu found that the applicant does not meet the DSM-5 criteria for a psychological disorder as a result of the accident, and that no accident related psychological impairments were identified. Dr. Dumitrascu opined that no psychological treatment is required beyond the MIG. The applicant did not produce any contemporaneous medical evidence or competing report to challenge these findings. I accept these conclusions, given the absence of medical evidence of psychological conditions.
28For these reasons, I find that the applicant has not proven on a balance of probabilities that he has a psychological condition due to the accident that warrants removal from the MIG. Therefore, I find that the applicant remains subject to the MIG.
29As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.
The applicant is not entitled to an NEB
30I find the applicant has not established entitlement to an NEB in the amount of $185.00 per week from August 17, 2023 to July 17, 2025.
31Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Co., 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre- and post-accident activities.
32The applicant submits that he meets the test for NEB as he is unable to engage in substantially all of the activities he normally performed before the accident, including personal care, social functioning and household maintenance.
33The respondent counters that the applicant has not met his onus to prove that he is entitled to an NEB, as he has failed to produce sufficient evidence to support that he suffers from a complete inability to carry on a normal life as a result of the accident.
34The applicant’s submissions make general statements that he suffers both physical and psychological impairments that have significantly impacted his ability to engage in substantially all of his pre-accident activities. He indicates the combination of persistent pain and psychological symptoms has affected his concentration, mobility and independence. However, the applicant has not directed me to any evidence in support of these claims.
35Further, the applicant has not directed me to evidence of his pre-accident function, or activities he values but cannot perform due to his accident-related injuries. No evidence was led to establish the applicant’s normal activities before and subsequent to the subject accident, and how any difference in those activities means that he is continuously prevented from engaging in substantially all such activities.
36The applicant was unemployed at the time of the accident. He submits that, but for the accident, he would have resumed work or vocational activity, but instead he remains unable to engage in substantially all of the activities he normally performed before the accident. He has not provided any evidence to substantiate such claim.
37On the evidence before me, I am unable to engage in the analysis required by Heath to determine if the applicant suffers from a complete inability to carry on a normal life. The applicant has not pointed me to details of his pre-accident activities or demonstrated how his participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to the applicant, how he was prevented from engaging in the activities he normally engaged in pre-accident or evidence of the frequency and time commitments of his pre-accident activities. In the absence of this information, it is not possible to compare the applicant’s pre- and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.
38Further, the respondent points to the IE reports, which address NEB. Dr. Dumitrascu found that as no physiological conditions from the accident were identified, the applicant has no restrictions engaging in his daily life activities and that he does not suffer a complete inability to carry on a normal life as a result of the accident. Dr. Boulias noted that the applicant reported that he resumed a majority of his daily activities and that there is no medical reason he cannot resume all of his normal daily activities.
39For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from a complete inability to carry on a normal life as a result of his accident-related injuries. Accordingly, the applicant is not entitled to an NEB in the amount of $185.00 per week from August 17, 2023 to July 17, 2025.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
41The 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.
42As the respondent did not unreasonably withhold or delay payment of benefits, no award is payable.
ORDER
43For the reasons outlined above, I find that:
i. The applicant shall remain in the MIG;
ii. As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary;
iii. The applicant is not entitled to the claimed NEB, interest or an award; and
iv. The application is dismissed.
Released: April 2, 2026
Henry Harris
Vice-Chair