Licence Appeal Tribunal File Number: 24-007450/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:
Mark Patterson
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Swetlana Vinokur, Paralegal
For the Respondent:
Thomas Petrella, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Mark Patterson, the applicant, was involved in an automobile accident on November 11, 2022, 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, Belair Insurance Company Inc., 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 the assessments proposed by Elite Assessment Centre, as follows:
a. $2,200.00 for a Psychological Assessment, in an OCF-18/treatment plan (“plan”) dated August 10, 2023; and
b. $2,200.00 for a Chronic Pain Assessment, in a treatment plan dated May 15, 2024?
iii. Is the applicant entitled to $1,306.18 for Chiropractic and Massage treatment, proposed by West Medical in a treatment plan dated June 28, 2023?
iv. Is the applicant entitled to $5,786.84 for Psychological treatment, proposed by Elite Assessment Centre in a plan dated November 3, 2023?
v. Is the applicant entitled to $3,193.76 for Psychotherapy treatment, proposed by Elite Assessment Centre in a plan dated June 21, 2024?
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?
3The plan described as the third issue in dispute noted above, originally stated to be proposing psychotherapy treatment, proposes chiropractic and massage services and this has been reflected in the issues above.
RESULT
4The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore not subject to treatment within the $3,500.00 MIG limit.
5The applicant is entitled to the plan for $2,200.00 for a psychological assessment and $2,200.00 for a chronic pain assessment.
6The applicant is entitled to the plan for $1,306.18 for chiropractic and massage services.
7The applicant is partially entitled to the plan proposing psychological treatment in the amount of $5,286.84.
8The applicant is not entitled to the plan for $3,193.76 for further psychotherapy treatment.
9The respondent is not liable to pay an award under s. 10 of Reg. 664.
10The applicant is entitled to interest.
PROCEDURAL ISSUES
11I deny the respondent’s request to strike the applicant’s submissions.
12The respondent requests that the non-compliant sections of the applicant’s submissions be struck in their entirety, specifically pages 1-5 and 11. The respondent argues that these sections are not double spaced and limited to 10 pages as required by the Case Conference Report and Order for both parties. Further, the respondent argues that the applicant’s non-compliance should be considered when deciding the issue of an award. The respondent did not argue any nexus between non-compliant formatting of submissions and the test for an award. For this reason, I am not persuaded this is a factor to be considered for an award.
13The respondent argues that the non-compliance provides the applicant with lengthier filed submissions and therefore undermines the fairness of the hearing. However, the respondent has not argued any specific prejudice beyond this general argument. The respondent has provided its submissions and there is no indication that it did not get a chance to respond fully and fairly to the applicant’s non-compliant submissions. Although the respondent argues the non-compliance is not trivial, the applicant would be prejudiced if I strike these submissions and the respondent has not demonstrated prejudice.
14For the reasons above, I deny the respondent’s request to strike the applicant’s submissions.
ANALYSIS
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 MIG limit?
15I find that the applicant’s injuries are not predominantly minor and he is therefore not subject to the MIG limit.
16Section 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.”
17An 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.
Chronic pain with a functional impairment
18I find that the applicant has chronic pain with a functional impairment warranting removal from the MIG.
19The applicant submits that his injuries fall outside of the MIG because he has chronic pain. A section 25 chronic pain assessment by Dr. Wilderman resulted in a diagnosis of chronic pain syndrome, among other diagnoses.
20The respondent argues that at most, the applicant suffered from minor soft tissue injuries and headaches for a short period due to the accident.
21However, the applicant has consistently reported pain complaints to both section 25 and 44 assessors. While the respondent argues that the applicant’s claim for chronic pain must be assessed against the six criteria in The American Medical Association’s, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, (“AMA Guides”), the respondent has not referred me to any opinion evidence engaging in this analysis. Further, the respondent’s submissions only list the AMA Guides criteria and do not address the criteria.
22While the AMA Guides criteria for chronic pain are not incorporated into the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes in the absence of a diagnosis of chronic pain. I agree that they are a useful analytical tool in that context. However, there is a diagnosis in this case. In fact, Dr. Wilderman’s report considers the AMA Guides criteria. While the onus is on the applicant, the respondent has not led medical evidence indicating the applicant does not have chronic pain. Further, the respondent’s reliance on caselaw where the Tribunal found no evidence of a diagnosis of chronic pain is not persuasive because there is a diagnosis in this case. I find that the applicant has established he has been diagnosed with accident-related chronic pain. I will now turn to the question of whether the applicant has a functional impairment related to his chronic pain.
23I find that the applicant has established he has chronic pain with a functional impairment. The applicant has reported to assessors that he is functionally impaired as a result of the accident. Dr. Wilderman notes that the applicant is impaired in his housekeeping and home maintenance duties and that his girlfriend now helps him complete these tasks. Further, prior to the accident, he was self-employed as a contractor doing home renovations. While he has done odd jobs post-accident on a limited basis, he has not been able to return to his pre-accident functional ability. The applicant reported to Dr. Sohail Sunner that he had improved 30% after receiving approved treatment but that his work, prior to January 2024, was on modified duties and modified hours. Subsequently, since approximately January 2024, he has not worked at all. The respondent’s submissions acknowledge that the applicant is using a number of substances that affect his cognitive abilities. According to section 44 psychological assessor Dr. Charles H. Pierce, as of August 2024, “[the applicant] has limited resources and is attempting to manage the pain on his own through the use of various substances.” I find that the applicant has not remained independent in his activities of daily living post accident and subsequently his functional impairment has taken him out of the workforce.
24For the reasons above, I find that the applicant has chronic pain with a functional impairment which warrants removal from the MIG. Since the applicant has established removal from the MIG is warranted on the basis of chronic pain with a functional impairment, it is not necessary that I assess all of the applicant’s other arguments on removal from the MIG.
Is the applicant entitled to $2,200.00 for a Chronic Pain Assessment.
25I find that the applicant is entitled to the plan for a chronic pain assessment.
26To 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.
27The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
28The applicant argues the assessment is reasonable and necessary because of the multifaceted nature of his injuries and their duration.
29Many of the same reasons underpinning the MIG finding above are applicable to this treatment plan. Further, I have considered that the applicant fell from a roof in 2014 and was in rehabilitation for 48 days, at a cost of $75,600.00, due to injuries to the head, neck, upper back, lower back, and upper and lower left arm. While the contemporaneous medical record from St. John’s Rehab Hospital describes his injuries as soft tissue injuries, it is also stated that it is unclear what his injuries were due to the nature of his symptoms. However, there was agreement that he could be suffering from somatoform. The applicant suffered from gross tremors and spasms of his arms, legs, and neck with very slow and limited movement in all joints and spine, and weakness in upper and lower extremities. At the time, the applicant could only manage a few steps and then would collapse. He would get up with a 2-wheeled walker and shake visibly. On discharge, the applicant was independent in self-care, but pain continued to limit him, he continued to use a hospital bed at home and a 2-wheeled walker for short distances.
30After the subject accident, Dr. Sunner confirmed the applicant injured his cervical spine and left shoulder as a result of the accident. Both of these areas were previously injured in 2014. Further, Dr. Sunner acknowledged the applicant’s history of back pain. Considering this together with the applicant’s ongoing exacerbated pain complaints to both section 25 and 44 assessors well beyond the anticipated duration for recovery, and the applicant’s deterioration to the point of a complete work stoppage, it is reasonable and necessary to investigate the applicant’s pain complaints via a chronic pain assessment.
31The respondent submits that the fees corresponding to the psychological and chronic pain assessments proposed are not reasonable. Section 25(5)(a) Schedule provides that the insurer shall not pay more than $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and the preparation of the related report. The respondent relies on Wu v. Aviva General Insurance, 2022 CanLII 92741 ONLAT, wherein the Tribunal at paras. 11 and 12 held that $2,000.00 total limit for each assessment is inclusive of file reviews, preparation, and reports. A review of the OCF-18 establishes that the tasks associated with the assessment are within the $2,000.00 limit, and that a $200.00 fee is sought for form completion for the OCF-18. I find this is in line with the Schedule and the Professional Services Guideline (“Guideline”).
32I find, on a balance of probabilities, that the applicant is entitled to this plan proposing a chronic pain assessment.
Is the applicant entitled to $2,200.00 for a Psychological Assessment?
33I find that the applicant is entitled to the plan for a psychological assessment.
34The applicant argues the assessment is reasonable and necessary because the respondent’s section 44 psychological assessment was inconclusive and the applicant has a right for an alternative medical opinion. Further, they argue they are entitled to the plan because the medical record supports the applicant’s psychological condition required investigation.
35I find that Dr. Wilderman’s chronic pain assessment included a consideration of a psychological aspect to the applicant’s condition. Further, the applicant’s medical history establishes that in 2014, according to St. John’s Rehab Hospital, they agreed that the applicant could be suffering from somatoform as an explanation for his symptoms. I am further persuaded by the applicant’s developed substance abuse, which section 44 psychological assessor Dr. Charles Pierce described as a method of coping for the applicant. Flowing from this, Dr. Galit Kleiner, section 44 neurological assessor, opined the applicant is experiencing headaches that are complicated by medication overuse and excessive marijuana and alcohol use. The applicant’s pre-accident history shows no substance abuse history.
36A section 25 psychological assessment by Dr. Lindal resulted in the following diagnoses: adjustment disorder, driving and passenger phobia, somatic symptom disorder, and features of a substance abuse disorder (Alcohol/Cannabis related). The report is solely based on the applicant’s self-reporting. However, the applicant’s complaints are consistent with the complaints made to other assessors as reviewed in this decision.
37The respondent argues that I should give less weight to Dr. Lindal’s report for a number of reasons. The respondent refers me to Dr. Ricardo Harris’ section 44 assessment and paper review citing research backed evidence that Dr. Lindal’s tests were not reliable, with one test being just as reliable as flipping a coin. In contrast, the respondent argues, that Dr. Harris included robust malingering tests which indicated the applicant was in the range of “definitely feigning” in two out of the eight scales administered. Dr. Harris opines that, “In one malingering test his endorsement of psychiatric and cognitive symptoms appeared to be either false or exaggerated, and in the second one his profile was strongly characteristic of a client feigning a mental disorder.” Ultimately, the respondent argues that there is no evidence outside the OCF-18s and the treatment providers themselves which support further facility-based treatment.
38Dr. Harris opined that the applicant cannot be diagnosed because of unreliable evidence of any accident-related psychological condition. He states that a diagnosis of malingering cannot be given based on test results alone, but they have raised a suspicion of malingering. I am not persuaded that the applicant’s scores on the rest of the battery of tests should be discarded completely because of a raised suspicion of malingering. According to Dr. Harris, the applicant met the diagnostic criteria for post traumatic stress disorder and scored in the severe range for both depression and anxiety. I am persuaded by the applicant that there is not a good explanation for providing no diagnosis at all by Dr. Harris under the circumstances, whether that be for malingering or otherwise.
39I have taken into account the applicant’s pre-accident and post-accident condition, the opinions of assessors suggesting substance abuse as a coping strategy, and Dr. Wilderman’s opinion that there is a psychological aspect to the applicant’s accident-related chronic pain condition. Accordingly, there are grounds on which to believe that the applicant has a psychological condition as a result of the accident that would warrant further investigation by way of an assessment.
40I find, on a balance of probabilities, that the applicant is entitled to the plan for a psychological assessment.
Is the applicant entitled to $1,306.18 for chiropractic and massage services?
41I find, on a balance of probabilities, that the applicant is entitled to the disputed plan because it is reasonable and necessary.
42This OCF-18 for psychotherapy treatment proposes facility-based chiropractic treatment, massage therapy, and documentation support activity, for a duration of 8 weeks. The goals are pain reduction, increase strength and range of motion, and restoring independence, endurance and mobility and returning to activities of daily living. The parties dispute whether the plan is reasonable and necessary.
43Dr. Sohail Sunner’s general practitioner section 44 report dated September 20, 2023, deferred giving an opinion due to the recommendation that further assessment of the left shoulder with an ultrasound is required to rule out internal derangement. Subsequently, in an addendum report dated February 26, 2024, Dr. Sunner opined the plan was not reasonable and necessary in response to the specific referral question from the respondent. The referral question also requires a clinical rationale for any opinion and Dr. Sunner states that the applicant’s injuries fall within the MIG. However, Dr. Sunner acknowledges the following injuries as a direct result of the subject accident, cervical sprain/strain, left shoulder strain/sprain, impingement, and headaches to be deferred to a neurologist. Dr. Sunner also acknowledged limitation in the applicant’s range of motion and a history of lumbar back pain and that pain may persist even after structural healing of any injuries has completed. Since I have found the applicant has developed chronic pain with a functional impairment and is not subject to the MIG, it follows that there is no clinical rationale to deny the plan any longer.
44Further, Dr. Wilderman specifically recommended chiropractic treatment along with a host of other modalities that would benefit the applicant. Considering the preponderance of the evidence, the applicant has established the disputed plan is reasonable and necessary. While Dr. Sunner noted that most uncomplicated soft tissue injuries heal within 3-6 months with a dedicated course of physiotherapy, the applicant argues he has not even received benefits up to the MIG limit, delaying his recovery. I have addressed this aspect of the applicant’s submissions earlier in this decision. I find that it is reasonable and necessary for this plan proposing facility-based treatment to accomplish the goals of pain reduction, increase strength and range of motion which aim to restore the applicant’s independence, endurance, and mobility and allow him to return to his activities of normal living.
45I find, on a balance of probabilities, that the applicant is entitled to the disputed plan because it is reasonable and necessary.
Is the applicant entitled to $5,786.84 for Psychological treatment?
46I find that the applicant is partially entitled to the plan in dispute, in the amount of $5,286.84.
47The applicant seeks entitlement to this plan because it is reasonable and necessary.
48The plan proposed 20 sessions of therapy and 4 progress evaluations. The 20 sessions of treatment include 12 sessions of cognitive behavioral therapy, and 8 sessions of traffic reintegration therapy. Therapy will be provided by Svitlana Chechel, registered psychotherapist. The plan indicates that the goals are to decrease psychological impairment, symptom management, increased affect regulation and coping skills, cognitive restructuring, increased capacity for self soothing and self regulation, concrete behavioural change, and pain management and sleep enhancement techniques.
49The applicant argues that the s.25 assessment of Dr. Lindal, Ph.D, C. Psyc, the psychological progress report by Erin D. Langis, M.A., C. Psych. and Natalia Vyzhol, registered psychotherapist (Qualified), together with clinical notes and records, and the s. 25 assessment report by Dr. Wilderman, support the need for psychological treatment.
50As previously reviewed, the applicant is coping with his accident-related injuries and impairments through substance abuse, and this substance abuse is affecting the applicant by complicating his headache symptoms. As the applicant argues, it is therefore reasonable and necessary that the applicant have the opportunity to obtain treatment and therapy to address his accident-related injuries and impairments. As noted earlier, the applicant has no substance abuse history prior to the accident but substance abuse is recorded post-accident. Further, the applicant’s withdrawal from his activities of daily living, social and recreational life and deterioration related to work until he stopped working around January 2024, establish that the goals of treatment are reasonable and necessary.
51The plan proposes evaluating the applicant’s progress through his response to treatment, clinical observation and monitoring, self-report, and a comprehensive re-assessment including psychometric testing to monitor progress throughout therapy and upon completion of the treatment plan in accordance with Ontario Psychological Association's criteria for evidence-based practice.
52The plan includes an hour for documentation support activity at a rate of $500.00 per hour. The plan also proposes this task for OCF-18 completion for a total of $200.00.
53While the latter is in line with the maximum amount set by the Guideline, $500.00 for one hour of this activity is beyond the limits set by the Guideline. I find that the respondent is not liable for $500.00 for one hour of documentation support activity proposed in this plan.
54For the reasons above, on a balance of probabilities, I find that the applicant is partially entitled to the plan in dispute, in the amount of $5,286.84.
Is the applicant entitled to $3,193.76 for Psychotherapy treatment?
55I find that the applicant is not entitled to the plan in dispute, in the amount of $3,193.76.
56This plan proposes 12 sessions of treatment with a registered psychotherapist and 4 progress evaluations. The applicant’s submissions address this disputed plan together with the prior plan proposing 20 sessions with a psychotherapist.
57Since there are no specific submissions addressing this plan, in light of the plan being duplicative because it proposes 12 further sessions with a psychotherapist, the applicant has not met his onus to establish these further sessions are reasonable and necessary prior to incurring the 20 sessions and having completed the 4 progress evaluations he is entitled to on the previous plan.
58For the reasons above, on a balance of probabilities, I find that the applicant is not entitled to the plan in dispute in the amount of $3,193.76.
Interest
59The applicant is entitled to interest, which applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
60I find that the respondent is not liable to pay an award.
61The 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.
62In determining the type of conduct for which an award is appropriate, the adopted standard is set out in the Financial Services Commission of Ontario case: Wayne Allan Plowright v. Wellington Insurance Company, 1993 ONICDRG 66 (“Plowright”). According to Plowright, unreasonable conduct can include “excessive, imprudent, stubborn, inflexible, unyielding or immoderate” behaviour.
63The applicant makes a number of arguments, including that the respondent failed to assess the applicant properly due to a pre-existing diagnosis of somatoform disorder. However, I note that the applicant did not establish he was ever diagnosed with the disorder. The applicant is also critical of the section 44 psychological assessment resulting in no diagnosis at all, describing it as being inconclusive. Further, that it is highly problematic that the section 44 assessors did not coordinate to attempt to reach a consensus and instead stayed within the narrow scope of their discipline, because the applicant has a mixture of physical and psychological issues.
64The respondent argues that it adjusted the file based on the information it had and relied on the opinions of its assessors. Accordingly, the respondent submits that it has not engaged in conduct that would attract an award.
65I find that the applicant’s arguments do not establish the type of behaviour that the Tribunal has held would attract an award. The Tribunal has held, and I find in this case, that the respondent is entitled to rely on opinions of its expert assessors. Further, my findings contrary to the respondent’s position or the weight I assign to the opinions of its assessors does not establish that the respondent is liable to pay an award.
66In addition, the applicant makes general arguments relating to the amount available under the MIG limit. The Case Conference Report and Order required the parties to identify the amount of the MIG limit that had not been exhausted. The applicant argues that the respondent has denied the applicant’s proposed benefits beyond $2,318.81, which leaves $1,181.19 within the MIG limit. However, the applicant has not provided evidence it sought further treatment within the remaining MIG limit that has been withheld or delayed. The respondent has not addressed this in its submissions. I note that these amounts are fluid and may have changed since submissions were made. To the extent that the applicant has an amount available under the MIG, it is not necessary to engage in a reasonable and necessary analysis. Beyond the MIG limit, my decision addresses the rest of the issues in dispute.
67For the reasons above, on a balance of probabilities, I find that the respondent is not liable to pay an award.
ORDER
68For the reasons above, I make the following orders:
i. The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore not subject to treatment within the $3,500.00 MIG limit.
ii. The applicant is entitled to $2,200.00 for a psychological assessment and $2,200.00 for a chronic pain assessment.
iii. The applicant is entitled to $1,306.18 for chiropractic and massage services.
iv. The applicant is partially entitled to the plan proposing psychological treatment in the amount of $5,286.84.
v. The applicant is not entitled to the plan for $3,193.76 for further psychotherapy treatment.
vi. The respondent is not liable to pay an award under s. 10 of Reg. 664.
vii. The applicant is entitled to interest.
Released: April 8, 2026
Amar Mohammed
Adjudicator
