Citation: Alexander v. Unifund Assurance Company, 2026 ONLAT 24-011584/AABS

Licence Appeal Tribunal File Number: 24-011584/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:

Lekeisha Alexander

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Joshua Gautreau, Counsel

For the Respondent:

Mikhail Shloznikov, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Lekeisha Alexander, the applicant, was involved in an automobile accident on December 2, 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, Unifund Assurance 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:

1. 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”)?

2. Is the applicant entitled to the medical services proposed by Ajax Rehabilitation Centre, as follows:

i. $1,273.50 for physiotherapy, in a treatment plan dated December 6, 2022; and

ii. $2,303.05 for physiotherapy, in a treatment plan dated October 11, 2022?

3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s accident-related impairments are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG.

4Since the applicant remains in the MIG, it is not necessary to consider the reasonableness and necessity of the treatment plans. The applicant is not entitled to interest.

ANALYSIS

Minor Injury Guideline

5Section 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. 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.”

6An 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 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. The applicant submits that she should be removed from the MIG on the grounds of psychological impairment, a pre-existing condition and chronic pain.

The applicant has not established an accident-related psychological condition or pre-existing condition to warrant removal from the MIG

7With respect to psychological impairments, the applicant submits that as a result of the accident she suffers from anxiety, particularly vehicular anxiety. She further argues that the accident exacerbated her pre-existing psychological conditions, leading to a worsening of symptoms. The applicant relies on the clinical notes and records (“CNRs”) of her family doctor Dr. Nazal, and the various OCF-3 and OCF-18 forms submitted by her treating chiropractor and physiotherapist.

8I find that the evidence demonstrates that the applicant’s accident-related psychological symptoms do not rise to the level to find that she sustained a psychological injury as a result of the accident. I further find that the applicant has not established that her pre-existing psychological impairments preclude her recovery within the MIG.

9The CNRs of the applicant’s family doctor reveal that pre-accident, on February 24, 2021, the applicant reported job stress, feeling anxious and depressed, and was diagnosed with: major depression versus adjustment disorder; other specified anxiety disorder; panic attacks and job stress. At that time, the applicant was prescribed Cipralex. The applicant does not direct me to any other CNR entry describing mental health complaints in the ten months before the accident.

10Post-accident, the applicant reported intermittent psychological symptoms to Dr. Nazal. However, I do not find that these limited reports support that the applicant sustained an accident-related psychological condition that would remove her from the MIG. On the day of the accident, the applicant requested a refill of Cipralex. However, she did not report that this refill was linked to the accident, but rather, stated that she “feels well on it” and noted that there were “no health concerns so far” from the accident. From my review of Dr. Nazal’s CNRs, there were only two CNR entries where the applicant reported feeling anxious when driving, on January 12, 2022 and November 7, 2022. However, the applicant also reported on May 20, 2022 that she felt stressed at work, and felt a panic attack due to harassment. The applicant does not direct me to any CNR entry post-November 2022 where accident-related psychological symptoms are reported to Dr. Nazal. In my view, these limited reports of anxiety centred around driving, do not support a finding of non-minor psychological injury.

11I further do not find that the applicant’s pre-existing psychological condition precludes her recovery within the MIG. A pre-existing condition will not automatically exclude an insured’s impairment from the MIG. It must be shown to prevent maximal recovery within the limit imposed by the MIG. In terms of the applicant’s prior psychological history, I was directed to only one CNR entry, ten months pre-accident, where her psychological condition is addressed. The applicant was prescribed Cipralex at that time, which continued in the two years post-accident. The applicant does not direct me to any opinion from a treating physician, that her prior psychological history prevented her recovery within the MIG.

12The only other evidence the applicant has submitted in support of an accident-related psychological injury, are the treatment records from her chiropractic clinic, and various OCF-3 and OCF-18 forms prepared by her treating chiropractor or physiotherapist. The applicant points to the notes in the forms or the treatment notes where the treatment providers note anxiety, exacerbation of pre-existing anxiety, anxiety disorders and psychological injuries. I place limited weight on the notes of the applicant’s treating physiotherapist or chiropractor, as a psychological diagnosis would be beyond their scope of practice.

13The respondent conducted a s. 44 psychological assessment, and in a report dated April 25, 2023, Dr. Terra Seon noted the applicant’s reports of vehicular anxiety. Dr. Seon stated that the applicant reported vehicular anxiety initially post-accident, but that over time the symptoms continued to resolve, that she continues travelling to work, that she currently travels on side streets and highways in Durham with no symptoms of psychological distress and that the intensity of her symptoms of vehicular anxiety began to dissipate within a few months of the accident.

14I find that Dr. Seon’s report is consistent with the medical record and supports a finding that while the applicant did initially report some vehicular anxiety symptoms, they did not rise to the level to support an accident-related psychological condition to warrant removal from the MIG.

The applicant has not established accident-related chronic pain

15I find that the applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.

16Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

17The applicant submits that she suffers from ongoing neck, back, shoulder and elbow pain as well as headaches. The applicant relies on the CNRs of Dr. Nazal as evidence of her ongoing pain, and refers to the OCF-18 forms, where her physiotherapist noted chronic pain. The applicant further argues that she meets all six of the chronic pain criteria set out in the AMA Guides.

18I find that the applicant has not demonstrated that she suffers from a chronic pain condition, with functional impairment, as a result of the accident.

19The CNRs of Dr. Nazal reveal limited pain complaints post-accident. In the months post-accident, the applicant reported back, neck and shoulder pain, and reported starting physiotherapy. A month post-accident, she reported to Dr. Nazal that she was returning to work as a nurse. The next CNR entry was ten months later, on November 7, 2022, where the applicant reported feeling aches and pains on the left side of her body. The applicant does not direct me to any chronic pain diagnosis by Dr. Nazal, referrals to pain specialists or reports of functional limitations due to pain. Rather, the applicant reported that she was returning to her work as a nurse.

20I further do not find that the treatment records of the applicant’s chiropractic clinic reveal accident-related chronic pain. The applicant began attending physiotherapy and chiropractic treatment soon after the accident. In an entry dated March 10, 2022 (three months post-accident), the applicant reported feeling 75% improvement. Although the applicant relies on the OCF-3 and OCF-18 forms prepared by her physiotherapist which note chronic pain, I place limited weight on these forms. It is well settled that reliance on OCF forms alone is not sufficient evidence to establish an injury, without corroborating medical evidence. I find that the objective medical record does not support a finding of chronic pain as a result of the accident.

21Although the applicant argues that she meets all six of the chronic pain criteria set out in the AMA Guides, she did not provide specific submissions on the criteria. I find that the evidence does not support a finding that she meets the required three out of the six criteria. The applicant has not led any evidence of dependence on prescription pain medication, excessive dependence on healthcare providers or family, secondary physical deconditioning due to pain, withdrawal from social milieu or failure to restore pre-injury function. Without specific submissions or evidence in support of the criteria, I find that the applicant has not established that she meets the necessary criteria for a chronic pain condition as set out in the AMA Guides.

22Accordingly, I find that the applicant has not established that she suffers from chronic pain as a result of the accident.

23As I have found the applicant remains subject to the MIG, it is not necessary to consider the reasonableness and necessity of the treatment plans. In its submissions the respondent agrees that the applicant is entitled to treatment up to the MIG limit.

24The applicant further argues that both of the disputed treatment plans are payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule. The applicant submits that all of the denial letters provided by the respondent fail to comply with s. 38(8) as they do not provide a sufficient reason for the denials. Accordingly, the applicant argues that both treatment plans are payable in full, pursuant to s. 38(11) of the Schedule.

25Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

26I find that the denial letters are compliant with s. 38(8) of the Schedule.

27The respondent initially provided two denial letters, dated October 19, 2022 and December 13, 2022. In these letters the respondent referenced the respective treatment plans, and stated that the plans were denied in full, as they were not reasonable and necessary and because the applicant’s injuries did not fall outside the definition of a minor injury, with reference to the MIG. The explanations note that based on the medical documentation on file and the injuries listed on the treatment plans, the applicant’s injuries are minor and can be treated within the MIG. I find that the explanations provide clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denials. I find that standing within the MIG is a medical reason because it indicates that the applicant’s impairments are minor, which is a medical definition in the Schedule.

28The respondent subsequently sent correspondence dated April 26, 2023 which I also find was compliant with s. 38(8) of the Schedule. This denial letter included the IE reports of Dr. Seon and Dr. Alikahan, and provided detailed explanations about the IE assessors’ findings. I find that the denial provided clear medical reasons for the denial of both treatment plans sufficient to allow the applicant to make an informed decision to either accept or dispute the denials. Accordingly, the applicant has not established that either treatment plan is payable pursuant to s. 38(11) of the Schedule.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, the applicant is not entitled to interest.

ORDER

30The applicant’s accident-related impairments are predominantly minor, and she is therefore subject to treatment within the $3,500.00 limit of the MIG. The respondent agrees that the applicant is entitled to treatment up to the MIG limit.

31Since the applicant remains in the MIG, it is not necessary to consider the reasonableness and necessity of the treatment plans. The applicant is not entitled to interest.

32The application is dismissed.