Licence Appeal Tribunal File Number: 24-013882/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:
Henry Udogu
Applicant
and
SGI Canada Insurance Services Ltd.
Respondent
DECISION
ADJUDICATOR:
Bernard Trottier
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Jonathan Heeney, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Henry Udogu, 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:
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?
Is the applicant entitled to $1,356.35 for physical therapy services, proposed by Toronto Medical Centre in a treatment plan/OCF-18 (“plan”) submitted October 11, 2023?
Is the applicant entitled to $600.00 for transportation, proposed by Toronto Medical Centre in a plan submitted November 1, 2023?
Is the applicant entitled to assessments proposed by Toronto Medical Centre as follows:
i. $1,748.05 for a biopsychosocial assessment, in a plan submitted August 22, 2023?
ii. $1,995.32 for a psychological assessment, in a plan submitted September 27, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that his injuries are non-minor, as defined by the Schedule, and that they could not be treated within the MIG limit.
4Because the applicant’s injuries are considered minor, the proposed treatment plans outside of the MIG are not payable
5The proposed treatment plan for physical therapy services, under the MIG limit, is not reasonable and necessary, and therefore not payable.
6An award under s. 10 of Reg. 664 is not payable.
7Because no benefits are payable, no interest is payable.
ANALYSIS
The Minor Injury Guideline
8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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 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.
10The treatment plan for physical therapy services dated October 11, 2023, proposed by Toronto Medical Centre, sought treatment under the MIG limit. The other three treatment plans in dispute all sought treatment outside of the MIG limit. The respondent’s submissions indicated that there was $169.28 remaining for treatment within the MIG limit.
11The parties dispute whether the applicant suffered psychological impairments, and whether the applicant suffered from a chronic pain condition with functional impairment, that would warrant removal from the MIG. The parties dispute, also, whether the proposed treatment plans are reasonable and necessary as a result of the accident.
The applicant’s psychological impairments do not remove him from the MIG
12The applicant’s Disability Certificate (OCF-3), dated July 26, 2023, indicated that the applicant suffered multiple sprains/strains, headaches, irritability, stress reactions and psychological difficulties as a result of the accident. The applicant submits that, following the accident, his symptoms of anxiety, disturbed sleep and nervousness persisted through 2023 and 2024, as documented in the clinical notes and records (“CNRs”) of Dr. Parastoo Javan Bakht, the applicant’s family physician.
13The applicant submits, further, that he suffered anxiety, poor sleep and depressive symptoms post-accident, as documented in the psychological diagnostic report prepared by Courtney Dowling, registered psychotherapist (qualifying) under the supervision of Dr. Svetlana Gabidulina, psychologist. This diagnostic report was documented in the OCF-18 for a psychological assessment dated September 27, 2023. For brevity, I will refer to this report as that of Dr. Gabidulina.
14The applicant argues that Dr. Gabidulina’s report should be given more weight than the insurer’s examination (“IE”) psychological report (which denies that the applicant requires treatment outside of the MIG), because the IE report does not rebut Dr. Gabidulina’s findings.
15For these reasons, the applicant argues that the proposed biopsychosocial and psychological assessments are reasonable and necessary, and that the applicant is therefore entitled to funding for these assessments outside of the MIG limit.
16The respondent submits that the accident was uncomplicated, with no attendance by emergency services, and the applicant took a taxi home. The applicant visited a walk-in clinic nine days after the accident, where he reported a headache and some back pain.
17The respondent submits that the CNRs of Dr. Bakht do not support a psychological impairment, with only a single mention of anxiety, on August 14, 2023, with no diagnosis or recommendations for treatment, medication or referrals. The respondent submits that, in a subsequent visit with Dr. Bakht, on April 6, 2024, there are no complaints related to the accident.
18The respondent relies on the IE report of Dr. Tatiana Dumitrascu, psychologist, who reviewed the applicant’s file documentation and opined that there was insufficient evidence to substantiate the necessity of any psychological and/or social work interventions as a result of the accident. In her report, dated January 26, 2024, Dr. Dumitrascu opined that the proposed treatment plans, for a biopsychosocial and for a psychological assessment, are not reasonable and necessary.
19I find that the applicant has not directed me to corroborating evidence, outside of Dr. Gabidulina’s report, that the applicant suffered psychological impairments, because of the accident, requiring assessments and/or treatment outside of the MIG. I attach weight to the opinion of Dr. Dumitrascu, because she reviewed Dr. Gabidulina’s report, as well as the applicant’s claim forms and health records, and found that the applicant’s documentation did not contain evidence of any significant post-accident emotional difficulties. I find, also, that Dr. Dumitrascu’s IE report addresses the recommendations of Dr. Gabidulina’s report directly, contrary to what the applicant implies by the case law he cites. I attach less weight to Dr. Gabidulina’s report, because it is based on the applicant’s self-reports and does not provide any corroboration with outside records.
20For the reasons above, I find on a balance of probabilities that the applicant has not established that he suffered a psychological impairment warranting removal from the MIG.
The applicant’s pain complaints do not remove him from the MIG
21The applicant submits that, post-accident, he suffered from consistent, chronic musculoskeletal pain that impacted his daily functioning. The applicant argues that the CNRs of Dr. Bakht and other treatment providers confirm the need for treatment outside of the MIG to address his pain condition.
22The applicant argues, citing 16-000536 v. Co-operators General Insurance Company, 2016 CanLII 93133 (ON LAT) that treatment that relieves physical pain, and therefore improves function, is a legitimate medical and rehabilitative goal, even in the absence of a formal chronic pain diagnosis.
23The respondent submits that there are very few entries in the applicant’s health records that would indicate the presence of chronic pain with functional impairment. Specifically, the respondent directed me to the CNRs of Dr. Bakht, dated August 14, 2023 and March 26, 2024, where the applicant reported back pain, and no medication was prescribed. The respondent directed me, further, to Dr. Bakht’s CNRs of April 26, 2024, where there were no noted complaints related to the accident. The respondent submits that the applicant has not provided CNRs of any other treating physicians after his attendance at the walk-in clinic on July 29, 2023, nor has he provided CNRs of Toronto Medical Centre where he attended post-accident physical therapy.
24The respondent relies on the IE report of Dr. Chris Boulias, physiatrist, who opines, in his report dated January 26, 2024, that the applicant sustained uncomplicated soft tissue injuries to his lumbar spine with a favourable prognosis. Dr. Boulias opined that the applicant did not reveal, during his examination, any functional limitations or physical restrictions because of the accident. Dr. Boulias opined that the applicant had achieved maximal medical recovery by that date, about 5.5 months post-accident.
25The respondent argues that the applicant has not met his onus of demonstrating any of the six diagnostic criteria for diagnosing chronic pain syndrome as outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “AMA Guides”), with or without a formal diagnosis. In particular, the respondent argues that the applicant has not produced any evidence of any dependence on health care providers, on prescription pain medication, or withdrawal from work or social activities.
26I find that the applicant has not demonstrated that he suffers from a chronic pain condition with functional impairment, because the weight of the evidence before does not meet any of the six clinical criteria for chronic pain as outlined in the AMA Guides, even in the absence of a formal diagnosis.
27For this reason, I find that that the applicant has not met his onus of demonstrating that he suffers from chronic pain with functional impairment warranting removal from the MIG.
The treatment plan for physical therapy services is not reasonable and necessary under the MIG
28To 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.
29The applicant submits that the applicant suffered ongoing low back pain, stiffness and functional impairment, and that the treatment plan is therefore reasonable and necessary in the circumstances, supported by the CNRs of Dr. Bakht.
30The respondent submits that there are no noted complaints related to the accident in the applicant’s visit with Dr. Bakht on April 6, 2024, and that the applicant did not provide CNRs of Toronto Medical Centre, who proposed the treatment beyond that already received. The respondent argues that the applicant has not adduced evidence that the treatment plan for further physical therapy services, even under the MIG, is reasonable and necessary.
31The respondent relies on the IE report of Dr. Boulias, who opined that, when he assessed the applicant about 5.5 months post-accident, there were no objective findings of musculoskeletal or neurological impairment. He opined further that, at that stage of the applicant’s recovery, he did not require any further formal treatment programs or rehabilitation services. He opined that the applicant had achieved maximal medical recovery, that he did not require any prescriptions or over-the-counter medications, and that he should continue with self-directed home-based exercises as he had been instructed by the Toronto Medical Centre.
32I find that the applicant had not demonstrated that the treatment plan for further physical therapy, at that point in his recovery, is reasonable and necessary. I find that the CNRs of Dr. Bakht are sparse in mentioning any persistent lower back pain, and that I am persuaded by the opinion of Dr. Boulias, on a balance of probabilities, that further facility-based treatment is not required, given the lack of identifiable impairment in the applicant’s medical records. I find that the applicant has not demonstrated that further payments for physical therapy under the MIG are reasonable and necessary in the circumstances.
The applicant is not entitled to funding for the proposed treatment plans
33I find that the applicant’s injuries, because of the accident, are “minor” as defined by the Schedule.
34Since I have determined that the applicant’s injuries are minor, the OCF-18s seeking treatment outside of the MIG are not reasonable and necessary, and therefore not payable.
35I find that the applicant has not demonstrated that the proposed treatment for physical therapy under the MIG limit is reasonable and necessary, and no further treatment for physical therapy is payable.
Award
36The 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 I have found that no benefits are payable, I do not find that the respondent unreasonably withheld or delayed payment. As a result, an award under s. 10 of Reg. 664. is not warranted.
Interest
37As no benefits are owing, the applicant is not entitled to interest
ORDER
38The applicant has not demonstrated that his injuries cannot be treated within the limit set by the MIG.
39The proposed treatment plans outside of the MIG are not payable since they propose treatment outside of the MIG.
40The proposed treatment plan within the MIG is not reasonable and necessary and is therefore not payable.
41The applicant is not entitled to an award.
42No interest applies on overdue benefits in dispute.
Released: April 7, 2026
Bernard Trottier
Adjudicator