Licence Appeal Tribunal File Number: 24-005829/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:
Klyeba Nicome
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Hermia Leung, Paralegal
For the Respondent:
Ari Singer, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Klyeba Nicome, the applicant, was involved in an automobile accident on May 10, 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, 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:
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 services proposed by Prime Health Care Inc. in treatment plans/OCF-18s as follows:
$3,342.39 for chiropractic services, submitted June 2, 2022?
$1,563.72 for shockwave therapy services, submitted December 7, 2022?
$1,836.16 for chiropractic services, submitted December 7, 2022?
$2,200.00 for a psychological assessment, submitted August 31, 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
3For the reasons below, I find that:
The applicant’s injuries are predominantly minor; thus, the applicant remains in the MIG and is subject to the MIG limit.
Since the applicant remains within the MIG, I do not need to evaluate the reasonableness and necessity of the disputed treatment plans.
The applicant is not entitled to interest or an award.
ANALYSIS
Are the applicant’s injuries predominantly minor?
4I find that the applicant has not met the burden to demonstrate that her injuries fall outside the MIG.
5Section 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.”
6An 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.
7The applicant submits that she should be removed from the MIG on the basis of chronic pain and psychological impairment.
Chronic Pain with Functional Limitations
8The applicant asserts that she sustained serious injuries in the accident and continues to suffer from low back pain, sleep disturbances, and anxiety when travelling by vehicle. She maintains that these symptoms are directly related to her accident-related pain and that she had no pre-accident history of pain or functional limitations. In support of her position, she relies on the definition of chronic pain set out in T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ONLAT), which characterizes chronic pain as ongoing or recurrent pain persisting beyond the usual course of acute illness or injury—typically 3 to 6 months or more—and negatively impacting overall well-being.
9The respondent maintains that the applicant’s injuries consist solely of soft-tissue strains to the spine and shoulder, which fall within the MIG. The initial Disability Certificate (OCF-3) documented cervical, thoracic, lumbar, and shoulder strains, with no indication of fractures, dislocations, tears, or other structural pathology. The respondent further notes the absence of any contemporaneous diagnosis of chronic pain and asserts that there is no evidence of severe or debilitating functional impairment. It relies on the section 44 insurer’s examination conducted by general practitioner Dr. R. Moolla on August 9, 2024. Dr. Moolla diagnosed an uncomplicated lumbosacral myofascial strain, found no objective impairment, and concluded that the injuries were minor and expected to resolve within 8–12 weeks.
10I find that the applicant has not directed me to a diagnosis of chronic pain and has not established functional impairment attributable to chronic pain that would remove the applicant from the MIG.
11Records from the applicant’s medical clinic, Prime Health, dated May 29, 2021, indicate that the applicant previously reported pain in the cervical, thoracic, and lumbar spine and in the shoulders. This prior history directly contradicts the applicant’s assertion that she had no pre-accident pain or functional limitations, and it undermines her claim that the current symptoms are solely attributable to the accident.
12The applicant reports that she began experiencing low back pain about one week after the accident and was referred for an X-ray, which she states was inconclusive. According to the applicant, she attended physiotherapy and osteopathy once weekly for several months, after which her symptoms reportedly improved and resolved.
13The clinical notes and records (CNRs) from Prime Health indicate that the applicant first reported neck, shoulder, and lower back pain on May 28, 2022, shortly after the accident. At that time, examination revealed normal lower back lateral flexion and standard study results, with pain only on shoulder external rotation. Subsequent entries show that on November 2, 2022, imaging of the cervical spine and shoulder was normal, with no fractures or significant abnormalities. The following documented assessment was performed on March 9, 2024, during which Dr. Akber noted no visible spinal deformity and no motor or sensory deficits in the lower limbs. Additional imaging on February 29, 2024, again showed normal findings. While these records confirm intermittent pain complaints, there is no indication in the CNRs that, after the initial post-accident period, Dr. Akber or any other provider explicitly linked these ongoing symptoms to the accident.
14In his section 44 report dated August 9, 2024, Dr. Moolla confirmed a diagnosis of lumbosacral myofascial strain. His examination revealed normal lumbar alignment and neurological function, with no swelling, spasm, deformity, or radiculopathy. He concluded that the injuries were minor and typically resolve within 8–12 weeks.
15I accept that the applicant continues to report intermittent low back pain. However, given the documented history of similar pain before the accident, I am not satisfied that these ongoing symptoms are proven to be accident-related. The applicant’s medical evidence consists primarily of clinical notes reflecting her self-reported symptoms, without objective findings or a clear causal link to the accident. For this reason, I assign that evidence limited weight. By contrast, I place significant weight on Dr. Moolla’s IE report, which is detailed, based on a comprehensive review of the medical file and an in-person examination, and supported by objective findings and recognized medical principles. His clear rationale for concluding that the injuries are minor and consistent with soft-tissue strains makes his opinion more persuasive than the applicant’s self-reports.
16The applicant bears the onus of establishing that she suffers from accident-related ongoing pain that results in a functional limitation sufficient to remove her from the MIG. While she asserts that her pre-accident cervical, thoracic, lumbar spine, and shoulder pain was aggravated by the accident, she has not provided persuasive medical evidence to support this claim. The clinical records and assessments do not document functional limitations attributable to the accident, nor do they include a diagnosis of chronic pain or chronic pain syndrome. Physical examinations consistently show normal range of motion and neurological function, with only localized tenderness, and imaging reveals no structural injury. In the absence of objective evidence linking her ongoing symptoms to the accident or demonstrating functional impairment, the applicant has not met her burden.
17The applicant also argues that ongoing pain and functional limitations—particularly with bending, prolonged standing, heavier household tasks, and lifting—demonstrate chronic pain beyond a simple sprain or strain. She maintains that her treating clinicians documented persistent pain.
18The applicant’s evidence does not establish that her ongoing pain complaints are causally related to the subject accident. For example, on June 24, 2023, Dr. Akber documented reduced mobility and ankle pain but attributed these issues to two prior accidents, not the May 2022 accident.
19The applicant reported to Dr. Moolla that she remains independent in activities of daily living, including bathing, dressing, grooming, light housekeeping, laundry, meal preparation, and shopping (avoiding heavy bags). She noted some difficulty standing for longer than 30 minutes but no difficulty with sitting, walking, driving, or using technology. Dr. Moolla did not attribute these functional observations to the subject accident.
20While intermittent pain has persisted beyond the acute phase, the evidence does not establish chronic pain syndrome with significant functional limitations. The applicant remains employed, is independent in daily activities, does not require prescription analgesics, and reports only intermittent pain, which is relieved by conservative measures.
21Accordingly, on a balance of probabilities, I find that the applicant has not demonstrated chronic pain with functional limitations warranting removal from the MIG.
Psychological Impairment
22The applicant submits that she had no pre-accident history of psychological difficulties. She points to her reported anxiety and low mood following the accident and argues that her psychological impairments warrant removal from the MIG.
23The respondent relies on the psychological IE conducted by Dr. Rod Day, who concluded that there is no accident-related psychological impairment and no need for psychological treatment. The respondent emphasizes that the applicant herself indicated she did not believe psychological treatment was required.
24The initial examination report from Prime Health Care dated May 29, 2021, documents complaints of post-traumatic stress, anxiety, sleep difficulties, and driving anxiety. Because this report predates the subject accident, it does not establish accident-related psychological impairment. It also undermines the applicant’s assertion that she had no pre-accident psychological issues.
25The clinical notes and records from Dr. Akber dated May 28, 2022; July 2, 2022; and March 9, 2024, do not document any psychological symptoms. The applicant has not indicated that any other records contain such reports. On the available evidence, I find no support for accident-related psychological impairment.
26The psychological pre-screening interview conducted on July 25, 2022, by Dr. Jacqueline Brunshaw recommended a comprehensive assessment to evaluate the applicant’s post-accident changes. The applicant reported pain, sleep issues, frustration, irritability, social withdrawal, and nervousness near vehicles. She was motivated to return to her pre-accident life and believed psychotherapy could help. Dr. Brunshaw noted that untreated symptoms could impede recovery and delay resumption of pre-accident activities.
27A second pre-screen interview was conducted the same day by Dr. Chad Hefford and Moreska Malik, who noted similar self-reported symptoms, including sleep difficulties, irritability, frustration, and reduced socialization.
28These pre-screen reports are based primarily on the applicant’s self-report and contain no objective clinical findings. Accordingly, I assign them limited weight.
29The psychological IE conducted by Dr. Day on July 5, 2024, consisted of a 2.5-hour assessment, including psychometric tests. He found the applicant honest, cooperative, without painful behaviour or current psychological issues, and stated that she does not believe she needs psychological treatment or has mental health concerns. Dr. Day concluded there is no significant accident-related psychological condition or need for treatment.
30I give considerable weight to Dr. Day’s assessment because it is detailed and supported by psychometric testing. His conclusions reflect the applicant’s own statements to him during the evaluation, where she denied psychological concerns and declined treatment. Most importantly, Dr. Day’s findings are consistent with the objective medical record: the clinical notes from the applicant’s family physician do not document any accident-related psychological complaints or diagnoses.
31The applicant has not submitted any psychological evidence that challenges or is equivalent in scope or quality to the respondent’s expert opinion.
32Having considered the evidence, including treating and IE opinions and the parties’ submissions, I find that the applicant has not met her onus to establish that her injuries fall outside the MIG or that she should otherwise be removed from it on the basis of psychological impairment.
33Accordingly, on a balance of probabilities, I find that the applicant’s impairments are predominantly minor and that she remains subject to the MIG and its $3,500 limit.
Is the applicant entitled to the disputed treatment plans?
34As the applicant remains within the MIG, I do not need to assess the reasonableness and necessity of the disputed treatment plans.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Where no benefits are owed, there are no overdue amounts on which interest can accrue.
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.
37The applicant submits that the respondent unreasonably refused to fund the disputed treatment and assessment plans and failed to consider the available medical evidence properly. She argues that this conduct delayed or impeded her recovery and warrants an award.
38The respondent maintains that it acted in good faith throughout the adjustment of the claim. It states that it promptly issued denials with reasons, retained independent experts (Drs. Moolla and Day) to assist in entitlement decisions, and paid benefits within the MIG until the limit was reached.
39The respondent argues that, because the applicant is ultimately not entitled to the disputed benefits, there can be no unreasonable withholding or delay. It submits that there is no evidentiary basis for an award.
40Having found that the applicant remains subject to the MIG and is not entitled to the disputed treatment plans, I conclude that there is no basis for finding that the respondent unreasonably withheld or delayed payment of those benefits. If benefits are not payable, their non-payment cannot be characterized as unreasonable within the meaning of s. 10.
41I also accept that the respondent obtained contemporaneous IE opinions from qualified experts and relied on those opinions in adjusting the claim. The respondent’s conduct, as reflected in the record and submissions, is consistent with a good-faith effort to adjudicate the claim within the MIG framework. The record does not support a finding that the respondent’s conduct was excessive, imprudent, or otherwise met the threshold for a special award.
42Accordingly, I find that the respondent is not liable to pay an award.
ORDER
43For the above reasons, it is ordered that:
i. The applicant’s injuries are predominantly minor; thus, the MIG limit applies.
ii. Since the applicant remains within the MIG, I do not need to evaluate the disputed treatment plans.
iii. The applicant is not entitled to interest or an award.
Released: January 7, 2026
Harouna Saley Sidibé
Adjudicator