Licence Appeal Tribunal File Number: 24-011559/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:
Necolan Thomas
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
John Mazzilli
APPEARANCES:
For the Applicant:
Larry Henry, Counsel
For the Respondent:
Sophia Souffront, Counsel
HEARD:
By way of written submission
OVERVIEW
1Necolan Thomas, (“the applicant”), was involved in an automobile accident on August 1, 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 TD General Insurance Company (“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 limit? Note: The parties agree the MIG limits have not been exhausted and there is $750.00 remaining as of the date of the hearing.
ii. Is the applicant entitled to $800.00 for chiropractic services, proposed by Mackenzie Medical in a treatment plan/OCF-18 (“plan”) submitted July 30, 2024, and denied August 1, 2024?
iii. Is the applicant entitled to $2,023.03 for physiotherapy services, proposed by Mackenzie Medical in a plan submitted May 8, 2024, and denied May 14, 2024?
iv. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Scarborough Physiotherapy & Rehabilitation Centre in a plan submitted August 7, 2024, and denied August 19, 2024?
v. Is the applicant entitled to $1,951.50 for a functional ability’s evaluation assessment, proposed by Scarborough Physiotherapy & Rehabilitation Centre in a plan submitted July 22, 2024, and denied July 30, 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?
Added Issue
3Is the applicant liable to pay $1,000.00 in costs to the respondent?
RESULT
4The applicant remains in the MIG; therefore, it is not necessary for me to consider the reasonableness or necessity of the disputed treatment and assessment plans.
5As no benefits are owing, interest is not owing.
6The applicant is not entitled to an award.
7The applicant is not liable to pay costs to the respondent.
8The application is dismissed.
PROCEDURAL ISSUES
Notice of Motions filed by the respondent-Background
9On August 26, 2025, a Motions hearing was held at the request of the respondent because the applicant failed to submit her hearing submissions prior to the deadline set out in the Notice of Hearing, and her submissions were only provided after the respondent filed its hearing submissions.
10At the motions hearing the respondent requested the application be dismissed, in the alternative disallow the applicant from relying on her submissions, further in the alternative, allow the respondent to deliver written responding submissions to the applicant’s late filed submissions. The respondent also requested costs from the applicant in the amount of $1000.00 for her breach of the Tribunals orders and because of the extra time required to produce new hearing submissions.
11The hearing Adjudicator found it appropriate to accept the applicant’s submissions as part of the hearing record and allowed the respondent to file new submissions in response. The hearing Adjudicator also found it appropriate that I make a final determination with respect to costs.
12Accordingly, I have added the issue of costs to the issues in dispute and will provide an analysis and ruling below in my decision.
The respondent’s second notice of motion
13On September 25, 2025, the respondent filed a Notice of Motion to be heard at the scheduled hearing. The respondent requests an order that a) the applicant’s reply submissions be struck and given no weight, b) alternatively, an order that paragraphs 4,7,8 and 9 and the corresponding Canada Life file and the report of Dr. Pilowsky be struck and given no weight, and c) An award for costs in the amount of $1,000.00.
14The respondent argues that it is entitled to know the full case to be met from the outset, so that it knows what an appropriate response is. It argues that the applicant did not introduce the collateral benefits file, and the report of Dr. Pilowsky at first instance and therefore it would be prejudicial to the respondent because this constitutes an unfair surprise with no ability to respond. It argues that these documents ought to be struck because the applicant is attempting to split her case and make improper use of new documents and arguments.
15The applicant did not provide the Tribunal with submissions in response to the notice of motion.
16I agree with the respondent in part and find that some of the applicant’s reply to submissions are not proper because new arguments and evidence was introduced. In accordance with Licence Appeal Tribunal Rule 9.3 I find that the applicant cannot rely on paragraphs 4,7,8 and 9, the Canada Life file and the report of Dr.Pilowsky of her reply submissions at the hearing because it would be highly prejudicial to the respondent if I allowed evidence that was not disclosed or argued at first instance into the hearing because the respondent does not have an ability to reply to this evidence, and because an explanation was not provided by the applicant as to why this evidence was not submitted or relied upon at first instance. I also find that the applicant can rely on the remaining paragraphs and submissions in her reply to submissions because they are proper and address the respondent’s hearing submissions.
ANALYSIS
Minor Injury Guideline
17I find on a balance of probabilities that the applicant has not established that she should be removed from the MIG.
18Section 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.”
19An 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
Does the applicant suffer from a pre-existing condition that warrants removal from the MIG?
20I find on a balance of probabilities that the applicant has not established that she suffers from a documented pre-existing condition that precludes recovery within the confines of the MIG.
21The applicant submits that as a result of the accident she suffers from headaches, anxiety, sprain and strain of the cervical, thoracic, and lumbar spine, sprain of the sacroiliac joint, shoulder joints, parts of the shoulder girdle and other anxiety and sleep disorders. She submits that her headaches, back, neck and shoulder pain from a previous accident in November of 2022 have been aggravated by the subject accident and therefore treatment outside of the MIG limits is warranted. The applicant relies on the CNRs of her family physician, Dr. Chang, the CNRs of Scarborough Physiotherapy and Rehabilitation, and the CNRs of One Stop Medical Centre.
22The respondent argues the applicant’s accident-related injuries are soft tissue in nature and that the applicant has not established that her documented pre-existing conditions prevent her from achieving maximal recovery under the confines of the MIG. The respondent relies on the s. 44 physiatry report of Dr. Gordon, physiatrist, and her report dated July 19, 2024, which shows that the applicant’s previous accident should not prevent her from achieving maximal medical recovery if subjected to the MIG. The respondent further relies on a s. 44 psychological report dated July 19, 2024, by Dr. Azizli, psychologist, and a paper review report dated August 30, 2024.
23I find on a balance of probabilities that the applicant has not established that she suffers from a documented pre-existing condition that precludes recovery within the confines of the MIG. The evidence shows that the applicant’s injuries from the subject accident are consistent with her sprains and strains from her 2022 accident, however, the CNRs of Scarborough Physiotherapy and Rehabilitation show that treatment for her 2022 accident-related sequela ended on April 17, 2023, approximately four months pre-subject accident and the subsequent visits to her family physician of May 8, May 29, 2023 and up to the date of the subject accident support degenerative disc disease in her cervical and lumbar spine and right finger pain, both of which are not accident related conditions. There is a lack of corroborating contemporaneous medical evidence that support a finding that these conditions preclude her recovery within the confines of the MIG, which is the requirement for removal under s. 18(2).
24For this reason, I accept the report and opinion of Dr. Gordon, which I note included a thorough file review of the applicant’s pre- and post accident medical file. Dr. Gordon concludes that the applicant’s injuries from the subject accident are minor in nature and there are no significant musculoskeletal impairments identified to indicate a need for further facility-based treatment. Additionally, taking into consideration the applicant’s previous motor vehicle accident, Dr. Gordon opines that “there is evidence of a prior motor vehicle accident (November 2, 2022) where the claimant sustained neck, shoulders, and low back injuries. This may delay but should not prevent the claimant from achieving maximal medical recovery if subject to the $3,500.00 limit.” I find that Dr. Gordon’s opinion is consistent with the contemporaneous corroborating evidence that supports a finding that the applicant does not suffer from a pre-existing condition that precludes her recovery within the confines of the MIG.
25I find on a balance of probabilities that the applicant has not established that she suffers from a documented pre-existing condition that precludes her recovery within the confines of the MIG.
Does the applicant suffer from chronic pain with a functional impairment that warrants removal from the MIG?
26I find on a balance of probabilities that the applicant has failed to establish that she suffers from chronic pain with a functional impairment, or chronic pain in accordance with the American Medical Association Guidelines (“AMA Guides”).
27The applicant submits that she meets the criteria to be removed from the MIG due to chronic pain. The applicant submits that based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“the Guides”) she meets the criteria for chronic pain. Under the AMA Guides, 3 or more of the following characteristics must be met for a diagnosis of chronic pain.
a) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
b) Excessive dependence on healthcare provider, spouse, or family.
c) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
d) Withdrawal from social milieu, including work, recreation, or other social contacts.
e) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.
f) Development of psychosocial sequalae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
28The applicant submits that she meets three of the criteria under the AMA Guides, such as she continues to be medically followed by her family physician Dr. Chang and Dr. Chen of the Scarborough Pain Clinic, where she has received interventional pain management and injections for specific nerve areas, she continues to depend on analgesic medication two years post accident and she has not returned to her pre-injury function as she is only able to perform light duties at home and work. The applicant relies on the CNRs of her family physician Dr. Chang, the report and CNRs of Dr. Chen from the Scarborough Pain Clinic dated November 22, 2023, and the chronic pain report of Dr. Kessie, physician (CCFP-EM) dated November 8, 2024, to support her claim.
29The respondent argues that the applicant has failed in her onus to prove that she suffers from chronic pain with a functional impairment or that she meets the diagnostic criteria under the AMA Guides for a diagnosis of chronic pain. It argues that that the applicant has not met her onus to prove that her pain is severe, and debilitating and that she does not have an excessive dependency on health care providers or medications and that she has returned to her pre accident full time employment with no restrictions, and as the primary caregiver to her daughter and ill mother. The respondent relies on the applicant’s prescription summary from Walmart pharmacy, the psychological report of Dr. Azizli, psychologist, dated July 19, 2024, her paper review addendum report dated August 30, 2024.
30The respondent further argues that the investigation report and associated footage from Xpera in a report dated January 21, 2025 shows that the applicant engages in her day to day activities as she is observed to be active outdoors, operates a motor vehicle, attends work, a shopping mall with family, a convenience store, a health clinic, banks, a Costco, a long term care home and a restaurant with good function and no signs of distress or discomfort. It argues that the surveillance evidence shows the applicant moving her head from side to side, walking various distances, standing, sitting, bending over at the waist, carrying multiple items of assorted sizes, and engaging in conversation with unknown persons with no obvious signs of discomfort or distress.
31The applicant did not argue that she suffers from chronic pain with a functional impairment which is the test before me to be removed from the MIG, but rather the applicant relies on the chronic pain criteria under the AMA Guides to establish chronic pain. While I am not bound by the AMA Guides for the purpose of determining the presence of chronic pain, I note that the Tribunal has accepted them as a useful analytical tool to assess chronic pain in the absence of a diagnosis.
32I find that the applicant has not met the criteria under the AMA Guides that supports a diagnosis of chronic pain for the following reasons.
33The applicant did attend her family doctor post accident, however approximately half of the visits are for routine check ups and unrelated conditions. The evidence shows that the applicant’s first visit to her family physician with accident-related sequela was approximately one month post accident. The following visit on September 11, 2023, does not reference any accident-related complaints. Further complicating the applicant’s position is a CNR from Dr. Chang from October 3rd, 2023, approximately 2 months post accident where the applicant complains of a fall at work which resulted in multiple injuries.
34While the evidence shows that the applicant attended Scarborough pain clinic, the CNRs of Dr. Chen do not distinguish or link the subject accident to the applicant’s complaints, because Dr. Chen’s diagnosis is vague as his diagnoses’ consistently reference “Fall, Other injuries or trauma, MVA.” As noted above the applicant’s fall occurred post accident and I was not pointed to what other injuries or trauma Dr. Chen is referring to.
35Following the accident the applicant was only prescribed a two-week prescription for Naproxen by her family physician which is attributable to the accident. She also received approximately fifteen nerve block injections between February 2024 and May 30, 2024 from the Scarborough Pain Clinic, which I note I cannot fully attribute to the subject accident because Dr.Chen’s diagnoses’ as outline above. I also note that even if I accept that the applicant has an excessive dependence on medications, this will only satisfy one of the six criteria under the AMA Guides, which does not support a diagnosis of chronic pain under the AMA Guides.
36The applicant relies on the report of Dr. Kessie to support her claim of excessive dependence on medications, however Dr. Kessie’s report shows that as of October 8, 2024 (the date of the assessment) the only medications she is taking is Metformin and Pantoprazole, which I note are to treat diabetes and acid reflux, and not assistive with pain or accident related injuries, further supportive of a finding that the applicant has not met her onus that supports a finding of chronic pain under the AMA Guides.
37Finally, the applicant was employed as an educational assistant at the time of the accident. She returned to her pre-accident employment following the accident with no restrictions or modifications. In addition, the CNRs of Dr. Chang shows that on January 8th, 2024, approximately four months post accident the applicant sought time off work to care for her aging mother for whom she is the primary caregiver. The applicant’s ability to return to her full-time employment and care for family members does not support the applicant’s submission that she has not returned to pre-accident function at home or at work because the evidence shows that she has and maintains the physical capacity to pursue work and family needs.
38I find on a balance of probabilities that the applicant has failed to establish that she suffers from chronic pain with a functional impairment, or chronic pain in accordance with the AMA Guides.
The treatment and assessment plans
39The applicant remains in the MIG; therefore, it is not necessary for me to consider the reasonableness or necessity of the disputed treatment and assessment plans.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, it follows that interest is not owing.
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.
42The applicant submits that the respondent’s denials for treatment despite compelling clinical evidence demonstrate conduct that is inflexible, imprudent, and stubborn and that this conduct has forced the applicant to resort to litigation to obtain basic benefits, therefore warranting an award.
43As the respondent did not unreasonably withhold or delay the payments of any benefits from the applicant, it follows that the applicant is not entitled to an award from the respondent.
Costs in the amount of $1000.00
44I find that the applicant is not liable to pay $1000.00 in costs to the respondent.
45The respondent submits that it has been continuously put through the time and expense of having to bring motions and deliver multiple sets of submissions due to the applicant’s failures and actions. It submits that the applicant’s inadvertence in overlooking the deadline to file hearing submissions was not only a few days, but 19 days late.
46The applicant submits that she was delayed providing her submissions because of a human administrative mistake and not a wilful disregard of the Tribunal’s orders. She argues that as soon as the respondent filed its materials, applicant’s counsel recognized the oversight and filed on the second business day following the respondent’s submissions, which demonstrated diligence and good faith.
47She argues that costs are not warranted because there is no evidence of bad faith, vexatious conduct, or deliberate disregard. It argues that awarding costs for a procedural delay would be disproportionate and inconsistent with the LAT’s access to justice mandate.
48The Licence Appeal Tribunal Rule 19 informs that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs. In considering the factors under Rule 19.5 the applicant did breach a Tribunal direction by not filing her hearing submissions in the time set out in the Notice of hearing, however this conduct did not interfere with the Tribunal’s ability to carry out a fair, efficient and effective process, with limited prejudice to the respondent because it was given an opportunity to refile its hearing submissions.
49For the reasons above I find that the applicant is not liable to pay costs in the amount of $1,000.00 to the respondent.
ORDER
50It is ordered that:
i. The applicant remains in the MIG; therefore, it is not necessary to provide an analysis of the reasonableness or necessity of the disputed treatment and assessment plans.
ii. The applicant is not entitled to interest or an award.
iii. The applicant is not liable to pay costs to the respondent.
iv. The application is dismissed.
Released: April 14, 2026
John Mazzilli
Adjudicator