Licence Appeal Tribunal File Number: 24-001349/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:
Paul Limson
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gordon Stencell
APPEARANCES:
For the Applicant:
Bianca Marinescu, Counsel
For the Respondent:
James Schmidt, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Paul Limson, the Applicant, was involved in an automobile accident on May 24, 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, Wawanesa Mutual Insurance 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 $2,460.00 for a psychological assessment, proposed by HM Medical Network Ltd in a treatment plan/OCF-18 (“plan”) submitted November 24, 2022, denied December 15, 2022?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline.
4As the Applicant is in the MIG, it is not necessary to consider if the treatment plan in dispute is reasonable and necessary.
5As no benefits are payable, the Applicant is not entitled to interest.
ANALYSIS
APPLICABILITY OF THE MIG
The Applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
6I find that the Applicant has not demonstrated, on the balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG.
7Section 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.”
8An 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.
9The Applicant submits that the physical impairment, psychological impairment, and chronic pain he sustained in the collision remove him from the MIG.
Psychological impairment
10The Applicant has not satisfied his burden to prove that he suffers from psychological impairment that warrants removal from the MIG.
11Psychological impairments are not included in the minor injury definition. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”
12The Applicant relies on a psychological assessment by Viktoria Tolmatshov, a registered social worker, under the supervision of Fariba Touyeh, a psychologist, the Applicant underwent on December 27, 2022. The resulting psychological report is dated December 29, 2022. According to that report, the Applicant incurred psychological injuries of adjustment disorder, mixed anxiety and depressed mood, and automobile fear. The Applicant also argues that since no s. 44 assessment was undertaken for rebuttal, the respondent does not have any basis to deny it.
13As part of the psychological assessment, a variety of tests were completed by the Applicant. On the PCL-5 PTSD checklist, the Applicant obtained a score of 57 out of a possible 80. The assessor reported this score is consistent with PTSD indicating the presence of post-MVA (motor vehicle accident) PTSD directly related to his accident. In the Beck Anxiety Inventory, he obtained a score which indicated “low” anxiety. In the Beck Depression Inventory-2, the Applicant obtained a score which indicated “mild” depression. In another anxiety inventory, the Applicant fell into the moderate anxiety range.
14The assessors wrote that psychological counselling will be beneficial toward the goal of reducing symptoms of trauma through cognitive-behavioural techniques. The assessors noted in their report the Applicant reported he continues to perform all activities. The assessors also noted the Applicant is anxious, pain focused, lacks confidence about driving, has less positive outlook about his future, and fears for his children’s safety while driving, resulting from the accident. The assessors wrote the Applicant has difficulty taking care of personal tasks, such as: paying bills, maintaining his car, cleaning his house, and keeping appointments. The assessors wrote the Applicant has difficulties doing his job, such as: meeting deadlines, being on time, calling in sick, making mistakes, and not seeming to get much done.
15The Applicant referenced Elbahja v Wawanesa, to argue that the mere absence of complaints to treating practitioners does not undermine the validity of a diagnosis or assessment.
16The respondent is relying on the lack of documentary submissions and contemporaneous medical evidence of psychological issues, so they were never in question. This is the respondent’s argument for not ordering a s. 44.
17I am not persuaded on the evidence provided that the Applicant’s symptoms meet the threshold that would warrant removal from the MIG. I was directed to a list of injuries in the OCF-3 that includes nightmares and other anxiety. There is no explanation provided as to why this was indicated by Dr. A. Nailli, chiropractor, and therefore I give it little weight. I was not directed to any other records that the Applicant had complained of psychological sequala.
18The psychological assessment report has internal inconsistencies, and I have no other evidence to resolve the inconsistencies, therefore I give it less weight. At one point the report indicates the Applicant experiences negative thoughts leading to an elevated level of stress and anxiety on a consistent basis. At another point the report indicates, “He [the Applicant] reports that in the past 3 or 4 weeks he feels anxious or worried and that he is bothered by these feelings hardly at all.” The report notes the Applicant self reported struggling with daily personal tasks, yet the Referral Questions section of the report includes, “Mr. Limson stated that he continues to perform all activities of daily living.” The report notes the Applicant self reported struggling with work yet in the Referral Questions section the assessors had the opportunity to identify any employment tasks impacted as a direct result of the MVA and none are listed. The assessors indicated they relied on the OCF-3 and the clinical notes and records (CNRs) of Dr. E. Alegado. The report makes no reference to the CNRs and they are not before me to be considered.
19I considered assessor Fariba Touyeh, psychologist, notes included with the OCF-18, that the Applicant reported he experiences financial stress and has to borrow money to pay bills. His financial difficulties were not specifically attributed to the MVA, and it is not clear when they started. Though mentioned in the OCF-18, financial stress was not reported in the psychological report. This represents that the self-reported psychological challenges contained in the psychological report are not solely related to the MVA.
20There is no contemporaneous or corroborating evidence before me that supports the conclusions of Viktoria Tolmatshov, a registered social worker, under the supervision of Fariba Touyeh, a psychologist. Based on the self-reported ability to continue to perform all activities of daily living I find the Applicant’s symptoms do not interfere with his functional ability and therefore do not rise to a level of impairment.
21I find that the Applicant has failed to discharge his burden of proof to establish that he sustained more than a minor injury as a result of the accident.
Chronic pain
22The Applicant has not satisfied his burden to prove that he suffers from chronic pain that warrants removal from the MIG.
23Chronic pain with functional limitations is not included in the minor injury definition and a finding that the Applicant sustained chronic pain with functional limitations as a result of the accident would permit him to seek treatment beyond the $3,500.00 funding limit provided by the MIG.
24Although not part of the Schedule, the Tribunal has found the six criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain.
25The Applicant references, “functionally disabling pain” in his submissions. The Applicant did not make submissions how chronic pain limits his functional abilities, likewise, has not referred to the Guides, or a chronic pain diagnosis.
26I note the evidence before me, referenced above, the psychological report dated December 9, 2022, that the Applicant has ongoing post-motor vehicle accident (MVA) pain interfering with the ability to participate in social, employment, and physical health activities. There is no evidence before me that there have been changes to the Applicant’s participation in social, employment, and physical health activities resulting from the motor vehicle accident, therefore I give the psychological report little weight.
27Based on the evidence before me, and the absence of contemporaneous and corroborating evidence about chronic pain resulting from the MVA, I find that the Applicant has failed to discharge his burden of proof to establish that he sustained anything more than a minor injury as a result of the accident.
Physical injuries
28In his submissions, the Applicant referenced physical injuries as a basis for removal from the MIG but has not directed me to evidence in support of non-minor injuries.
29I find that the Applicant has failed to discharge his burden of proof to establish that he sustained anything more than a minor injury as a result of the accident.
30As I find the Applicant is not removed from the MIG, I do not need to consider if the treatment plan is reasonable and necessary.
Interest
31As there are no benefits payable, the Applicant is not entitled to interest.
ORDER
32I find that:
i. The Applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG.
ii. As the Applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
iii. The Applicant is not entitled to interest.
Released: January 8, 2026
Gordon Stencell
Adjudicator