Nwabueze v. Unifund Assurance Company, 2026 CanLII 37027

Licence Appeal Tribunal

Citation: Nwabueze v. Unifund Assurance Company, 2026 ONLAT 24-013612/AABS

Licence Appeal Tribunal File Number: 24-013612/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:

Ekene Nwabueze

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Kim Mohammed-Sieudhan, Paralegal

For the Respondent: Susana Cardoso, Counsel Sin Ying Cheng, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ekene M. Nwabueze, the applicant, was involved in an automobile accident on June 3, 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 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 limit?

ii. Is the applicant entitled to the services and assessments proposed by Alma Rehab as follows:

(a) $3,919.58 for physiotherapy services in the treatment plan dated November 23, 2023;

(b) $3,512.56 for physiotherapy services in the treatment plan dated May 21, 2024; and

(c) $1,995.33 for a psychological assessment in the treatment plan dated October 13, 2023?

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

3I find that the applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.

4The applicant is not entitled to the treatment plans in dispute, nor interest.

5The respondent is not liable to pay an award.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

6I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

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) of the Schedule defines a "minor injury" as "one or more of a strain, sprain, 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.

9In this matter, the applicant submits that he should be removed from the MIG because he suffers chronic pain and a psychological impairment as a result of the subject accident.

a. The applicant is not removed from the MIG based on a chronic pain condition

10I do not find that the applicant suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.

11Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. Both parties have referred to the Tribunal decision in 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) ("16-000438 v. The Personal"), where it was held that,

For chronic pain to be more than sequelae from the soft tissue injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effects on the person's function, or whether the pain is bearable without treatment will not meet the applicant's burden to show that chronic pain is more than mere sequelae.

12The Tribunal has found 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.

13The applicant submits that his prolonged physical and functional impairments as well as the necessity for chronic pain management collectively undermine the applicability of the MIG classification of his injuries. He argues that the compelling medical evidence demonstrates a persistent impairment that warrants exclusion from the MIG. The applicant relies upon the Clinical Notes and Records ("CNRs") of his family physician, Dr. Olaolu Adedayo, and the CNRs of Alma Rehab Inc. where he attended for 63 therapy sessions, including chiropractic care and athletic therapy aimed at addressing his musculoskeletal impairments and ongoing chronic pain. The applicant also relies upon the assessment by Dr. Meera Harris, at Rivlin Medical Group, Chronic Pain Management, dated January 15, 2025, which notes that his pain has persisted for 18 months post-accident, rated 8/10 at worst. He has undergone nerve block injections and has been prescribed Cymbalta which reflects a level of severity and functional impairment that far exceeds what the MIG contemplates.

14With respect to the Insurer's Examination ("IE") Physician Paper Review Report of Dr. Ijaz Chaudhry, dated December 29, 2023, the applicant submits that Dr. Chaudhry's opinion that his injuries have "likely resolved" is speculative and contradicted by the applicant's ongoing symptoms and his chronic pain management including nerve block injections.

15The respondent submits that the applicant remains properly within the MIG as he has suffered uncomplicated soft tissue injuries only. The respondent submits that the CNRs of Dr. Adedayo are limited. The initial CNR dated June 8, 2023, assessed the applicant with "whiplash injury" and the second, and only other CNR dated August 3, 2023, assessed the applicant with "neck pain/back pain following MVA – muscular", both of which falls within the definition of a minor injury as defined at s. 3(1) of the Schedule. The respondent submits that with respect to the applicant's assessment by Dr. Harris, the applicant was diagnosed with myofascial pain post-accident, again a diagnosis which falls within the definition of a minor injury. The respondent argues that the applicant only sought medical attention a total of three times since the accident and always received minor injury diagnoses consistent with s. 3(1) of the Schedule.

16The respondent submits that to date, the applicant has not produced compelling objective evidence by a health practitioner diagnosing him with chronic pain syndrome, nor has he provided compelling medical evidence to demonstrate functional impairment or disability. The applicant merely relies on his self-reported pain complaints.

17The respondent relies upon the IE report prepared by Dr. Chaudhry, dated December 29, 2023 and the IE Physician Assessment Report, prepared by Dr. Ahmad Belfon, dated September 25, 2024, to demonstrate that the applicant does not suffer from functional impairment or disability. Both assessors concluded that the applicant sustained uncomplicated soft tissue injuries without evidence of significant musculoskeletal or neurological sequela.

18In the applicant's reply submissions, he states that he attended his family doctor more than two times following the accident. He states that he visited Dr. Adedayo on November 7, 2024, to follow up on his injuries and on January 9, 2025, where it is noted that he suffers "chronic neck pain following the MVA > 1 year ago" and referred him to a chronic pain specialist and prescribed pain medication. He claims that the respondent has tried to misconstrue and ignore the evidence by stating that he only sought medical attention a total of three times since the accident.

19I find that the applicant has not met his evidentiary onus to prove, on a balance of probabilities, that he suffers from chronic pain.

20I give significant weight to the CNRs of Dr. Adedayo, relied upon by both parties. I note however, that the applicant in his initial submissions only provided the CNRs of Dr. Adedayo dated August 3, 2023. It was only in his reply submissions that he subsequently referred to and provided the CNRs dated November 7, 2024 and January 9, 2025. The applicant has not provided any explanation as to why he did not refer to these subsequent CNRs to support his position and why they were only provided in his reply. I therefore do not accept the applicant's argument that the respondent has tried to misconstrue or ignore evidence when he himself did not rely upon these subsequent records in his initial submissions.

21I find upon review of these CNRs, that at the applicant's initial appointment on June 8, 2023, he had complaints of pain to his neck, both shoulders, left wrist and right ankle. Dr. Adedayo observed reduced range of motion over the neck and assessed the applicant with a whiplash injury. The applicant subsequently saw Dr. Adedayo on August 3, 2023, and complained of upper back and neck pain with occasional left-hand twitches. He assessed the applicant with neck pain/back pain – muscular and prescribed Baclofen and physiotherapy. There was then a significant lapse in records for 15 months before the applicant returned to see Dr. Adedayo. On November 7, 2024, he was assessed with persistent neck pain. He was referred for imaging which was negative. The applicant was then seen on January 9, 2025, where he was assessed with "chronic neck pain following MVA > 1 year ago." He was prescribed Baclofen and referred to a pain clinic. I find that the applicant was diagnosed with soft tissue injuries in 2023. There was then a significant lapse in time before the applicant returned to see his family doctor at which time he complained of persistent neck pain. While Dr. Adedayo subsequently assessed the applicant with chronic pain on January 9, 2025, I find that there is no description of the applicant's complaints, there is no indication that an assessment was performed, nor is there any mention of any functional limitations suffered by the applicant within the records.

22I find that while the applicant submits that he attended on 63 occasions at Alma Rehab following the accident, only the List of Scheduled Appointments was submitted indicating that he attended from June 6, 2023 to October 25, 2024. I find that despite providing a list of his attendances, the applicant has not provided the CNRs from the clinic indicating the type of treatment received, the duration of the treatment sessions, the areas of the body treated, or any documented improvement received from the treatment sessions. I find that while the applicant provided a copy of the two treatment plans in dispute prepared by Alma Rehab, a treatment plan in itself is not evidence of ongoing impairments.

23I further agree with the respondent, that the report of Dr. Harris, concludes that the applicant has myofascial pain post-accident that is affecting his upper body. There is no indication that Dr. Harris diagnosed the applicant with chronic pain or considered his complaints to be chronic. While the applicant received nerve block injections on January 15, 2025 and January 22, 2025, I agree with the respondent that there was no follow up appointments or further reports from Dr. Harris as to the applicant's impairments or improvement from the injections. I further find that Dr. Harris confirms that the applicant works full time from home doing desk work and does not specify any functional limitations experienced by the applicant.

24I find that the applicant has not pointed or directed the Tribunal to evidence to support his claim that he suffers from a functional impairment as a result of the accident. In 16-00438 v. The Personal, the Tribunal held that for chronic pain to be more than sequelae from the soft tissue injuries, it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. Even if I were to accept the assessment by Dr. Adedayo that the applicant suffers chronic pain, there is no objective evidence that he has any functional impairment or disability which is a necessary component of the analysis for chronic pain.

25I give weight to the IE reports of Dr. Chaudhry and Dr. Belfon who both concluded that the applicant sustained uncomplicated soft tissue injuries without evidence of significant musculoskeletal or neurological sequela, which is consistent with the CNRs provided from Dr. Adedayo and Dr. Harris. I accept the conclusions in the IE reports that from a physical perspective, the applicant's accident-related injuries are consistent with sprain/strain injuries, which would be considered minor.

26I further find that the applicant has not made any submissions about the criteria in the AMA Guides. However, based on the medical evidence submitted, I find that he does not meet three out of six of the criteria for a chronic pain condition. The applicant has not provided a prescription summary documenting his use of prescription medication or other substances. The applicant does not regularly visit with healthcare practitioners as demonstrated in the CNRs of Dr. Adedayo. Thus, I find that he is not dependent on them. None of the medical information before me suggests that the applicant has deconditioned due to disuse. There is no evidence that the applicant has withdrawn from social milieu or failed to restore to his pre-accident function. While the applicant may have developed psycho-social sequelae, these complaints are minimal, and he never engaged in treatment for those symptoms or made psychological complaints to his family doctor.

27For the reasons outlined above, I find that the applicant has not met his onus of proving on a balance of probabilities that he should be removed from the MIG on the basis of a chronic pain condition.

b. The applicant is not removed from the MIG on the basis of a psychological condition

28I find that the applicant has not demonstrated that he suffers from a psychological condition that would warrant removal from the MIG.

29The applicant submits that he suffers a psychological impairment as a result of the accident. He argues that his psychological symptoms have interfered with his ability to work, sleep and engage socially, and have warranted referral to a pain clinic. He further argues that his complaints are persistent, day-to-day impairments, that clearly justify removal from the MIG.

30The applicant relies upon the IE Psychological Paper Review report of Dr. Douglas Saunders, dated December 11, 2023, which acknowledges that he is "feeling depressed, frustrated and irritable". He claims that while the report concludes that his symptoms do not meet the clinical criteria for impairment, Dr. Saunders fails to address the functional impact of his symptoms, including ongoing disrupted sleep, driving related anxiety, and diminished social engagement.

31The applicant submits that Tribunal decisions have consistently held that diagnostic labels are not determinative in the presence of psychological symptoms. He relies upon the decision in T.S. v. Aviva Geral Insurance Canada, 2018 CanLII 83520 (ON LAT), where the Tribunal emphasized that "a clinical diagnosis is not required to establish impairment; credible evidence of functional limitations is sufficient."

32The respondent submits that the applicant does not meet the clinical threshold for a DSM-V diagnosis. The respondent argues that the applicant has not produced compelling objective evidence by a health practitioner to satisfactorily demonstrate that he suffers from accident-related psychological symptoms, and/or related functional impairments. The respondent relies upon the IE Psychological Assessment report of Dr. Saunders, dated November 6, 2023, and the IE Psychological Paper Review report of Dr. Saunders dated December 11, 2023. Dr. Saunders concluded that the applicant's psychological status was mild accident-related symptoms that did not meet the clinical criteria for accident-related impairment. The respondent submits that the applicant is solely relying on his self-reported psychological complaints as noted in Dr. Saunder's report to illustrate accident-related psychological impairments and has not provided any objective evidence to support his psychological complaints.

33I find that the applicant has not met his evidentiary onus to prove, on a balance of probabilities, that he suffers from a psychological impairment.

34I find that the applicant did not make any psychological complaints to his family physician, Dr. Adedayo, following the accident. I find that there is no mention of any psychological impairments or complaints throughout the CNRs.

35I find that the first indication that the applicant reported psychological complaints was in the Treatment Plan, dated August 28, 2023, recommending a psychological assessment. Under Additional Comments, it notes that the applicant completed a psychological screening measure and provides a provisional diagnosis of an Adjustment Disorder. The treatment plan was denied by the respondent based on the IE Paper Review report of Dr. Saunders, dated December 11, 2023.

36I give weight to the IE reports of Dr. Saunders. In his November 6, 2023 report, he finds that the results of the DSM-V Depression Adult Scale showed a mildly elevated level of depressive symptoms that is consistent with a mild level of depression experience that does not meet clinical criteria for impairment. The results from the Multi-Dimensional Anxiety Questionnaire showed a mild elevation of symptoms that does not meet clinical criteria for impairment. Based on these findings, Dr. Saunders concluded that diagnostically the applicant does not meet the clinical criteria for accident-related impairment from a psychological perspective. He further concluded that from a psychological perspective, there are no essential tasks that the applicant was unable to perform. I find the conclusions of Dr. Saunders persuasive where he completed a review of the available medical documentation, an interview with the applicant and various tests to assess the applicant's symptoms in order to reach his conclusions.

37I further find that while the applicant relies upon the report of Dr. Harris to support that he suffers from psychological impairments, Dr. Harris does not provide a diagnosis or even comment on the applicant's psychological impairments. While he lists the applicant's psychological self-complaints, he does not comment on them when forming his impression or make any recommendation for further assessment or treatment. I find that the applicant has not pointed the Tribunal to any objective evidence of his psychological complaints and is relying solely on his subjective complaints that are not sufficient to warrant removal from the MIG.

38For the reasons outlined above, I find that the applicant has not met his onus of proving on a balance of probabilities that he should be removed from the MIG on the basis of a psychological impairment.

Entitlement to the Treatment Plans in Dispute

39The treatment and assessment plans in dispute propose goods and services that fall outside of the MIG and the $3,500.00 funding limit for a minor injury. As I have found that the applicant sustained a minor injury and is limited to benefits within the MIG and the $3,500.00 funding limit, it is not necessary for me to determine if the treatment plans in dispute are reasonable and necessary.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that no benefits are payable, it follows that no interest is payable.

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 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

42As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

43For the reasons outlined above, I find:

i. The applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury;

ii. The applicant is not entitled to the treatment plans in dispute, nor interest;

iii. The respondent is not liable to pay an award; and

iv. The application is dismissed.