Licence Appeal Tribunal File Number: 24-004927/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:
Tulay Ormangoren
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Francesco Vumbaca, Counsel
Santino Fraietta, Paralegal
For the Respondent:
Emily A. Schatzker, Counsel
HEARD: By way of written submissions
OVERVIEW
1Tulay Ormangoren (“the Applicant”) was involved in an automobile accident on July 9, 2021, and sought benefits from Co-operators General Insurance Company (“the Respondent”) 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 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 section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?
ii. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $226.78 per week for the period from May 20, 2022 to September 30, 2023?
iii. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment, proposed by Princeton Hills Medical Assessments Inc. in a treatment plan/OCF-18 (“plan”) dated February 16, 2022?
iv. Is the Applicant entitled to a medical benefit in the amount of $3,795.50 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a plan dated January 25, 2022?
v. Is the Applicant entitled to a medical benefit in the amount of $3,093.87 for psychological services, proposed by Princeton Hills Medical Assessments Inc. in a plan dated August 2, 2022?
vi. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
vii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The 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 plans in dispute because they propose goods and services which fall outside of the minor injury guideline.
5The Applicant is not entitled to IRBs.
6No interest or award is payable.
BACKGROUND
7The Applicant was the driver of a vehicle which was struck from behind on a major highway. The Applicant was taken by ambulance from the scene of the accident to the hospital where she was examined due to complaints of a headache, and neck and shoulder pain. The Applicant was discharged from the hospital the same day following an examination, which included normal computed tomography (“CT”) of the head and spine, and normal x-rays of the right shoulder and back. She was advised to take Tylenol and Advil as required and to follow up with her family physician.
8To the Applicant, her pain has persisted and has evolved into a chronic pain condition. She also submits that she has developed psychological impairments as a result of the accident. Together, she submits that these injuries are not a minor injury and thus, she should not be subject to the MIG and the $3,500.00 funding limit for a minor injury.
ANALYSIS
Minor Injury Guideline (“MIG”)
9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
10The onus is on the Applicant to demonstrate that she sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
11For the following reasons, I find that the Applicant has not demonstrated that she sustained an injury in the accident that is not included in the minor injury definition.
Psychological injuries
12I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that she suffers from a psychological injury as a result of the accident.
13The Applicant submits that she was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed mood by Dr. I. Gladshteyn, psychologist. She also submits that she reported psychological impairments to her treatment facility, and that she experiences ongoing frustration and emotional distress and increased arguments with her husband as reported to IE assessor Dr. G. Dancyger, psychologist. She submits that this medical evidence indicates that she suffers from psychological impairment as a result of the accident. The Respondent dismisses the Applicant’s claims, noting that she never made subsequent psychological complaints to her treatment facility, and that her psychological assessment report is an outlier compared to the balance of her medical records. It also relies on the IE report of Dr. Dancyger, who concluded that the Applicant had no psychological impairment from the accident.
14I prefer the report of Dr. Dancyger, dated May 2, 2022, over the report of Dr. Gladshteyn, dated August 16, 2022. Dr. Gladshteyn’s assessment was conducted virtually and relies entirely on the Applicant’s self-reported symptoms and issues with no account for the balance of the Applicant’s medical records. Dr. Gladshteyn recorded that the Applicant had marked difficulties with her personal care activities following the accident. But this reporting is at odds with the February 9, 2022 discharge report by the Applicant’s treating physiotherapist, T. Persaurd. Physiotherapist Persaud, after treating the Applicant, reported that the Applicant returned to her previously enjoyed activities and was provided exercises to continue to address any intermittent symptoms. Similarly, Dr. Gladshteyn recorded that the Applicant spends approximately 80% of her day worrying about her finances, health, recovery, family, and driving; feeling hopeless and with indications of suicidal thoughts, ongoing nightmares disrupting her sleep, substantial changes to her concentration and focus following the accident and symptoms of driver, passenger and pedestrian anxiety. However, there are no similar reports in the balance of the Applicant’s medical records. This brings into question the veracity of the Applicant’s reports. Further, Dr. Gladshteyn did not have the benefit of reviewing the Applicant’s medical records, which would have offered an opportunity to clarify the extent of the Applicant’s reported symptoms of severe anxiety, severe depression, severe phobia, and cognitive impairment, that appear no where else in her medical records.
15Aside from Dr. Gladshteyn’s report, the Applicant’s medical record is virtually devoid of any complaints of a psychological nature. The Applicant had early reports of nightmares and flashbacks of the accident but there is no record indicating that the Applicant made any other accident-related psychological complaints thereafter. Experiencing flashbacks and nightmares of an accident, without any subsequent impairment arising from it, is sequalae of a minor injury and falls within the definition of a minor injury.
16I find Dr. Dancyger’s IE report, dated May 2, 2022, to be the most accurate account of the Applicant’s psychological functioning. Dr. Dancyger conducted the assessment in-person and reviewed the Applicant’s medical records, including the clinical notes and records (“CNRs”) from the Applicant’s family physician, Dr. Mankaryous, and concluded that the Dr. Mankaryous never recorded any reports from the Applicant that could be seen as “marked difficulties” in her personal care activities. Psychometric testing conducted by Dr. Dancyger could not be interpreted due to a lack of effort and symptom magnification, which explains the discrepancy with Dr. Gladzshteyn’s testing, which all fell in the severe range, despite being inconsistent with the reports, or lack thereof, in Dr. Mankaryous’ CNRs. Contrary to Dr. Gladshteyn’s report, Dr. Dancyger expressly stated that the Applicant did not appear to be anxious or depressed, and did not report symptoms of a phobia or post-traumatic stress disorder, which is consistent with the balance of her medical record.
17Accordingly, I find that the Applicant has not suffered from an accident-related psychological injury which would preclude her maximal recovery if subject to the MIG and the $3,500.00 funding limit for a minor injury.
Chronic pain condition
18I find that the Applicant has not met her onus to demonstrate on a balance of probabilities that she suffers from a chronic pain condition as a result of the accident.
19Chronic pain conditions are not included in the minor injury definition. To demonstrate that she has a chronic pain condition, the Applicant should provide evidence that her pain causes a functional impairment which adversely affects her well-being, or that she meets the criteria for chronic pain according to the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”). While it is not part of the Schedule, the Tribunal has generally accepted the AMA Guides when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability.
20I find that the Applicant has not demonstrated that she suffers from a functional impairment as a result of the accident. I have reviewed the CNRs from the Applicant’s treatment facility, CBI Health, and conclude they do not demonstrate an ongoing functional impairment. The complaints of neck and back pain, or being stiff and guarded, as highlighted by the Applicant, do not rise to a level that functionally impairs the Applicant.
21I place weight on the CNRs from Dr. Mankaryous, which do not indicate that the Applicant suffers from a chronic pain condition as a result of the accident. On two separate occasions in early 2022, Dr. Mankaryous denied the Applicant’s request for additional care in relation to her accident-related pain, and there is no indication that Dr. Mankaryous’ opinion has changed. On January 17, 2022, the Applicant asked Dr. Mankaryous for an MRI for her back, but Dr. Mankaryous denied the referral because the imaging conducted at the hospital following the accident showed normal results. On February 18, 2022, Dr. Mankaryous denied the Applicant’s request for a referral to a chronic pain specialist because her accident-related pain was controlled with medication and physiotherapy.
22Additionally, the Applicant has had few visits with Dr. Mankaryous regarding accident-related pain, and she has not been referred to any specialists for accident-related pain treatment. The Applicant has met with Dr. Mankaryous only once for a pain-related issue since the February 18, 2022 visit – on November 24, 2022 she complained of low back pain radiating into her hip. Dr. Mankaryous’ CNRs include no other complaints of pain, other than a walk-in clinic visit on September 10, 2024, where the Applicant complained of pain and was referred for x-rays, which were unremarkable.
23Additionally, I find that the Applicant has not demonstrated that she meets the criteria for a chronic pain condition according to the AMA Guides. As I will discuss further, the Applicant returned to work following the accident and is thus not withdrawing from social and milieu. The Applicant has never reported any psychological issues to her family physician, is not taking any psychotropic medication, nor has Dr. Mankaryous referred her to any specialists on the issue. Her nearly two-year gap in pain complaints to Dr. Mankaryous between November 2022 and September 10, 2024 indicates that she is not excessively dependent on her healthcare provider. None of the physical assessments indicate that the Applicant is physically deconditioning due to disuse. No healthcare provider has commented that her use of prescription medication is excessive, and it doesn’t appear to be so. Lastly, some reduced range of motion (“ROM”) in the back, as reported in the November 2022 visit, is not akin to a failure to restore pre-accident function.
24Having concluded on a balance of probabilities that the Applicant does not suffer from an accident-related psychological impairment, or a chronic pain condition, it follows that I find that the Applicant sustained a minor injury as a result of the accident.
The Applicant is not entitled to the treatment and assessment plans in dispute
25The plans in dispute propose goods and services that fall outside the MIG. Having found that the Applicant is subject to the MIG, it follows that she is not entitled to the plans in dispute.
Income Replacement Benefits (“IRBs”)
26I find that the Applicant has not met her onus to demonstrate that she suffers a substantial inability to complete the essential tasks of her employment.
27Pursuant to section 5 of the Schedule, IRBs are payable to insured persons who, within the first 104 weeks following the accident, are substantially unable to perform the essential tasks of their pre-accident employment as a result of an impairment. The test for entitlement becomes more difficult after 104 weeks following the accident and asks whether the insured person suffers a complete inability to engage in employment or self-employment for which they are reasonably suited by education, training, or experience.
28I draw an adverse inference with respect to the Applicant’s employment file and her updated employment insurance (“EI”) file, because she never produced them for this hearing. The Applicant was ordered by the Tribunal, on consent, to provide her employment file and her updated EI file for this hearing, but never did. Both files would confirm or deny the Applicant’s time away from work, and the reasons for the absence. Having failed to provide the information as ordered and that she agreed to produce, I infer that the employment and EI files include information that is detrimental to the Applicant’s case.
29The Applicant was on parental leave at the time of the accident and received Ei benefits related to her leave. An updated EI file would confirm the end of the Applicant’s EI claim, and whether in encroaches into her period of claim. Similarly, the Applicant’s employment file would clarify the essential tasks of her employment and confirm the day she returned to work, and whether she sought medical leave in relation to the accident.
30Dr. Mankaryous’ CNRs are not indicative that the Applicant is unable to complete the essential tasks of her employment as a teaching assistance at a Montessori school. At no point does Dr. Mankaryous suggest or insinuate that the Applicant is disabled from working, nor does the Applicant request time away from work, due to accident-related impairments. This is unlike when the Applicant was pregnant and requested time off work for fear of taking public transit during the pandemic, which Dr. Mankaryous obliged. The fact that during the pandemic the Applicant asked or and received accommodation from Dr. Mankaryous, but never sought same following the accident supports a finding that she is not impaired from completing her essential tasks of employment.
31The key documents that the Applicant relies on, the OCF-3 dated January 25, 2022, and her 2022 notice of assessment from Revenue Canada, do not demonstrate that the Applicant suffers a substantial inability to complete her essential tasks of employment as a result of the accident. The OCF-3 by Dr. K. Khoshmashrab, chiropractor, dated January 25, 2022, holds virtually no weight. The OCF-3 was produced following the chiropractor’s initial assessment with the Applicant and it includes no information on the Applicant’s essential tasks of employment, nor does the document list the Applicant’s impairments, other than to note that she sustained sprain and strain injuries to her neck, shoulders, back, and hips. Moreover, the CNRs from Dr. Khoshmashrab’s clinic do not include any information on the Applicant’s employment, her essential tasks of employment, and the connection between an inability to complete those tasks and the Applicant’s injuries. Similarly, the Applicant’s notice of assessment does not demonstrate that she is impaired from working. The document addresses income reported, not whether the Applicant suffers an impairment that prevents her from completing her essential tasks.
32I do not need to address the Respondent’s arguments regarding misrepresentation. In its submissions, the Respondent argued that the Applicant is not entitled to any additional IRBs on account of a misrepresentation of her address when applying for her auto insurance policy. However, the Applicant did not meet her onus to demonstrate entitlement to IRBs. It is unnecessary for me to address these arguments in light of my findings above.
33Having not presented evidence to support her claim that she is unable to complete the essential tasks of her employment as a teaching assistant at a Montessori school, it follows that, on a balance of probabilities, the Applicant has not met her onus to demonstrate entitlement to IRBs for the period claimed.
Interest
34Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having concluded that no benefits are payable, it follows that no payments went overdue and that no interest is payable.
Award
35The Applicant sought an award under section 10 of Regulation 664. Under section 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.
36The Applicant claims an award primarily on the bases that the Respondent ought to have adjusted her claim in favour of a finding that her injuries fall outside of the definition of a minor injury and that she is entitled to IRBs. Having concluded that the Applicant sustained a minor injury and is not entitled to IRBs, it follows that I find that no benefits were unreasonably withheld or delayed. According, I find no award payable.
CONCLUSION AND ORDER
37The 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.
38The Applicant is not entitled to the plans in dispute because they propose goods and services which fall outside of the Minor Injury Guideline.
39The Applicant is not entitled to IRBs.
40No interest or award is payable.
Released: January 16, 2026
Brian Norris
Adjudicator