Citation: Kelly v. Jevco Insurance Company, 2026 ONLAT 24-006629/AABS

Licence Appeal Tribunal File Number: 24-006629/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:

Adrian Kelly

Applicant

and

Jevco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Yanick Charbonneau

APPEARANCES:

For the Applicant:

Ardi Deti, Paralegal

For the Respondent:

Gurpreet Singh, Counsel

HEARD: In Writing

OVERVIEW

1Adrian Kelly, the applicant, was involved in an automobile accident on November 28, 2021, 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, Jevco 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 limit (“MIG”)?

ii. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, by Mississauga Rehabilitation & Sports Injury Clinic in a treatment plan / OCF-18 (“plan”) dated October 11, 2022?

iii. Is the applicant entitled to $2,144.93 for a psychological assessment, proposed by Pilowsky Psychological Professional Corporation in a plan dated May 17, 2022?

iv. Is the applicant entitled to $2,960.25 for psychological services, proposed by Pilowsky Psychological Professional Corporation in a plan dated November 30, 2022?

v. Is the applicant entitled to $3,000.06 for chiropractic services, proposed by Advanced Spine Centre in a plan dated June 11, 2022?

vi. Is the applicant entitled to $1,472.72 for chiropractic services, proposed by Advanced Spine Centre in a plan dated July 28, 2022?

vii. Is the applicant entitled to $15,322.73 for a chronic pain treatment, proposed by Mississauga Rehabilitation & Sports Injury Clinic in a plan dated April 27, 2023?

viii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant’s impairments are predominantly minor as defined by the Schedule and subject to the treatment limits of the MIG.

4As the MIG limit on medical benefits has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.

5As no benefits are owing, no interest is payable.

ANALYSIS

MINOR INJURY GUIDELINE

6The MIG establishes a framework to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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.” The terms, “strain”, “sprain”, “subluxation”, and “whiplash associated disorder” are defined in the Schedule.

7Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they demonstrate that they have a pre-existing condition, documented by a medical practitioner, that prevents maximal medical recovery under the MIG or if they provide evidence demonstrating that their injuries are not included in the minor injury definition. Further, the Tribunal has found that evidence of chronic pain that causes functional impairment justifies removal from the MIG.

8The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG.

9The applicant submits that his accident-related injuries fall outside of the minor injury definition, on the basis of two grounds: that he was diagnosed with a psychological disorder, that is Generalized Anxiety Disorder (or GAD), and that he suffers from a chronic pain condition with central sensitization.

Did the Applicant sustain a psychological impairment that would remove him from the MIG?

10I find that the applicant has not led any evidence that he has sustained a psychological impairment that would remove him from the MIG.

11The applicant submits that the diagnosis of GAD by his family doctor, Dr. V. Odu, was significant enough to warrant a formal diagnosis and an intervention by a mental health team at Humber Hospital. In support of his position, the applicant relies upon the clinical notes and records (“CNRs”) of his family doctor, Dr. Odu, his referral to Humber River Hospital, and the psychological report dated October 24, 2022, from Drs. Pilowski and Sagrati, Psychologists.

12The respondent submits that the applicant has misrepresented that he had attended or completed psychological counselling at Humber, given that Humber’s records show that the applicant was discharged from a group meeting, that he had not attended 4 out of 4 sessions, and that no psychological diagnosis of the applicant stemmed from the group sessions. Further, the respondent submits that the applicant’s GP, Dr. Odu, has only diagnosed the applicant with anxiety, rather than GAD. The respondent also argues that the applicant’s s.25 reports of Dr. Ogilvie-Harris and Dr. Pilowski are unreliable, because these are not corroborated by his GP, or treating specialists’ medical records, for a psychological impairment attributable to the accident.

13For the following reasons, I am not convinced that the applicant has sustained a psychological impairment as a result of the accident, which would warrant that he be removed from the MIG.

14Firstly, I find that the applicant’s family doctor, Dr. Odu, consistently notes that the applicant’s mental health is stable. Indeed, no specific prescription / medication was contemplated by Dr. Odu. Although the applicant had been referred to group counselling for his anxiety, Dr. Odu’s referral does not state that he was referred to Humber for a psychological diagnosis, or for individual therapy.

15To this point, the applicant has not filed his prescription records, an OHIP summary, or prescription summaries from one year pre-accident to date, and no records of any treating psychiatrists, and specifically for individual counselling, have been filed.

16Further, I also find that Dr. Odu’s annotations regarding the applicant’s mental state examination (as reported at page 71 of their CNRs), indicate that the applicant is referred for anxiety, and that he has normal cognition, having displayed good insight, and normal thought form. Otherwise, the annotations dated January 10, 2022, document no apparent distress, and mental health was noted as stable; and yet again, on January 31, and February 2, 2022, about 2 months post-accident, his mental health was noted as stable.

17I also note the discrepancies between the applicant’s assertions that he had been referred by Dr. Odu, and that he did receive a psychological diagnosis and psychological treatments, whereas the discharge report from the program for Coping and Accepting Strong Emotions (or “CASE” program) at Humber Hospital, merely confirms that he had, in fact, been referred for group counselling, and that he did not attend any of the 4 booked sessions, which he had been expected to attend.

18Finally, I also find that the applicants psychological report dated October 24, 2022, conducted by Drs. Pilowsky and Sagrati, Psychologists, is not persuasive, not only because it was conducted nearly a year post-accident, but also because, in my view, it does not find support in the evidence discussed above, which shows that the applicants mental health was noted by Dr. Odu as stable, aside from one annotation of anxiety. To be clear, there are no medical records from his family Doctor, Dr. Odu, or a treating psychiatrist or psychologist, which link the applicant`s psychological complaints of anxiety to the accident.

19In view of the applicant’s inaccurate submissions that he had been diagnosed following a psychological treatment at Humber Hospital, that the applicant did not follow up for individual or group therapy with a psychiatrist or other mental health professional, and in view, also, that his own GP, Dr. Odu indicated consistently in their CNRS that the applicant’s mental health is stable, I find that the applicant has failed to demonstrate that he has sustained a psychological impairment or disorder from the accident.

20As a result, on a balance of probabilities, I find that the applicant has failed to establish that he sustained a psychological impairment as a result of the accident, that would warrant removal from the MIG.

Did the Applicant develop Chronic Pain as a result of the Accident?

21I find that the applicant has not met his onus of establishing chronic pain of the duration, severity and functionally disabling nature, necessary to remove him from the MIG.

22The applicant submits that the respondent failed to consider the chronicity of his complaints regarding his cervical, lumbar spine and right wrist. He submits that his injuries evolved into a chronic pain condition with central sensitization, not encompassed within the MIG.

23The respondent submits that the applicant was diagnosed with motor vehicle accident (“MVA”) strains by Dr. Odu, on January 10, 2022 and that since then, he has had minimal engagement with his family doctor Dr. Odu, and no diagnostic imaging was ordered. Further, the respondent argues that the applicant has failed to submit documents from the specialists and rehabilitation providers, as ordered in the Case Conference Report and Order (“CCRO”) dated October 2, 2024; therefore, an adverse inference should be drawn. It also argues that surveillance evidence has shown that the applicant has been able to bend and lift objects, and that he had, in fact, been identified as having attended the work premises. Finally, the respondent’s Insurer Examination (“IE”) assessors Dr. Hanna, GP, per an assessment dated June 29, 2022, and Dr. Choi, GP, per assessments dated August 31, 2022, November 14, 2022, and August 16, 2023, both opined that the applicant’s injuries were soft tissue impairments falling within the MIG.

24As discussed above, the respondent also argues that the applicant’s own IE report of Dr. Ogilvie-Harris, Orthopaedic Surgeon, is unreliable, because it is not based on objective evidence.

25I agree with the respondent. I find that the applicant’s back, neck and wrist injuries are treatable within the MIG. In support of this finding, I refer to the CNRs of Dr. Odu. From the onset, the applicant has been diagnosed with “MVA strain” by Dr. Odu, on January 10, 2022. Dr. Odu did not refer him for imaging. Applicant’s musculoskeletal examination revealed normal movement; with spine movements reported as within “normal range of motion (of) upper and lower extremities”.

26Further, on January 31, 2022, and again, on February 16, 2022, the applicant’s head and neck are said to be “normal”. A Physician’s Statement signed by Dr. Odu on April 5, 2022 does refer the applicant to a chiropractor, with a diagnosis of physical limitations post-accident. Further, on April 4, 2022, the applicant had reported wrist pain for the first time; Dr. Odu also indicates that his head and neck are normal. Again, on June 15, 2022, upon noting the complaints of neck and back pain, Dr. Odu refers the applicant for a Pain Management Consult; however, Dr. Odu indicates that the applicant’s system is stable.

27Although the applicant was also referred for chiropractic treatment by Dr. Odu, the medical records of the chiropractor, if any, were not filed by the applicant, notwithstanding the provisions of the CCRO dated October 2, 2024. As a result, I do not have access to any progress reports or medical records from the treating chiropractor, or a physiotherapist, from which to gather an understanding of the applicant’s prognosis for recovery.

28With regard to Dr. Odu’s annotation that the applicant has sustained chronic pain, I find that it is not persuasive. In my view, Dr. Odus opinion is based on the applicants ongoing reports of pain to his neck, back, and wrist. There is little insight offered on the examinations conducted by Dr. Odu in support of their diagnosis of chronic pain. Further, there is only an annotation for lower back pain, under the hearing of the “physical examination findings”, for neck and back pain. It is the only mention of chronic pain referenced in the CNRs of Dr. Odu.

29In sum, although I recognize that the applicant has reported ongoing pain to his back, neck and left wrist, I find that he has failed to adduce medical records, or a Doctor’s diagnosis, which establish on the balance of probabilities, that the ongoing pain and impairments sustained by the applicant rise to the level of chronic pain with a functional impairment.

30The Tribunal has often used the American Medical Association’s Guides (“AMA Guides”) chronic pain criteria as an assistive tool to evaluate chronic pain complaints where there is no established diagnosis of chronic pain. An applicant must fulfill at least three of the six criteria to be found to have chronic pain syndrome, and these criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contacts.

v. 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.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors

31The respondent further submits that the applicant must establish that three of six criteria set out in the AMA Guides are satisfied to be removed from the MIG. It submits that the applicant satisfied none of the criteria of AMA. The applicant draws from the conclusions of Dr. Ogilvie-Harris, who opined that the applicant’s injuries “evolved into a chronic pain with central sensitization, not encompassed within the MIG”. Further, he also submits that the applicant meets five of the six criteria for a chronic pain syndrome per AMA Guidelines.

32To this point, I afford little weight to the October 30, 2022 Orthopedic report of Dr. Ogilvie-Harris, Orthopaedic Surgeon, where they opined that the applicant has sustained a chronic pain condition with central sensitization.

33First, I find that Dr. Ogilvie-Harris’ report offers a guarded prognosis of chronic pain condition with central sensitization, because Dr. Ogilvie-Harris’ conclusions are subject to further investigations / MRI of the right wrist “to detect significant pathology”. To the same effect, in Dr. Ogilvie-Harris’ own words, in looking for a pathology that would account for the applicant’s symptoms, “his ongoing pain to his back and neck has not been investigated”.

34As it relates to the clinical analysis of the application’s restrictions, I find that Dr. Ogilvie-Harris’ analysis / opinion does not engage meaningfully with the AMA Guide criteria. To be clear, only the AMA criteria are referenced, with boxes ticked for an assessment, but the connection to any supporting evidence is not made clear in a way of providing an understanding of the applicant’s restrictions and limitations in connection with the AMA Guide criteria.

35Dr. Ogilvie-Harris opined that the applicant’s condition is, to a greater extent, related to psychosocial limitations. However, as I have discussed above, the applicant’s mental health has been noted as stable by Dr. Odu, and the applicant was discharged from his group session counselling at Humber, with no diagnosis of psychological disorder. In sum, I find that Dr. Ogilvie-Harris’ conclusion that the applicant has sustained psychosocial limitations is not corroborated by the medical evidence on file such as the CNRs of GP Dr. Odu. Further, as I have noted before, the applicant has not filed his prescription records or OHIP summary.

36In applying the AMA Guide criteria, I also find that the applicant has not lead evidence that he is dependant on prescription drugs, that he is excessively dependant on health care providers, or other individuals, or that he has withdrawn from social milieu, including work, recreation, or other social contacts. In further alignment with Dr. Odu’s CNRs and the surveillance evidence, there is no evidence of secondary physical deconditioning due to disuse and / or fear evidence of physical activity due to pain, or, for that matter, that the physical capacity of the applicant is insufficient to pursue work, family, or recreational needs.

37I also note that the applicant has not disputed surveillance evidence, which shows him driving, staying at a construction zone of his employer’s for more than 4 hours, and bending or carrying groceries, tools, or kneeling and bending to undertake what appears to be some inspection work under his car.

38Considering that the applicant is seen carrying tools, spending time at the employer`s premises, and that the surveillance evidence was not called into question by the applicant, I find that, on balance, the activities the applicant is seen undertaking measure up with the fact that, even if the applicant has lingering pain, he has not been diagnosed with mobility issues, or restrictions by Dr. Odu. In other words, he does not have functional impairment as a result of the pain that would justify removal from the MIG.

39As a result, on a balance of probabilities, I find that the applicant has failed to establish that he suffers from chronic pain as a result of the accident, that would warrant removal from the MIG.

40As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the treatment plans in dispute.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

42As no benefits are overdue, no interest is payable under s.51.

ORDER

43For the reasons outlined above, I find that:

i. The applicant’s injuries fall within the Minor Injury Guideline.

ii. The applicant is not entitled to the disputed treatment plans.

iii. The applicant is not entitled to interest.