Licence Appeal Tribunal File Number: 24-001998/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:
Maryann Pinnock
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gordon Stencell
APPEARANCES:
For the Applicant:
Yousef Jabbour, Counsel
For the Respondent:
Dominique George, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Maryann Pinnock, the Applicant, was involved in an automobile accident on May 10, 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, The Dominion of Canada General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The Applicant is not a licensed driver and was a pedestrian progressing through a crosswalk when struck by a motor vehicle.
ISSUES
3The 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the Applicant entitled to $2,680.00 for an orthopedic assessment, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated February 15, 2022?
iii. Is the Applicant entitled to $2,460.00 for psychological services, proposed by Complete Rehab Centre in a plan dated April 18, 2022?
iv. Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?
v. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that:
i. The Applicant’s accident-related impairments do not warrant removal from the 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 Respondent is not liable to pay an award under s. 10 of Reg. 664; and
iv. As no benefits are payable, the Applicant is not entitled to interest.
ANALYSIS
The Minor Injury Guideline
5I find that the Applicant has not demonstrated, on the balance of probabilities, that she suffers from an injury or condition that warrants removal from the MIG.
6An 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.
7The Applicant submits that she requires treatment beyond the MIG because she has a documented pre‑existing condition, mechanical back pain, that precludes maximal recovery within the MIG. She further submits that she suffers from chronic pain that results in functional impairment and psychological symptoms.
Pre-existing Condition
8I find that the Applicant has failed to prove, on a balance of probabilities, that she had a pre-existing condition that would prevent achieving maximal recovery from the accident-related minor injuries, if treated within the MIG.
9In order to be removed from the MIG limits based on a pre-existing condition, pursuant to s. 18(2) of the Schedule, the Applicant must provide compelling evidence, documented before the accident, from her health practitioner that she had a pre-existing medical condition that will prevent her achieving maximal recovery from her minor injuries if subject to the MIG limit.
10I find that although the Applicant had a pre-existing condition, mechanical back pain, there is little evidence to support that any pre-existing condition prevented the Applicant from achieving maximum medical recovery from her accident-related injuries.
11The Applicant points me to the s. 25 report dated April 4, 2022, completed by Dr. Michael West, orthopedic specialist. Dr. West noted that, “Ms. Pinnock requires ongoing treatment and rehabilitation in order to achieve maximum medical recovery. These treatment modalities will far exceed the $3500 under the MIG.” The Applicant therefore argues that she should be removed from the MIG based on her pre-existing medical condition that was exacerbated as a result of the accident.
12The Respondent argues the Applicant does not rely on any medical opinion that states that the Applicant would be prevented from reaching maximal medical recovery within the MIG as a result of pre-existing impairments. I agree with the Respondent. The applicant has not directed me to any such opinion from a treating doctor.
13I find, pursuant to s. 18(2) of the Schedule, the Applicant has not met her burden to provide compelling evidence, documented before the accident, from a health practitioner that she had a pre-existing medical condition that will prevent her achieving maximal recovery from her minor injuries if subject to the MIG limit.
Psychological Impairment
14The Applicant has not satisfied her burden to prove that she suffers from a psychological condition that warrants removal from the MIG.
15The Applicant submits she should be removed from the MIG due to psychological injuries. The Applicant relies on a s. 25 psychological assessment by Sandeep Kaur, a psychotherapist, under the supervision of Dr. Sedigheh Naisi, a psychologist, the Applicant underwent on April 4, 2022. The resulting psychological report is dated April 18, 2022. According to that report, the Applicant was diagnosed with: major depressive disorder, specific phobia – situational type (motor vehicles), and somatic pain disorder, with predominant pain, persistent.
16As part of the psychological assessment, a variety of tests were completed by the Applicant. On the PCL-5 PTSD checklist, the Applicant obtained an overall score of 29. The assessor offered no interpretation of this score. In the Beck Anxiety Inventory, she obtained a score which indicated “severe” anxiety. In the Beck Depression Inventory-2, the Applicant obtained a score which indicated “severe” depression. On the Pain Patient Profile, her profile suggests that she considers her pain to be serious. The M-FAST test score indicates the information gathered from the interview is likely valid and an accurate reflection of her current condition.
17The Respondent submits that the overall inconsistent reporting by the Applicant to her assessors on her functional abilities, together with the lack of medical documentation to support her psychological injuries or need for associated treatment, leads to a determination that there has been no psychological impairment sustained to remove her from the MIG.
18The Respondent argues the s. 25 psychological assessors did not rely on any medical records, only the Applicant’s self-reporting, and that a psychotherapist under supervision is not as qualified to make a diagnosis, in contrast to the s. 44 psychological assessor, a psychologist. Therefore, the Respondent argues because of these points together, the s. 25 psychological assessment should be given less weight.
19The Respondent also argues that the Applicant’s self-reporting for the s. 25 psychological report is inconsistent with her self-reporting in the s. 25 orthopedic assessment report, the s. 44 orthopedic assessment, and the s. 44 psychological assessment the Applicant underwent on June 2, 2022.
20I note the Respondent’s submissions that in the s. 25 assessment conducted by Sandeep Kaur, a psychotherapist, there is no indication in the report who made the determinations and diagnosis, or which of the two assessors provided recommendations. I further agree with the respondent that a psychotherapist is not qualified to make a psychological diagnosis. In contrast, the s. 44 assessment determinations were made by the same individual, Dr. Rakesh Ratti, psychologist, who observed and interacted with the Applicant. For this reason, I prefer the evidence of Dr. Ratti.
21Dr. Ratti concluded the Applicant did not meet the criteria for mental health diagnosis in relation to the motor vehicle accident (“MVA”). I agree with the Respondent that the s. 25 psychological assessment is inconsistent with the other s. 25 assessment, that the Applicant attended on the same date, and with the other s. 44 assessments. In all but one of the assessments, the Applicant reported being quite independent in her activities and experiencing little impairment. The Applicant also reported to Dr. Ratti that post-accident she continues to complete pre-accident daily tasks, is independent for self-care, has a normal social life, and her memory and concentration are intact. The Applicant feels mild anxiety as a passenger and as a pedestrian but, “…she does not limit herself and crosses streets by herself.”
22The Applicant has further not directed me to any evidence that her treating physician recommended psychological treatment, nor to CNRs where she reported psychological symptoms post-MVA.
23I find that other than the s. 25 report, the Applicant has not led evidence corroborating she sustained a psychological impairment as a result of the accident. I find the Applicant has not met her burden of proof that she suffers from a psychological injury or condition that warrants removal from the MIG.
Chronic Pain
24The Applicant has not satisfied her burden to prove that she suffers from chronic pain that warrants removal from the MIG.
25Chronic 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 her to seek treatment beyond the $3,500.00 funding limit provided by the MIG.
26Although not part of the Schedule, the Tribunal has often cited 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. Though the Applicant references the AMA Guides she did not make submissions on which criteria are met.
27The Applicant references chronic pain with impairments that interferes with her everyday activities. The Applicant submits she sustained chronic pain resulting from the accident that prevents her from recovering within the MIG funding limit. The Applicant relies on the CNRs of the family doctor, Dr. Ghesquiere as evidence the pain the Applicant has experienced resulting from the MVA has persisted longer than 3 to 6 months since the accident, which meets the duration of chronic pain. I considered the reconsideration decision of T.S v. Aviva General Insurance Canada, 2020 CanLII 51295 (ON LAT) referenced by the Applicant.
28The Applicant further relies on the s. 25 orthopedic assessment by Dr. Michael West, orthopedic surgeon, the Applicant underwent on April 4, 2022. The resulting orthopedic report is dated April 4, 2022. The Applicant submits that Dr. West opined that based on the Applicant’s injuries, she should not fall under the MIG. The Applicant submits that her pain has interfered with functional abilities as she has not been able to return to her pre-accident activities since the MVA.
29The Respondent disagrees that the Applicant should be removed from the MIG on a basis of chronic pain. The Respondent submits the Applicant has not been diagnosed with chronic pain, there is no mention of chronic pain in any of the Applicant’s CNRs, the Applicant has not proven that she suffers from at least three of the criteria of the AMA Guidelines, and the Applicant returned to a physically demanding job only one week after the accident and continues to largely perform her activities of daily living. The Respondent also submits the Applicant only had sporadic visits with her family physician with lengthy gaps between visits.
30I weighed the evidence before me, referenced above, the s. 25 orthopedic report dated April 4, 2022, that the Applicant has ongoing pain and should be removed from the MIG. While there is some self-reported evidence before me, there is no evidence before me that there has been changes to the Applicant’s participation in social, employment, and physical health activities resulting from the MVA. There is also self-reported evidence before me to the contrary. I agree with the Respondent that the Applicant returned to her physically demanding job as an apple packer a week post-accident.
31Based 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 her burden of proof to establish that she sustained anything more than a minor injury as a result of the accident.
The Applicant is not entitled to the treatment and assessment plans in dispute
32The 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.
Interest
33Interest applies on the payment of any overdue benefits pursuant to s. 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
34The Applicant requests an award under s. 10 of O. Reg. 664/90. An award is discretionary and requires proof that the insurer’s withholding or delay was unreasonable, not merely that benefits were disputed. Here, I have determined that the disputed benefits are not payable and that the Respondent acted on the basis of insurer examinations and the available record. In these circumstances, the s. 10 threshold is not met. The request for an award is denied.
ORDER
35For the reasons above, I order the following:
i. The Applicant’s accident-related impairments do not warrant removal from the 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 Respondent is not liable to pay an award under s. 10 of Reg. 664.
iv. As no benefits are payable, the Applicant is not entitled to interest;
v. The application is dismissed.
Released: May 4, 2026
Gordon Stencell
Adjudicator