Licence Appeal Tribunal File Number: 24-015111/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:
Victoria Adetoro-Ojo
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Nav Krishnan, Counsel
For the Respondent:
Mark Esteireiro, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Victoria Adetoro-Ojo, the applicant, was involved in an automobile accident on November 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, Intact 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 section 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 a non-earner benefit (“NEB”) of $185.00 per week from August 25, 2023 to date and ongoing?
iii. Is the applicant entitled to $3,919.58 for physiotherapy services, proposed by Alma Rehab Inc. in a plan dated August 31, 2023?
iv. Is the applicant entitled to $2,460.00 for psychological services, proposed by HydHealth Evaluations Inc. in a plan dated July 18, 2023?
v. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by HydHealth Evaluations Inc. in a plan dated February 5, 2024?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is subject to the MIG.
4The applicant is not entitled to a NEB of $185.00 per week from August 25, 2023 to date and ongoing.
5As there are no overdue benefits, the applicant is not entitled to interest.
ANALYSIS
Application of the Minor Injury Guideline
6I find the applicant’s injuries are predominantly minor injuries subject to treatment within 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 of subluxation and includes any clinically associated sequelae to such an injury.”
8The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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 her accident-related injuries include chronic leg, knee and back pains with headaches. The applicant submits she should be removed from the MIG on the grounds of chronic pain and reduced functional abilities, psychological difficulties, and pre-existing injuries that prevent maximal recovery.
Does the applicant have chronic pain with a functional impairment?
10I find the applicant has not demonstrated that she suffers from a chronic pain condition with a functional impairment that would warrant removal from the MIG.
11The applicant submits she should be removed from the MIG because she suffers chronic pain with a functional impairment. The applicant relies on the OCF-3 Disability Certificate dated February 1, 2023, prepared by Dr. Amrit Sanghera, chiropractor, the clinical notes and records (“CNRs”) of Dr. Ikhimhiagie Felix Asekombe, family physician, the CNRs of Dr. Nayyar Razvi, physician. The applicant also relies on parts of the section 44 independent general practitioner examination and independent general practitioner paper review, both dated October 6, 2023, and both prepared by Dr. James Stewart, physician.
12The OCF-3 dated February 1, 2023, completed by Dr. Sanghera, chiropractor, states the applicant suffers a complete inability to carry on a normal life and that the applicant returned to work with pain. Dr. Sanghera notes the applicant’s recovery period is 9 – 12 weeks.
13Dr. Asekombe’s CNRs note on January 26, 2023 the applicant was “struck on the left leg by a car while on the picket line, no fall”, and that she is having pain in her leg, and pain at night. On January 30, 2023 the applicant returned with complaints of back and leg sprain and the majority of her appointment was focussed on diabetes management, healthy lifestyle and dietary changes, explanation on the use of a glucometer and various exercises she could attempt including walking, cycling, dancing, and weighted workouts. In 2023 she visited the doctor’s office in March, May, June, July with no accident-related complaints regarding her back or her leg; however, on November 9, 2023 she returned and complained of back and leg pains. The family doctor prescribed massage and physiotherapy each time she complained of pain. Although the family doctor’s CNRs note that the applicant had ongoing accident-related pain in her back and leg, there is no discussion of functional limitations as a result.
14I also note the applicant was referred to NeuPath Centre for Pain and Spine. Dr. Razvi, physician, notes on May 17, 2024, “SA2 Patients with mild systemic disease. No functional limitations; has a well-controlled disease of one body system.” Dr. Razvi prescribed Cymbalta for the applicant’s daily use.
15I find the CNRs of the family doctor and the CNRs of Dr. Razvi do not support that she should be removed from the MIG due to chronic pain with a functional impairment; although there are complaints of ongoing pain there are no notes indicating that the applicant was diagnosed with chronic pain or that she sustained a functional impairment affecting her personal or professional life.
16The applicant states that she meets criteria iii), iv), v) and vi) of the American Medical Association’s Guides to Evaluation of Permanent Impairment, 6^th^ Edition (“AMA Guides”). At least three of the six criteria listed below must be met to support a diagnosis of chronic pain according to the AMA Guides. I accept the AMA Guides to be a useful interpretative tool for assessing chronic pain claims in the absence of a diagnosis, and that the AMA Guides are not binding on this Tribunal.
17In support of her claim, the applicant relies on parts of Dr. Stewart’s section 44 general practitioner’s report dated October 23, 2023, and the OCF-18 dated June 23, 2023, prepared by Dr. Erin Langis, psychologist. The six criteria of the AMA Guides 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 the social milieu, including work, recreation, or other social contacts.
v. Failure to restore to 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 behaviours.
18The applicant argues that she has a reduced capacity for social engagement especially with her grandchildren, she requires assistance from her children, she does not do housekeeping, her injuries prevent her from performing necessary work tasks, that she is on modified duties at work, and that the ongoing pain has reduced her endurance and stamina. However, I am not directed to evidence from her employer, her family doctor, or another other independent medical practitioner in support of this claim.
19I am not persuaded the applicant’s secondary physical deconditioning is due to her accident-related pain, specifically because a short time after her accident the family doctor noted a variety of activities, such as cycling, dancing and weight resistance, that she can and should potentially engage in. In my view, her family doctor is more focussed on her dietary and lifestyle changes, including her diabetes management, and there is no mention of her not being able to restore her pre-injury function in pursuit of her work, family or recreational activities.
20As noted above, the applicant has not directed me to evidence in support of her withdrawal from work or social milieu. I was not directed to work-related modifications in her duties or scheduling. In fact, the OCF-3 notes the applicant returned to work, albeit with pain, after the accident.
21The respondent submits the applicant’s pain is not continuous or of such severity that it causes distress accompanied by a functional impairment and she has not provided compelling evidence to support her claims. The respondent relies on the family doctor’s CNRs, the section 44 report prepared by Dr. Stewart, the CNRs of Dr. Razvi, the Tribunal’s decision in 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT), and the OCF-1 dated January 24, 2024.
22Dr. Stewart’s section 44 report dated October 6, 2023 notes the applicant sustained a minor and uncomplicated left shin contusion, with no ongoing injury or impairment and that her back and neck complaints are not caused by the subject accident. Similarly, Dr. Stewart’s section 44 paper-review report dated March 6, 2024 notes her accident-related injury would not have resulted in any impairment or disability.
23I am not persuaded the applicant has chronic pain in her back and leg as a result of the accident; Also, I am not persuaded the applicant has a functional limitation as a result of the ongoing back and leg pain that warrants removal from the MIG because there is no reference to any functional limitations as a result of ongoing pain in the records.
24I find on a balance of probabilities that the applicant does not have chronic pain and the applicant has not established that she has a functional impairment. I find the applicant has not met her evidentiary onus to prove that she suffers from chronic pain with a functional impairment that warrants removal from the MIG.
Does the applicant have a psychological impairment?
25I find the applicant has not met her burden to prove that she suffers from a psychological impairment that warrants removal from the MIG.
26To establish accident-related psychological impairments, the applicant relies on the OCF-3, the OCF-18 dated June 23, 2023, prepared by Dr. Langis, and parts of the section 44 psychological examination report dated October 6, 2023, prepared by Dr. Douglas Saunders, clinical psychologist.
27Dr. Langis notes in the OCF-18 Additional Comments section that the applicant needs psychological assistance based on a brief discussion and the applicant’s self-reported complaints. Dr. Langis diagnosed the applicant with persistent somatic symptom disorder with predominant pain, adjustment disorder with mixed anxiety and depressed mood as well as specific phobia: situational type: vehicular related. I am not directed to any objective testing in support of Dr. Langis diagnosis.
28I find the applicant’s self-reports about her psychological symptoms are not supported by contemporaneous records. Other than the Additional Comments in the OCF-18, the applicant did not make any complaints about any psychological symptoms to her family doctor. For this reason, I give Dr. Langis’ Additional Comments in the OCF-18 little weight.
29The respondent relies on the section 44 psychological examination report dated October 6, 2023, prepared by Dr. Douglas Saunders, clinical psychologist, that includes a clinical interview, review of medical documents and administration of psychometric tests to conclude there is no evidence of any concurrent or pre-existing psychological condition. I give weight to this report because as a psychologist, Dr. Saunders is qualified to give this opinion and because he met with the applicant, reviewed her medical records and administered testing before rendering his opinion.
30I find on a balance of probabilities that the applicant has not met her burden to establish that she has a psychological impairment that would warrant removal from the MIG. I find that the section 44 report prepared by Dr. Saunders establishes that the applicant does not have an ongoing psychological impairment that requires treatment outside of the MIG limit.
Does the applicant have pre-existing conditions that prevent maximal recovery?
31I find the applicant has not met her onus in demonstrating her pre-existing conditions prevent maximal recovery such that she should be removed from the MIG.
32The applicant submits that she has a pre-existing diagnosis of plantar fasciitis/fasciopathy, patellofemoral pain syndrome, chronic veinous insufficiency, and carpal tunnel syndrome, and that these conditions were exacerbated by the accident. The applicant relies on 16-001732 v. Wawanesa Mutual Insurance Company, 2017 CanLII 81594 (ON LAT), and the OCF-18 dated January 25, 2024, completed by Dr. Grigory Karmy, physician, and Dr. David Huang, chiropractor. However, I do not find the OCF-18 supportive of the applicant’s claim because there is no reference to her pre-existing conditions preventing maximal recovery if kept within the MIG, as required for removal by section 18(2).
33In 16-001732 v. Wawanesa the Tribunal held that an applicant is not subject to the MIG because he had a pre-existing medical condition that would limit his recovery if he was subject to the limits under the MIG. While I am not bound by this Tribunal’s decisions, the submissions and evidence in front of me do not address whether the applicant’s pre-existing injuries prevent her from achieving maximal medical recovery to satisfy the statutory criteria.
34The respondent submits the applicant has not provided CNRs documenting pre-accident medical conditions relating to her back, and there is only one entry in the CNRs of the family doctor from August 19, 2022 regarding a history of her leg swelling due to varicose veins, which is managed through compression stockings. The respondent relies on the family doctor’s CNRs.
35I find that the OCF-18 prepared by Dr. Karmy/Dr. Huang alone does not support the applicant’s claim because OCFs alone are not sufficient for meeting the onus to establish entitlement to coverage beyond MIG limits. In this case, the applicant has not directed to medical evidence from her treating physician or an independent practitioner in support of this claim.
36I find the applicant has not directed me to evidence from a treating practitioner that supports her claim that her pre-existing condition would prevent her from achieving maximal recovery if subject to treatment within the MIG limit.
37The applicant’s reply submissions do not address any of the MIG-related issues. Instead, the reply submissions are focussed entirely on the NEB, which I address below.
38For the above-noted reasons, I find the applicant has not met her burden to prove that her pre-existing condition will prevent her from achieving maximal recovery under the MIG.
Is the applicant is entitled to a NEB in the amount of $185.00 per week from August 25, 2023 to date and ongoing?
39Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which generally focusses on a comparison of an applicant’s pre- and post-accident activities.
40The OCF-1 dated January 24, 2023, notes the applicant was working at the time of the accident and her injuries included back, neck, leg, knee, chest pains, with headache, nervousness, anxiety, depression and sleep issues. On the form at Part 8, Income Replacement Determination, it states the applicant was prevented from working from November 24, 2022 to December 5, 2022, a period of eight days.
41The applicant submits that her pre-accident activities included socializing with friends and her grand children, and she was independent in her personal care, housekeeping, and home maintenance. The applicant submits that post-accident she has difficulty with her daily living including her personal care, she is unable to perform her household duties, and she is supported by her children. At work she has difficulty with providing mobility aid for her clients and she is restricted to lifting 1 – 5 kg at her workplace. However, I am not directed to evidence in support of the applicant’s workplace restrictions regarding her duties, or any accident-related reason for the restriction to lifting 1 to 5 kg.
42The applicant relies on parts of Dr. Stewart’s section 44 general practitioner report and the OCF-3, OCF-1, and OCF-10.
43Based on the evidence before me, the applicant’s pre-accident activities that she ordinarily engaged in were working, independent personal care, housekeeping, socializing and recreational activities with her grandchildren.
44The OCF-3 dated February 1, 2023, prepared by Dr. Sanghera, chiropractor, notes the applicant suffers a complete inability to carry on a normal life and the anticipated duration for recovery is 9 – 12 weeks.
45I find Dr. Stewart’s section 44 report on the whole is not supportive of the applicant’s claim. Dr. Stewart’s report includes a paper-review of the applicant’s medical records and Dr. Stewart also conducted an in-person assessment. Dr. Stewart notes the applicant sustained a minor and uncomplicated left shin contusion, with no ongoing injury or impairment and her injury would not have resulted in any impairment or disability. Dr. Stewart notes, “she does not have a substantial inability to complete the essential tasks of her pre-accident employment.”
46The respondent submits the applicant was employed and working at the time of the accident and qualified for income replacement benefits, not NEBs. The respondent submits there has been no change in circumstances for the applicant to elect NEB as a specified benefit. The respondent relies on section 12(1) of the Schedule and Jones v. The Co-operators, 2021 CanLII 13200 (ON LAT) and Ozor v. Aviva Insurance Company, 2022 CanLII 106429 (ON LAT). In Jones and Ozor the Tribunal found that an insured person is not eligible for a NEB if they are entitled to IRBs. The respondent also submits the applicant does not meet the test in Heath and does not suffer a complete inability to carry on a normal life.
47Further, the respondent submits that the applicant did not respond to its section 33 requests dated February 15, 2023, May 11, 2023 and August 10, 2023 and the respondent relies on the family doctor CNRs, and the section 44 reports of Dr. Saunders and Dr. Stewart.
48In her reply submissions the applicant submits she has been on modified duties for nearly two years; however, I was not directed to evidence in support of her modified duties being a result of her accident-related impairments. The applicant also confirms that she made a claim for an income replacement benefit and submits the section 33 requests were directed to that claim, not her entitlement to a non-earner benefit. However, the applicant did not explain how or why she would be entitled to both an income replacement benefit and a non-earner benefit.
49I find the applicant falls short of meeting her onus in proving that she meets the test for a NEB because the evidence before me does not support the applicant’s claim that her accident-related impairments prevent her from carrying out her pre-accident activities. In addition, she did not identify those activities that she values most and that would attract more weight.
50I am not persuaded by the applicant’s argument that Dr. Stewart’s section 44 report supports her claim for a NEB because Dr. Stewart concluded the applicant’s pain is not caused by the accident and that “there is no relationship between her reported restrictions and the subject accident.”
51In the alternative, the applicant submits that she submitted an OCF-10 dated August 25, 2023 and that her NEB benefits were not properly denied in accordance with Smith v. TD General Insurance Company, 2002 SCC 30, [2002] 2 SCR 129.
52The respondent submits that an additional denial response is not needed because there was no change in the applicant’s circumstances because the applicant is eligible for IRB, not NEBs.
53I find the respondent’s denial notice dated February 21, 2023 provides a clear and unequivocal denial in straightforward and clear language stating, “As you are eligible for the Income Replacement benefit you are not eligible for the Non-Earner Benefit.”
54I find the applicant has not met her onus in proving on a balance of probabilities that she has a complete inability to carry on a normal life because of her accident-related impairments. Therefore, I find on a balance of probabilities that the applicant is not entitled to NEB.
Are the treatment plans reasonable and necessary?
55Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
56Interest applies on the payment of any overdue benefits pursuant to schedule 51 of the Schedule. As no benefits are owed, no interest is payable.
ORDER
57For the above reasons, it is ordered that:
i. The applicant is subject to the MIG.
ii. The applicant is not entitled to a NEB of $185.00 per week from August 25, 2023 to date and ongoing.
iii. As there are no overdue benefits, the applicant is not entitled to interest.
58The application is dismissed.
Released: May 20, 2026
__________________________
Aric Bhargava
Adjudicator