Licence Appeal Tribunal File Number: 24-015062/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:
Jasbir Singh
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Joe Bowcock, Counsel
HEARD: In Writing
OVERVIEW
1Jasbir Singh, the applicant, was involved in an automobile accident on October 31, 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, Wawanesa Mutual 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:
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”)?
Is the applicant entitled to $98.96 ($1,160.27 less $1,061.41 approved) for Physiotherapy treatment, proposed by Total Care Rehab in a treatment plan/OCF-18 (“plan”) dated January 26, 2024?
Is the applicant entitled to $19,452.88 for Chronic Pain treatment, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated June 13, 2024?
Is the applicant entitled to $3,847.82 for Psychological treatment, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated July 8, 2024?
Is the applicant entitled to the assessments proposed by Mississauga Rehab and Sports Injury Clinic, as follows:
i. $2,618.05 for a Psychological Assessment, in a treatment plan dated March 11, 2024; and
ii. $2,486.00 for an Orthopaedic Assessment, in a treatment plan dated May 28, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not met his onus to prove he should be removed from the Minor Injury Guideline and it’s $3,500 treatment limit.
4As the applicant is being held to the MIG, it is not necessary for me to review the treatment plans and assessments to determine if they are reasonable and necessary.
5Neither interest nor an award are payable.
ANALYSIS
Should the applicant be removed from the MIG due to Chronic Pain?
6I find the applicant has not met his onus to demonstrate that he should be removed from the MIG due to chronic pain with a functional impairment.
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 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), 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.
9The applicant argues he has suffered persistent left knee and lower back pain since the accident, and should be removed from the MIG on the basis of chronic pain with a functional limitation. To support his claim, he relies upon the Clinical Notes and Records (CNRs) of his primary care physician, Dr. Zinah Al-Sammarraie and a s.25 Orthopaedic Report by Orthopaedic Surgeon Dr. Ogilvie-Harris, dated June 30, 2024.
10The respondent argues that the applicant has discovered a degenerative bone disease which was not caused by the accident, and that is the reason for the applicant’s pain. To support its argument, the respondent also relies upon a s.44 Physiatry Examination conducted by Physiatrist Dr. Alfonse Marchie, dated November 25, 2024.
11I have read the submissions carefully, and on the balance of probabilities, I am more persuaded by the respondent’s argument and evidence. I make this finding for several reasons.
12The s.25 report from Dr. Ogilvie-Harris was done on June 30, 2024. The applicant has submitted evidence indicating he received an MRI which revealed degenerative disc disease. This MRI was conducted May 5, 2024, but Dr. Ogilvie Harris did not make any reference to the MRI in his report, or provide any reference that he reviewed the MRI report when rendering his opinion.
13The applicant did not visit his primary care physician, or make any complaints of back pain, until four months after the accident in question. There are conflicting reports about the applicant’s work (Dr. Marchie’s report indicates the applicant took 10 days off work) but the evidence confirms shortly after the accident, he returned to working 40 hours per week.
14The applicant visited his GP only six times since the accident, and has not visited since December 2024. This does not support the claim that the applicant is suffering from chronic pain.
15Dr. Marchie specifically refers to Chronic Pain Syndrome, and says in his report “he does not qualify for a diagnosis of chronic pain as per the AMA Guides [6th edition] for a definition of chronic pain.”
16Dr. Ogilvie-Harris acknowledges the applicant will not meet two of the six criteria in the AMA guidelines: excessive dependence on prescription medication, and ‘excessive dependence on health care providers.’ An applicant must meet three of the six criteria to support a diagnosis of chronic pain syndrome.
17The respondent argues the applicant also does not meet the third criteria: ‘secondary physical deconditioning due to fear-avoidance of physical activity.’ It argues there are no reports submitted of fear-avoidance due to physical pain. I have not been led to evidence which indicates the applicant is dealing with fear avoidance or other physical deconditioning.
18Furthermore, the respondent argues the applicant has not withdrawn from social milieu (the fourth criteria.) I note from the evidence the applicant works full time, is a new father, attends Temple, and goes to barbecues and parties. This does not support a claim that the applicant has withdrawn from social milieu.
19Furthermore, the presence of pain alone is not sufficient to meet the onus to be removed from the MIG due to chronic pain. The legal test, as identified in paragraph 8, says an applicant may be removed from the MIG due to chronic pain with a functional impairment. Both assessors indicate the applicant has full range of motion in his back. I have not been led to evidence to indicate what functional impairment may be present.
20In summary, while I can accept that the applicant may struggle with pain, I am not persuaded that the applicant meets the criteria for chronic pain with a functional impairment.
21For these reasons, I find that, on the balance of probabilities, the applicant has not met his onus to establish he should be removed from the MIG on the basis of chronic pain with a functional impairment.
Should the applicant be removed from the MIG due to a psychological injury?
22The applicant has not met his onus to establish he should be removed from the MIG due to psychological injury.
23The applicant argues he suffers from severe adjustment disorder, and relies upon a s.25 Psychological Assessment conducted by Psychologist Betty Kershner, dated April 2, 2024. Dr. Kershner diagnosed the applicant with Adjustment Disorder with mixed anxiety and symptoms of depression.
24The respondent disagrees, and relies upon a s.44 Psychological Assessment conducted by Psychologist Dr. Sharleen McDowall, dated September 30, 2024. Dr. McDowall reports that the applicant’s symptoms do not merit a DSM-5 diagnosis.
25I am more persuaded by the evidence from the respondent. I make this finding because I put less weight on the report of Dr. Kershner. The testing conducted by Psychologist Kershner was subjective in nature, depending on the applicant’s self reports. I note that Dr. Kershner relied upon tests such as the Beck Depression Inventory, The Beck Anxiety Inventory, the Beck Hopelessness Scale, the Impact of Events Scale and the Injustice Experience Scale. These tests are self-report questionnaires.
26While Dr. McDowall also administered similar tests, she also conducted the Miller Forensic Assessment of Symptoms (M-FAST) test which include a validity scale. She reports that the applicant’s test results showed he was over-endorsing symptoms, and suggests he was malingering. She also points to the Patient Pain Profile, which also has a Validity Index, and reported that the applicant scored “Average” for depression, pain and somatization.
27In the face of conflicting psychology assessments, I have also reviewed the evidence of contemporaneous corroborating evidence. I turned to the CNR’s from the applicant’s family physician, because as an objective health care practitioner who is very familiar with the applicant, I find their notes are a valuable source of information. I have not been led to a history of complaints about psychological concerns to the applicant’s family physician, and I note that the primary care physician has not diagnosed any psychological injury or provided any suggested treatment for psychological concerns.
28For these reasons, I find the applicant has not proven on a balance of probabilities, that he should be removed from the MIG on the basis of a psychological injury.
29As the applicant is being held to the MIG, it is unnecessary for me to conduct a reasonable and necessary analysis of the treatment plans in dispute.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
31The applicant sought an award under s. 10 of Reg. 664. Under s. 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. As the applicant has not unreasonably withheld or delayed paying benefits, no award is payable.
ORDER
32The application is dismissed.
i. The applicant has not met his onus to prove he should be removed from the Minor Injury Guideline and it’s $3,500 treatment limit.
ii. As the applicant is being held to the MIG, it is not necessary for me to review the treatment plans and assessments to determine if they are reasonable and necessary.
iii. Neither interest nor an award are payable.
Released: June 1, 2026
Jeff Chatterton
Adjudicator