Licence Appeal Tribunal File Number: 25-001027/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:
Tamar Lindsay
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Maka Metreveli, Paralegal
For the Respondent:
Nicole A Dowling, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Tamar Lindsay, the applicant, was involved in an automobile accident on May 8, 2020, 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:
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?
ii. Is the applicant entitled to $2,153.72 for chiropractic services, proposed by 101 Physio, in a treatment plan/OCF-18 (“plan”) submitted on December 4, 2024, and denied on December 17, 2024?
iii. Is the applicant entitled to $3,790.70 for psychological services, proposed by 101 Assessments, in a plan submitted on March 18, 2025, and denied on March 31, 2025?
iv. Is the applicant entitled to $2,460.00 for a psychiatric assessment, proposed by 101 Assessments, in a plan submitted on January 29, 2025, and denied on February 11, 2025?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
The applicant’s injuries are predominantly minor; therefore, the applicant remains within the MIG monetary limit.
As the applicant remains within the MIG, I do not need to assess the reasonableness and necessity of the disputed treatment and assessment plans. Additionally, the respondent's denial letters complied with s. 38 of the Schedule, so s. 38 (11) is not triggered.
The applicant is not entitled to interest.
ANALYSIS
Are the applicant’s injuries predominantly minor?
4I find that the applicant’s accident-related injuries are predominantly minor and fall under the MIG.
5Section 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.”
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 should be removed from the MIG due to chronic pain and psychological impairment.
Chronic pain
8I find that the applicant has not established that she suffers from accident-related chronic pain with functional impairment that would warrant her removal from the MIG.
9The applicant submits that her impairments are not minor, as she has experienced ongoing symptoms since the accident, including neck, thoracic, and lumbar pain, shoulder complaints, and functional limitations. She relies on clinical records from 101 Physio, Dixon Chiropractic and Spine Clinic, Brampton Civic Hospital, and her family physician, Dr. Azhar Toma.
10The respondent submits that the applicant sustained uncomplicated soft tissue injuries that fall squarely within the MIG. The respondent relies on the absence of emergency medical treatment, the lack of OHIP-funded care for an extended period after the accident, the OCF‑3 completed by Dr. Bill Nikols (a chiropractor) on June 3, 2020, and multiple insurer examinations, including those conducted by Dr. Patrick Tansey (an orthopaedic surgeon) and Dr. M. Devlin (a physiatrist).
11At the outset, I note that the applicant was in a subsequent accident in June 2024.
12I find that the applicant’s early treatment records confirm she sustained soft‑tissue injuries to the neck, back, shoulders, and related musculature. Records from 101 Physio document chiropractic care, ultrasound, acupuncture, and massage. A progress report dated November 18, 2020, documents ongoing pain complaints and notes perceived barriers to recovery. Although the November 18, 2020, 101 Physio progress report documents widespread tenderness, positive orthopaedic tests, and muscle hypertonicity, the treatment recommendations focus on ongoing active rehabilitation and functional conditioning. The reports are consistent with soft‑tissue injuries and related myofascial pain, rather than chronic pain with a functional impairment, a non‑minor impairment.
13The OCF‑3, completed by Dr. Nikols, a chiropractor, on June 3, 2020, diagnosed soft‑tissue injuries and headaches and estimated the anticipated duration of impairment at 9 to 12 weeks, an opinion consistent with MIG‑level injuries.
14Records from Dixon Chiropractic and Spine Clinic dated April 28, 2022, document residual thoracic and lumbar sprain but do not document trauma, functional impairment, or objective pathology, thereby placing the condition within the MIG.
15The Brampton Civic Hospital records dated November 20, 2021, document chest pain. The applicant was discharged in improved condition, with a normal electrocardiogram (ECG) and no respiratory distress. These records do not link the chest pain to the accident. Other hospital records from 2018 pertain to pregnancy and are unrelated to the accident.
16The majority of Dr. Toma’s clinical records pertain to obstetrical care or non-accident-related complaints. Investigations for chest pain found no acute pathology. Notes dated July 20, 2024, and August 14, 2024, reference headache, neck and back pain, joint pain, and anxiety following a June 20, 2024, motor vehicle accident. These records do not clearly distinguish between symptoms attributable to the 2020 accident and those arising after the June 20, 2024, accident.
17Diagnostic imaging from the Ontario Diagnostic Centre (Dr. Vikram Venkatesh, a physician) in August and November 2024 showed either unremarkable findings or minor changes, including trace suprapatellar effusions, which were described as potentially physiological or consistent with low‑grade bursitis.
18Dr. Farhan Siddiqui, a physician at Releva Chronic Pain Centre, diagnosed multiple pain-related conditions in November 2024. However, his report does not convincingly explain the causal link between these diagnoses and the May 2020 accident, particularly given the subsequent June 2024 collision, because it does not meaningfully distinguish whether, or to what extent, the applicant’s symptoms are attributable to the first accident as opposed to the later event.
19During an insurer examination on April 1, 2021, Dr. Tansey found full or near-full ranges of motion, normal neurological findings, and no objective musculoskeletal impairment. He concluded that the applicant sustained uncomplicated myofascial strains, predominantly minor.
20During his physiatry insurer examination on January 12, 2022, Dr. Devlin noted full spinal range of motion with end-range pain, normal neurological findings, and no nerve root involvement. Although the applicant’s pain was expected to persist, the diagnoses remained non-specific neck and low back pain.
21The applicant relies heavily on the clinical notes and records (“CNRs”) from Dr. Toma dated July 20, 2024, and August 14, 2024. I accept the respondent’s submission that these notes primarily relate to the June 20, 2024, accident. The applicant has not satisfactorily explained how these complaints, subsequent to the June 2024 accident, relate to the May 2020 accident.
22I further find it significant that, more than four years after the May 2020 accident, the applicant sought new treatment and assessment plans only after the June 2024 collision. There is limited evidence of ongoing treatment or functional deterioration directly attributable to the 2020 accident.
23After weighing all of the medical evidence, I find that the applicant has not established that her ongoing pain constitutes accident-related chronic pain with associated functional impairment that removes her from the MIG. The evidence instead supports a finding of persistent but nonspecific soft-tissue complaints consistent with minor injury.
24Accordingly, on a balance of probabilities, I find that the applicant does not have chronic pain with a functional impairment resulting from the May 8, 2020, accident that would remove her from the MIG.
Psychological impairment
25I find that the applicant has not proven that she sustained an accident-related psychological impairment sufficient to remove her from the MIG.
26The applicant submits that she has experienced headaches, sleep disturbance, anxiety, and fear in vehicles since the accident and relies on psychological IE assessment evidence.
27The respondent relies on the insurer’s psychological examination, conducted by Dr. Tatiana Dumitrascu, a psychologist, who concluded that the applicant did not sustain accident-related psychological impairments.
[28]
29A progress report dated November 18, 2020, by Dr. Nikols notes sleep disturbance and adjustment difficulties. These observations reflect reported symptoms rather than formal psychological diagnoses and are within the chiropractor’s scope of practice, but they do not amount to expert evidence on any psychological disorder or its cause.
30Family physician CNRs dated February 14, 2023, state that the applicant reported several years of anxiety and insomnia. Although anxiety was diagnosed, no causal relationship to the May 2020 accident was established.
31During her January 12, 2022, insurer examination, Dr. Dumitrascu found that the applicant did not meet DSM‑5 criteria for any accident-related psychological disorder. Objective psychometric testing revealed symptom magnification and inconsistent responding, rendering the results invalid. Based on the clinical interview, behavioural observations, and testing, Dr. Dumitrascu concluded that psychological treatment was not warranted.
32Taken together, I find that the preponderance of evidence indicates that the applicant had anxiety and insomnia before the accident and not related to the May 2020 accident. I place weight on Dr. Dumitrascu’s opinion because she conducted psychometric testing, is a qualified psychologist, and her opinion is consistent with the preponderance of the evidence before me.
33In sum, I am not satisfied that the applicant has proven, on a balance of probabilities, that she has a psychological condition resulting from the May 8, 2020, accident that would remove her from the MIG.
34Therefore, on a balance of probabilities, I find that the applicant’s injuries are predominantly minor and remain within the MIG.
Is the applicant entitled to the disputed treatment and assessment plans?
35Because I have found that the applicant’s accident‑related injuries fall within the MIG, I am not required to assess the reasonableness or necessity of the disputed treatment and assessment plans. Entitlement to those benefits is therefore governed by the MIG limits.
36I will now consider whether the applicant has successfully established that the treatment plans are payable under section 38 of the Schedule.
Section 38(8) of the Schedule
37I find that the respondent has complied with the notice requirements set out in section 38(8) of the Schedule in relation to the denial letters properly before me, and that the applicant has not established entitlement to payment under section 38(11).
38Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considers the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in section 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
39The applicant submits that the respondent failed to comply with section 38(8) of the Schedule in relation to the denial letters dated December 17, 2024, February 28, 2025, and April 9, 2025. She argues that, as a result of these alleged deficiencies, section 38(11) prohibits the respondent from taking the position that her injuries fall within the MIG.
40The respondent claims all denials were procedurally correct and justified. It states that the chiropractic treatment was denied within the ten‑business‑day limit under section 38(8), and that the applicant failed to prove late delivery, relying only on internal logs rather than receipt evidence. The respondent argues that even if a breach occurred, section 38(11) does not grant automatic benefits, only a temporary obligation to pay actual expenses, which the applicant has not shown. It maintains that the psychiatric and psychological treatment was properly denied based on insurer findings of no accident‑related diagnosis, symptom magnification, and lack of medical necessity. The respondent also says the applicant’s new psychological complaints arose after a 2024 motor vehicle accident, breaking causation. Therefore, it asserts its entitlement to rely on the MIG.
41With respect to the alleged denial dated December 17, 2024, the applicant submits that no proper written denial compliant with section 38(8) was delivered within the required timeframe. She relies on insurer adjuster log notes indicating that the denial was drafted on December 20, 2024, and sent on December 23, 2024. However, the applicant did not submit a copy of any denial letter dated December 17, December 20, or December 23, 2024. In the absence of the actual denial letter or any evidence establishing the date of delivery to the applicant or her representative, I am unable to assess whether the requirements of section 38(8) were satisfied or breached. The applicant bears the burden of proof on this issue and has not met it. I therefore find that the applicant has not demonstrated that the respondent failed to comply with section 38(8) in denying this treatment plan.
42The insurer’s February 28, 2025, denial letter in response to the plan for a psychiatric assessment meets the requirements of section 38(8) of the Schedule. The letter clearly identifies the treatment plan under consideration, states that payment is denied, and sets out the medical reasons relied upon, including references to insurer examinations by Dr. Devlin and Dr. Dumitrascu, the absence of an accident‑related psychological diagnosis, and the insurer’s position that the applicant’s injuries fall within the MIG. I find that this denial letter is compliant with s. 38(8). While the applicant submits that the denial was not issued within the required timeframe, there is no evidence before me to substantiate that assertion.
43The April 9, 2025, denial letter regarding the psychological treatment plan likewise meets the requirements of section 38(8) of the Schedule. The insurer clearly states that it will not pay for the proposed goods and services, specifies the amount denied, and sets out detailed medical reasons for the decision. These reasons include reliance on insurer examinations, the absence of a DSM‑diagnosed psychological impairment attributable to the accident, the insurer’s conclusion that the applicant’s injuries fall within the MIG, and the absence of evidence of any pre‑existing condition that would remove the applicant from the MIG. I find this denial to be timely and compliant with section 38(8).
44Additionally, I do not accept the applicant’s submission that any alleged deficiency relating to the December 2024 denial, even if established, would automatically preclude the respondent from relying on the MIG for all purposes. The Divisional Court’s decision in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, which is binding on me, determined that the language in section 38(11) refers to the specific treatment plan in question and does not impose a permanent prohibition with respect to the MIG.
45The applicant has not clearly explained how the February 28, 2025, or April 9, 2025, denial letters fail to comply with section 38(8), and the evidence does not support a finding of procedural non‑compliance. Having reviewed the denial letters before me, I find that the respondent provided a compliant notice under section 38 of the Schedule. Accordingly, the disputed treatment and assessment plans are not payable.
Interest
46Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule. Because I have found that none of the disputed treatment plans are payable, there are no overdue amounts on which interest can accrue.
ORDER
47For the above reasons, it is ordered that:
i. The applicant’s injuries are predominantly minor; therefore, the applicant remains within the MIG monetary limit.
ii. As the applicant remains within the MIG, I do not need to assess the reasonableness and necessity of the disputed treatment and assessment plans. Additionally, the respondent’s denial letters complied with s. 38 of the Schedule, so s. 38(11) is not triggered.
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: May 29, 2026
Harouna Saley Sidibé
Adjudicator