Licence Appeal Tribunal File Number: 25-000093/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:
Oswald Poyser
Applicant
and
Jevco Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Anna Korolkova, Paralegal
For the Respondent: Nicholas Voight, Counsel
HEARD: In Writing
OVERVIEW
1Oswald Poyser, the applicant, was involved in an automobile accident on September 13, 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, 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 (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $4,068.28 for physiotherapy services, proposed by 101 Physio, in a treatment plan/OCF-18 (“plan”) submitted on October 31, 2022, and denied on February 9, 2023?
iii. Is the applicant entitled to $3,498.72 for physiotherapy services, proposed by 101 Physio, in a plan submitted on February 27, 2023, and denied on April 25, 2023?
iv. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments, in a plan submitted on November 11, 2022, and denied on February 7, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not proven injuries which warrant removal from the MIG.
4It is not necessary to analyze the disputed treatment plans to determine if they are reasonable and necessary.
5The applicant is not entitled to interest.
6This application is dismissed.
ANALYSIS
The applicant has not proven a condition which warrants removal from 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 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.
The applicant has not proven a psychological impairment that would remove them from the MIG
9The applicant submits that they have developed a major depressive disorder and generalized anxiety disorder as a result of the accident. In support of this, the applicant cites the clinical notes and records of Dr. A. Sastry, psychiatrist.
10The respondent cites the s. 44 report of Mr. M. Lotfalizadeh, psychologist. Mr. Lotfalizadeh found that the applicant did not have a diagnosable psychological impairment as a result of the accident.
11I note that the applicant has a significant history of documented psychological and psychiatric issues, which I will not be detailing in this decision to respect the applicant’s privacy. There were no submissions made that suggest the applicant should be removed from the MIG as a result of a pre-existing condition pursuant to s. 18(2).
12Dr. Sastry documented an initial psychiatric consult with the applicant on October 9, 2024. In this consult, Dr. Sastry diagnoses the applicant with major depressive disorder [moderate, recurrent] and generalized anxiety disorder.
13While Dr. Sastry has made this diagnosis, she has not reported it as an accident-related injury. She notes that the applicant has had psychological issues which pre-date the accident.
14The respondent relies on the s. 44 report of Mr. Lotfalizadeh. Mr. Lotfalizadeh assessed the applicant on January 13, 2023. Mr. Lotfalizadeh also referenced the applicant’s prior psychological issues in his report.
15Mr. Lotfalizadeh declined to make a psychological diagnosis, as the Structured Inventory of Malingered Symptomatology (“SIMS”) result was significantly elevated above the recommended cutoff score.
16I note that the applicant takes issue with Mr. Lotfalizadeh’s report as both the Beck Depression Inventory II (“BDI-II”) and the Beck Anxiety Inventory (“BAI”) as conducted by Mr. Lotfalizadeh showed severe depression and severe anxiety respectively.
17Mr. Lotfalizadeh does address these scores in his report, and notes that given the SIMS result, he cannot make an objective diagnosis based on the results of the BDI-II and BAI.
18I do accept that the applicant does suffer from the conditions diagnosed by Dr. Sastry, however, there has been no evidence of significance provided to link those conditions to the accident.
19I therefore find that the applicant has not proven, on a balance of probabilities, a psychological impairment which warrants removal from the MIG.
The applicant has not proven chronic pain with an associated functional impairment that warrants removal from the MIG
20The applicant submits that they have chronic pain as a result of the accident and should be removed from the MIG. In support of this, the applicant points to clinical notes and records of 101 Physio from September 2019 to December 2024. In addition, the applicant points to a January 17, 2023, visit with Dr. I Chaudry, physician.
21The respondent notes that a section 44 assessment conducted by Dr. F. Loritz, physician, did not identify any objective impairments of a musculoskeletal or neurological nature.
22The Tribunal has held that in order to be removed from the MIG, the applicant must demonstrate they suffer from chronic pain with an associated functional impairment. The applicant has not made any submissions identifying the functional impairments that are associated with the applicant’s pain. Neither has the applicant pointed me to any medical evidence that demonstrates a functional impairment.
23I give weight to the opinion of Dr. Loritz in this matter, as Dr. Loritz has specifically addressed the applicant’s function and found no objective impairments.
24I therefore find that the applicant has not met their burden to prove injuries that warrant removal from the MIG on the basis of chronic pain with a functional impairment.
It is not necessary to analyze the disputed treatment plans.
25Having found that the applicant sustained a minor injury as a result of the accident, I find that it is not required to review the treatment plan in dispute to determine if it is reasonable and necessary.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, there is no entitlement to interest.
ORDER
27For the reasons above I find that:
i. The applicant has not proven injuries outside of the MIG;
ii. It is not necessary to analyze the disputed treatment plans to determine if they are reasonable and necessary, as the applicant remains subject to the MIG; and
iii. There is no entitlement to interest.
28This application is dismissed.
Released: June 11, 2026
Julian DiBattista
Vice-Chair