Licence Appeal Tribunal File Number: 25-000402/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:
Zaira Delos Reyes
Applicant
and
Echelon General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Anna Korolkova, Paralegal
For the Respondent:
Drew Higginbotham, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Zaira Delos Reyes, the applicant, was involved in an automobile accident on August 19, 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, Echelon General 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 the services proposed by 101 Physio, as follows:
$3,404.88 for chiropractic services, in a treatment plan/OCF-18 (“plan”) dated August 30, 2022; and
$2,342.71 for physiotherapy and chiropractic services, in a plan dated March 23, 2023?
iii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments, in a plan dated September 12, 2022?
iv. 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 as defined in the Schedule, and therefore the applicant remains within the MIG.
Since the applicant remains within the MIG, I do not need to assess the reasonableness and necessity of the disputed treatment and assessment plans.
The applicant is not entitled to interest.
ANALYSIS
Are the applicant’s injuries predominantly minor?
4I find that the applicant sustained impairments that are predominantly minor under the Schedule, and, as a result, her entitlement to medical and rehabilitation benefits is subject to the MIG limit.
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 on the basis of: (i) chronic pain; (ii) a pre-existing condition (rotoscoliosis); (iii) concussion-related symptoms; and (iv) psychological impairment.
8I address each submission in turn.
Chronic pain
9I find that the applicant has not established that she suffers from chronic pain with a functional impairment that warrants removal from the MIG.
10The applicant submits that she developed chronic pain following the accident, relying on ongoing complaints of neck, thoracic, and lumbar pain, headaches, and shoulder discomfort, as well as on functional limitations.
11The respondent submits that the evidence fails to establish a chronic pain syndrome and relies on Y.X.Y. v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT), which held that chronic pain requires persuasive evidence of significant and sustained functional impairment beyond the expected sequelae of soft-tissue injuries. The respondent also relies on the s. 44 report of Dr. Deborah Rabinovitch, a physiatrist.
12The OCF-3, dated September 6, 2022, completed by chiropractor Nilav Bhowmik, identifies diagnoses of sprains and strains affecting the cervical, thoracic, and lumbar spine, the shoulder, and cervicalgia.
13Dr. Christopher Liu, the family physician, documented upper back pain and chest discomfort consistent with a seatbelt-related impact in the clinical note dated August 19, 2022. Subsequent records confirm no fracture (Clinical notes and records (“CNRs”) dated August 20, 2022).
14Imaging on the date of loss identified rotoscoliosis but did not link it to traumatic injury (August 19, 2022, Antrim X-Ray and Ultrasound).
15I accept the respondent’s position. Although the applicant reported ongoing pain, the medical evidence does not establish that the injuries are of a nature that would remove the applicant from the MIG.
16Additionally, the treatment records from 101 Physio consistently document soft-tissue complaints, including strains, sprains, headaches, and localized pain, that fall squarely within the MIG definition and its expected sequelae.
17I place significant weight on the insurer’s October 18, 2024, examination by Dr. Rabinovitch. She concluded that the applicant’s presentation was consistent with mechanical neck pain that was within the MIG. Notably, the applicant reported low-intensity pain (3/10), approximately 80% recovery, independence in daily functioning, and a return to recreational activities.
18Although the applicant described ongoing discomfort, the evidence does not demonstrate a functionally limiting pain condition.
19Accordingly, on a balance of probabilities, I find that the applicant has not established chronic pain with a functional impairment that removes the applicant from the MIG.
Pre-Existing Condition
20I find that the applicant has not established that a pre-existing condition removes her from the MIG.
21The applicant submits that thoracic rotoscoliosis was a pre-existing condition that impeded her recovery and, therefore, excludes her from the MIG. The applicant relies on thoracic spine X-ray findings dated August 19, 2022, which noted “rotoscoliosis of the thoracic spine convex to the right with the apex at T7 level with Cobb’s angle measuring 16 degrees.”
22The respondent submits that a pre-existing condition does not automatically exclude an insured person from the MIG. The respondent relies on the Schedule itself, which requires compelling evidence from a health practitioner showing that the pre-existing condition would prevent maximal recovery if the insured remained within the MIG.
[23]
23The only medical evidence of a pre-existing condition consists of the X-ray dated August 19, 2022, and the family doctor’s CNR dated August 20, 2022, both of which indicate rotoscoliosis. Based on this evidence, I find that the applicant had a pre-existing condition of rotoscoliosis; however, the evidence does not establish that this condition meets the second part of the applicable test.
24I agree with the respondent that the second part of the test in s. 18(2) has not been met. In her insurer’s examination report, Dr. Rabinovitch indicated that no relevant pre-existing conditions were identified that would prevent the applicant from achieving maximum recovery from the MIG if treatment is limited to the MIG monetary limit.
25Section 18(2) of the Schedule expressly states that a pre-existing condition will remove an applicant from the MIG only in limited circumstances, that is, when compelling medical evidence establishes that the condition will prevent maximal recovery under the MIG framework. There is no compelling medical evidence that the condition will prevent maximal recovery under the MIG framework. While the thoracic imaging identified rotoscoliosis, there is no persuasive medical opinion explaining how that condition prevents the applicant from recovering from her accident-related soft tissue injuries within the MIG.
26Accordingly, on a balance of probabilities, I find that the applicant has not established a pre-existing condition that would remove her from the MIG.
Concussion
27I find that the applicant has not established that she sustained a concussion that would remove her from the MIG.
28The applicant submits that she sustained concussion-related symptoms after the accident. She points to the 101 Physio notes dated August 19, 2022, which document headaches and include the notation “possible mild concussion.”
29The respondent submits that the applicant was never diagnosed with a concussion or a post-concussive disorder, and that the reference to a “possible” concussion is insufficient to establish a non-minor impairment.
30The OCF-3 indicated tension-type headache.
31In the CNRs dated August 19, 2022, the applicant’s family doctor reported that the applicant is experiencing a headache.
32I accept the respondent’s submissions. The medical evidence does not establish that the applicant sustained a diagnosed concussion. The reference to a possible concussion is speculative and lacks diagnostic confirmation or follow-up assessment. There is no evidence of neurological deficit, cognitive impairment, specialized assessment, or imaging consistent with a brain injury.
33Moreover, the subsequent medical documentation does not support the existence of a continuing concussion-related impairment.
34Accordingly, on a balance of probabilities, I find that the applicant has not established that she sustained a concussion that would remove her impairments from the MIG.
Psychological Impairment
35I find that the applicant has not established a psychological impairment that would remove her from the MIG.
36The applicant submits that she developed psychological symptoms following the accident, including anxiety, nervousness, nightmares, insomnia, fear of travelling in vehicles, and depressed mood. The applicant relies on the OCF-18, which proposes a psychological assessment, as well as the OCF-3, which references stress, nervousness, insomnia, and tension-type headaches.
37The respondent relies on the July 14, 2023, psychological insurer’s examination report by Dr. Monique Costa El-Hage, a psychologist. Dr. El-Hage concluded that the applicant did not meet DSM-5 diagnostic criteria for any psychological disorder related to the accident; that psychological intervention was not warranted; and the applicant’s symptoms did not exceed the MIG framework.
38The OCF-18 dated September 12, 2022, includes a report by Dr. Konstantinos Papazoglou (a psychologist) suggesting an adjustment disorder with mixed anxiety and depressed mood. However, I find that this was a screening-level assessment, based primarily on self-reported symptoms, and lacking comprehensive psychometric testing, longitudinal observation, or a full diagnostic workup typically required to establish a DSM-5 diagnosis. Although a psychological diagnosis is not strictly required for removal from the MIG, I assign this evidence less weight than I do to Dr. El-Hage's report.
39I also note that there are no contemporaneous complaints of psychological symptoms documented in the family physician’s records after the accident, which supports a finding that the applicant does not have a psychological condition that would remove her from the MIG.
40I prefer Dr. El-Hage's evidence. She conducted an in-person psychological assessment and specifically considered the applicant’s reported symptoms. The report notes that the applicant denied any prior psychological treatment and stated that she was not receiving psychological care after the accident. The applicant also reportedly stated that she did not believe she required psychological support.
[41]
41While I accept that the applicant experienced some emotional distress after the accident, the evidence does not establish that she sustained a psychological impairment that would remove her from the MIG. Without persuasive supporting medical evidence, subjective complaints alone are insufficient to support such a finding.
42Accordingly, on the balance of probabilities, I find that the applicant has not established a psychological impairment that would remove her from the MIG.
Conclusion on the MIG
43Having considered the totality of the evidence, I find that the applicant sustained predominantly soft-tissue injuries that fall within the definition of minor injury under s. 3(1) of the Schedule.
44I further find that the applicant has not established chronic pain, a psychological impairment, a concussion, or a pre-existing condition that would prevent maximal recovery under the MIG.
45Accordingly, on a balance of probabilities, I find that the applicant’s impairments remain subject to the MIG and to the $3,500 funding limit.
Is the applicant entitled to the disputed treatment and assessment plans?
46As the applicant remains within the MIG, it is not necessary to determine whether the disputed treatment and assessment plans are reasonable and necessary.
Interest
47Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, there are no overdue amounts, and no interest is owing.
ORDER
48For the above reasons, I find that:
i. The applicant’s injuries are predominantly minor as defined in the Schedule, and therefore the applicant remains within the MIG.
ii. Since the applicant remains within the MIG, I do not need to assess the reasonableness and necessity of the disputed treatment and assessment plans.
iii.
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: June 10, 2026
__________________________
Harouna Saley Sidibé
Adjudicator