Licence Appeal Tribunal File Number: 25-001327/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:
Nilambanu Pathan
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sarah Guergis
APPEARANCES:
For the Applicant:
Joshua Gautreau, Counsel
For the Respondent:
Brooke Hickingbottom, Counsel
HEARD: In Writing
OVERVIEW
1Nilambanu Pathan, the applicant, was involved in an automobile accident on June 1, 2021, 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, Pembridge 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 (“MIG”) limit?
Is the applicant entitled to $2,415.15 for chiropractic services, proposed by Physio Care and Rehab in a treatment plan/OCF-18 (“plan”) submitted October 18, 2023, and denied November 18, 2023?
Is the applicant entitled to $99.75 ($1,310.31 less $1,210.56 approved) for chiropractic services, proposed by Physio Care and Rehab in a plan submitted November 24, 2023, and denied December 1, 2023?
Is the applicant entitled to $1,798.95 for chiropractic services, proposed by Physio Care and Rehab in a plan submitted February 10, 2024, and denied February 28, 2024?
Is the applicant entitled to $2,550.00 for a psychological assessment, proposed by Auxilium Wellness Centre Inc. in a plan submitted June 20, 2024, and denied June 28, 2024?
Is the applicant entitled to $2,300.00 for an orthopaedic assessment, proposed by Auxilium Wellness Centre Inc. in a plan submitted January 16, 2025, and denied February 12, 2025?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3As the applicant is within the MIG, I have not considered if the plans in dispute are reasonable and necessary.
4No interest is owing.
PROCEDURAL ISSUE
5The respondent submits that the Tribunal ought to reject the applicant’s submissions which address additional assessments that are not in dispute. More specifically, the respondent submits that the applicant is not disputing the denial of a chronic pain assessment (plan) at this time, and it was therefore raised improperly in her submissions.
6In paragraphs 20 and 21 of the applicant’s written submissions, she states that there are clear grounds for a chronic pain assessment.
7I agree with the respondent that this issue was not raised properly, i.e. at the case conference or by way of motion. Therefore, it will not be added as an issue in dispute, and the hearing will proceed with the issues listed in the case conference report and order, as set out above.
ANALYSIS
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule?
8I find that the applicant’s injuries are within the MIG.
9Section 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.”
10An 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.
11The applicant submits that her injuries are not minor based on her chronic pain and psychological injuries. These two grounds are discussed in more detail below.
12The respondent submits that there are no medical records in support of the applicant’s contention that she has suffered a non-minor injury or condition that would warrant her removal from the MIG. Further, that the applicant has wholly failed to discharge her burden of proof in this case and she has not tendered objective medical evidence in support of the contention that she has suffered a non-minor injury or condition that would remove her from the MIG.
Chronic Pain with a functional limitation
13I find that the applicant is not removed from the MIG based on chronic pain.
14Chronic pain with a functional limitation is not included in the minor injury definition and a finding that the Applicant sustained chronic pain with a functional limitation as a result of the accident would permit her to seek treatment beyond the $3,500.00 funding limit provided by the MIG.
15Although not part of the Schedule, the Tribunal has found the six criteria for a chronic pain condition outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria 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 social milieu, including work, recreation, or other social contracts.
v. Failure to restore 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.
16The applicant submits that she meets chronic pain criteria ii), iii), v), and vi) of the 6th Edition of the AMA Guides.
17The applicant’s submissions do not point me to the specific evidence she is relying on to establish chronic pain with a functional impairment. However, the applicant generally relies on clinical notes and records (“CNRs”) from her family doctor, Dr. Rafay, dated June 3, 2023, and CNRs from PhysioCare and Rehab dated June 3, 2023, February 10, 2024, and May 10, 2024. I was not directed to specific page numbers in this evidence which would uphold her claims regarding the AMA Guidelines criteria ii, iii, v, and vi. Upon review, it is not clear how the CNRs from PhysioCare establish evidence of the AMA Guides criteria.
18The respondent submits that the applicant has led no evidence regarding these criteria in her submissions. Further, that “the applicant’s position that she also meets chronic pain criteria is not evidence of a chronic pain condition. No doctor has diagnosed her with chronic pain, nor is there any evidence in the clinical notes and records of her family doctor that would indicate a chronic pain condition.”
19The respondent further submits that there is no evidence of prescription drug usage beyond the recommended duration, nor is there evidence of abuse of or dependence on any prescription drugs or other substances. Nor is there evidence of excessive reliance on healthcare providers, family members, or a spouse. The applicant is not suffering from secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain. Further, that the applicant has failed to adduce evidence suggesting that her ability to engage in pre-accident activities has been obstructed because of her alleged chronic pain.
20I find that I was not pointed to evidence which would establish the applicant’s MIG removal based on chronic pain with a functional impairment because she has not pointed me to evidence which would establish that at least three of the six AMA guideline criteria have been met.
21While I acknowledge that the applicant has generally relied on CNRs from her family doctor and PhysioCare and Rehab, this alone does not establish her failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs, or the development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours, for example.
22Therefore, the applicant is not removed from the MIG based on chronic pain with a functional impairment.
Psychological Impairment
23I find that the applicant is not removed from the MIG based on a psychological impairment.
24To be removed from the MIG as a result of psychological impairment, the applicant must show that she has more than just psychological symptoms or sequelae of a minor injury.
25The applicant submits that she has sustained PTSD and recurring accident-related headaches and anxiety to date, and she developed psychological disorders due to delay in her maximum medical recovery. Further, that she has not restored her pre-injury level of function.
26The applicant further submits that as OHIP and AB assessors confirm that she continues to experience pain, has sustained psychological impairments, and since the Insurer has no opposing medical opinion, this warrants her removal from the MIG.
27The applicant does not direct me to the medical evidence she is relying on to establish a diagnosis of PTSD anxiety or psychological disorders. The applicant generally relies on a pre-screen report dated May 2, 2024, by Nina Belyakova, psychologist.
28The goals of this plan are pain reduction and returning to pre-accident levels of psychological functioning.
29The respondent submits that the applicant’s entire claim for psychological impairment hinges on the report by Nina Belyakova, which alleges that the applicant has “symptomatology” associated with PTSD, and there was no formal diagnosis of PTSD.
30Further, that her post-accident family doctor records are completely devoid of any psychological complaints.
31I considered both parties’ submissions and agree with the respondent that the OCF-18 completed by Nina Belyakova lists symptomatology of PTSD, rather than providing a formal diagnosis of PTSD.
32I find that the applicant has not met her onus to establish that she has more than just psychological symptoms or sequelae of a minor injury.
33Therefore, on a balance of probabilities, I find that the applicant’s injuries are predominantly minor, and she remains within the MIG.
Interest
34As no plans are payable, no interest is owing.
ORDER
35For the reasons stated above I find that:
i. The applicant’s injuries are within the MIG.
ii. As the applicant is within the MIG, I have not considered if the plans in dispute are reasonable and necessary.
iii. No interest is owing.
Released: June 15, 2026
Sarah Guergis
Adjudicator