Joy Baysa v. Nordic Insurance Company of Canada, 2026 CanLII 6232

Citation: Baysa v. Nordic Insurance Company of Canada, 2026 ONLAT 24-000561/AABS

Licence Appeal Tribunal File Number: 24-000561/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:

Joy Baysa

Applicant

and

Nordic Insurance Company of Canada*

Respondent

DECISION

ADJUDICATOR: Gary Marshall

APPEARANCES:

For the Applicant: Dean Trinetti, Counsel

For the Respondent: Tahwila Husaini, Counsel

HEARD: By way of written submissions

OVERVIEW

1Joy Baysa, the applicant, was involved in an automobile accident on June 25, 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, Nordic Insurance Company of Canada, 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 that the MIG limits have been exhausted.

ii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by HealthMax Physio – North York in a treatment plan/OCF-18 (treatment plan) dated October 5, 2023?

iii. Is the applicant entitled to $2,667.92 for chiropractic services proposed by HealthMax Physio – North York in a treatment plan dated November 9, 2023?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant has demonstrated, on a balance of probabilities, that her injuries fall outside the MIG.

4The applicant is entitled to the psychological assessment, dated October 5, 2023.

5The applicant is entitled to the treatment plan for chiropractic services dated November 9, 2023.

6The applicant is entitled to interest on overdue payment of benefits.

PROCEDURAL ISSUES

7The respondent has requested that the Tribunal not accept the applicant’s submission of evidence, specifically, Clinical Noted and Records (CNRs) from the family physician, Dr. Sarwat Abdulla, from July 21, 2023, and September 14, 2023.

8The respondent argues that the CNRs was presented past the deadline for document exchange as outlined in the Case Conference Report and Order (CCRO). As such, it submits that the late addition of CNRs has prejudiced the respondent and is and it contravenes both the case conference adjudicator’s order and Rule 9.3.

9The applicant submits that the respondent is incorrect about the late submission. The applicant stated that the CCRO occurred on July 12, 2024, and the documents were served to the respondent on September 19, 2024, which was within the 90-day period of service. The applicant, in their response submissions referenced an email correspondence to the respondent, dated September 19, 2024, is contained within TAB 1, Page 1, of their submissions. I am unable to locate the referenced email in TAB 1, Page 1.

10However, while I am alive to the consideration there may be prejudice to the respondent with the admission of the CNR’s, the respondent has not demonstrated that there is actual prejudice. Further, I believe any prejudice to the respondent would be outweighed by prejudice to the applicant if the CNRs were excluded. I am denying the respondent’s request on this basis.

ANALYSIS

Applicability of the MIG

11I find that the applicant has demonstrated, on a balance of probabilities, that her injuries fall outside of the MIG.

12Section 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.”

13An 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 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.

14The applicant submits that she should be removed from the MIG due to chronic pain, specifically, chronic neck pain, back pain and hip pain.

Chronic Pain

15I find that the applicant has met her onus and demonstrated she suffers from a chronic pain condition that warrants removal from the MIG.

16Chronic pain conditions are not included in the minor injury definition. To establish that the applicant has a chronic pain condition, they must establish that their pain causes a functional impairment. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

17The applicant submits that she has chronic pain with functional limitations. To support her claim, the applicant has submitted the CNRs from a visit to Dr. Reynold-Earl Bales. Dr. Bales is a GP at a walk-in clinic attended by the applicant on June 26, 2023. The CNRs from Dr. Bales, dated June 26, 2023, mention upper back pain that travelled down to the lower back and the applicant complained of headaches.

18To further support her claim, the applicant has submitted the CNRs from a visit to her family doctor, Dr. Sarwat Abdulla, on July 21, 2023, where it is noted that the applicant complained of ongoing lower back pain. The applicant attended her family doctor again on September 14, 2023, where it was noted that that the applicant was attending physical rehabilitation for her ongoing lower back pain. On July 12, 2024, the applicant attended her family doctor for recurring right hip pain and ongoing lower back pain.

19The applicant also further supports her claim by referencing the January 30, 2024, IE Psychological assessment of Psychologist Dr. Rakesh K. Ratti. It is noted in this report that the applicant is unable to fully return to her housekeeping and self-care activities.

20The applicant also refers to the American Medical Association Guidelines (“AMA Guidelines”) for Chronic Pain.

21While the AMA Guides criteria for chronic pain were not incorporated into the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefit disputes in the absence of a diagnosis of chronic pain. I agree the AMA Guides are a useful analytical tool.

22The applicant submits that she has met criteria 2, 4 and 5 in the AMA Guides:

i. Excessive dependence on health care providers, spouse, or family.

ii. Withdrawal from social milieu, including work, recreation, or other social contracts.

iii. 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.

24With respect to the first criterion, the applicant argues that she has relied on her family doctor’s office and HealthMax Physio for ongoing medical management. She has also relied heavily on family to assist with housekeeping tasks. It was also noted in the IE Report of Dr. Ratti that she can only perform her pre-accident housekeeping tasks at a reduced frequency. With respect to the second criterion, the applicant argues that she has withdrawn from social milieu and noted that although she has been able to return to work, she has been unable to fully return to her housekeeping activities and self-care activities, as confirmed in the IE Report of Dr. Ratti. Finally, regarding the third criterion, the applicant submits that she has not restored her pre-injury level of function. The applicant argues that the clinical records indicate she continues to struggle with ongoing pain and anxiety that impacts her sleep, driving, housekeeping, and self-care.

25The respondent argues that the applicant sustained only soft tissue injuries, as confirmed by the January 3, 2024, s. 44 assessment conducted by Dr. Khaled, orthopaedic surgeon. Dr. Khaled diagnosed the applicant as having uncomplicated soft-tissue injuries without evidence of significant orthopedic or neurological sequela. The respondent submits that the applicant has not presented evidence of severe functionally disabling pain that is consistent and impacts her day-to-day functioning or ability to work.

26The respondent also referred to an addendum authored by Dr. Khaled, dated November 15, 2024, which reviewed new medical records including an MRI of the right shoulder dated March 10, 2024 and the clinical notes and records from the treating physician from prior to the accident. Dr. Khaled maintained his opinion that the applicant’s injuries were to be considered minor injuries and subject to the treating limit of the MIG.

27I find that the applicant has met her onus with respect to her claim that she suffers from a chronic pain condition with functional impairment as a result of the accident. In my view, the evidence tendered by the applicant supports her ongoing pain complaints and functional limitations to various medical practitioners, including the respondent’s IE assessors. In reaching my conclusion, I have placed significant weight on the CNRs of Dr. Sarwat Abdulla, family physician, and HealthMax Physio, which support that the applicant’s pain complaints continued, since the accident, up to and including July 2024, more than a year after the accident.

28I find that the applicant may be removed from the MIG based on persistent reports of pain beyond the time expected for the sequelae of minor injuries, accompanied by functional impairment. In this case, I find that the applicant has established on a balance of probabilities that she suffers functional impairments from persistent pain resulting from the accident. She has shown that removal from the MIG is warranted on this basis.

Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by HealthMax Physio dated October 5, 2023?

29The applicant is entitled to the plan proposing a psychological assessment in the amount of $2,460.00.

30The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

31The applicant stated that they continue to struggle from psychological injuries because of the subject accident. The applicant supports her assertion of ongoing psychological injuries by referencing her family doctor’s CNRs that assessed her with having anxiety with PTSD symptoms. The applicant’s family doctor recommended that the applicant attend with a psychologist and undergo psychotherapy. The applicant further supports her claim of psychological injuries by referring to the pre-screen report of Dr. Zubina Ladak, dated October 5, 2023. Dr. Ladak indicated, in the pre-screen report, that the applicant reported feeling frustrated, irritable, impatient, anxious, nervous, and stressed. Dr. Ladak recommended that she undergo a comprehensive psychological assessment. Finally, the applicant refers to the IE Report of Dr. Ratti which supported a finding of low to mild depression.

32The respondent argues that the assessment is not reasonable and necessary and that Dr. Ratti’s report, dated January 30, 2024, found that the applicant possibly experiences mild symptoms of anxiety but does not meet a diagnosis for any psychological disorders as per DSM-5-TR. Dr. Ratti concluded that the applicant did not require any psychological services and that her condition did not warrant removal from the MIG.

33I find that the clinical notes of the applicant’s family physician establish that there are reasonable grounds to believe a psychological assessment is reasonable and necessary as a result of the accident. The notes of Dr. Abdulla indicate that the worker has accident-related psychological issues, specifically anxiety with PSTD symptoms, which required a psychology referral and treatment.

34Based on the totality of the evidence before me, the psychological assessment is reasonable and necessary to determine the level of the applicant’s psychological impairment and what, if any, psychological treatment the applicant requires.

35I find, on a balance of probabilities, that the applicant is entitled to the treatment plan in dispute.

Is the applicant entitled to $2,667.92 for chiropractic services proposed by HealthMax dated November 9, 2023?

36The applicant is entitled to the plan for chiropractic services in the amount of $2,667.92.

37The applicant refers to the November 9, 2023, report of Dr. Somanath Thurkka from HealthMax Physio. The goals of the treatment plan are pain reduction, increase in strength, and to assist the applicant with the return to her activities of normal living. Dr. Thurkka indicated that the applicants’ impairments are not classified as minor injuries and the applicant’s accident-related injuries impact her ability to perform prolonged sitting/standing/walking, lifting, carrying, twisting, and daily activities.

38The respondent refers to the IE examination of Dr. Khaled conducted on January 3, 2024, which diagnosed the applicant with soft tissue injuries and opined that the applicant had already received appropriate facility-based rehabilitation and that prolonged facility-based treatment for such injuries is rarely recommended.

39Given the report of Dr. Thurkka and the corroborating evidence of chronic pain that removed the applicant from the MIG, I believe the applicant continues to suffer from ongoing physical injuries that would benefit from chiropractic services provided by HealthMax Physio.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits.

ORDER

41For the reasons outlined above I find:

i. The applicant has demonstrated, on a balance of probabilities, that her injuries fall outside the MIG.

ii. The applicant is entitled to the psychological assessment, dated October 5, 2023.

iii. The applicant is entitled to the treatment plan for chiropractic services dated November 9, 2023.

iv. The applicant is entitled to interest on overdue payment of benefits.