Licence Appeal Tribunal File Number: 24-006391/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:
Maria Reyes
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Dean Trinetti, Counsel
For the Respondent:
Lisa Armstrong, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Maria Reyes, the applicant, was involved in an automobile accident on April 15, 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, Co-operators 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 $1,533.72 for chiropractic services, proposed by Activa Scarborough in a treatment plan/OCF-18 (“plan”) submitted October 30, 2023?
iii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by HealthSpot Assessments Inc. in a plan submitted February 22, 2024?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated on a balance of probabilities that she sustained injuries as a result of the accident that warrant removal from the MIG.
4The applicant is entitled to treatment up to the MIG limits and it is not necessary to consider whether the disputed plans are reasonable and necessary.
5No interest is payable.
ANALYSIS
The applicant has not sustained accident-related injuries that warrant removal from the MIG
6Section 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 in accordance with the MIG. 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.”
7An 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.
Pre-existing condition
8I find that the applicant has not proven on a balance of probabilities that she had a documented pre-existing condition with compelling medical evidence showing that her pre-existing condition cannot be treated within the confines of the MIG.
9The applicant submits that her pre-existing major depressive disorder warrants removal from the MIG. The applicant submits that her major depressive disorder was exacerbated as a result of the accident.
10The respondent submits that the medical evidence does not support that the applicant’s pre-existing depression extended beyond 2020, nor that this condition prevents her recovery within the MIG.
11I find that although the applicant’s pre-existing marital difficulties and depression is documented by Dr. Gwendoline Rajakumar, family physician, and on February 21, 2019, she was diagnosed with major depressive disorder by Dr. Balaji Gopidasan, psychiatrist, there is no compelling medical evidence that the pre-existing condition of depression prevents the applicant from achieving maximal recovery under the MIG, which is required for removal on this ground under s. 18(2). In addition, the applicant reported to Viktoria Tolmatshov, social worker, during an assessment on November 21, 2024, that she did not have a pre- existing mental health condition before the accident. Therefore, the applicant has not met her onus to establish that she has a pre-existing psychological condition that prevents her recovery within the MIG limit.
Psychological impairment
12I find that the applicant has not demonstrated on a balance of probabilities that she has a psychological impairment as a result of the accident which warrants her removal from the MIG.
13The applicant submits that she should be removed from the MIG on account of her psychological impairments, which include symptoms of post-traumatic stress disorder, anxiety, major depressive disorder, emotional distress, nightmares, fatigue and low energy. The applicant further submits that she has been afraid to drive since the accident.
14The applicant relies on the psychological report dated November 26, 2024, by Viktoria Tolmatshov in support of her position. The applicant submits that during the virtual assessment on November 21, 2024, with Viktoria Tolmatshov (under the supervision of Cody Eriksen, clinical psychologist), she reported low and anxious mood, poor sleep, nightmares, stress and worry, memory and concentration impairment, increased appetite, social isolation and driving avoidance. In their report, Viktoria Tolmatshov and Cody Eriksen diagnose the applicant with major depressive disorder, and specific phobia.
15The respondent relies on the clinical notes and records (“CNRs”) of Dr. Rajakumar, which indicate that the applicant had anxiety and depression before the accident in the spring of 2019. The respondent submits that after the accident, on April 19, 2023, the applicant reported emotional distress to her doctor related to her mother’s death. The respondent submits that the applicant did not mention post-traumatic stress disorder as a result of the accident to her doctor until August 22, 2024, when she requested a referral for counselling.
16The respondent further submits that Viktoria Tolmatshov’s report is unreliable since it is based on the applicant’s self-reports. The respondent further submits that Viktoria Tolmatshov did not review the medical records except the Disability Certificate dated May 1, 2023, completed by Dr. Shane Kenning, chiropractor, which does not mention any psychological complaints. The respondent submits there is also a question whether Cody Eriksen was involved in the assessment in order to make a psychological diagnosis.
17I find that although the applicant reported to Viktoria Tolmatshov that she avoids driving and she is socially isolated, the CNRs of Dr. Rajakumar do not mention any psychological complaints after the accident until August 22, 2024, when the applicant requested a referral for counselling. I find that on August 22, 2024, Dr. Rajakumar also notes that the applicant was concerned about her family history of cancer, and there is no indication in the report that Viktoria Tolmatshov reviewed the records of Dr. Rajakumar.
18I find that the applicant reported several of the same symptoms to Dr. Rajakumar before the accident as she reported to Viktoria Tolmatshov after the accident, including financial stress, low mood, poor sleep, decreased concentration and increased appetite and weight gain. I am not persuaded by the report of Viktoria Tolmatshov that the applicant sustained psychological impairments as a result of the accident because she relied on the applicant’s self-reports, and she was not aware of the applicant’s pre-existing psychological symptoms. Therefore, the opinion of Viktoria Tolmatshov was skewed by her inaccurate view of the applicant’s baseline. In addition, as a social worker, Viktoria Tolmatshov is not qualified to make a psychological diagnosis, and it is not clear whether Cody Eriksen was involved in the assessment.
19Therefore, the applicant is not removed from the MIG on this basis.
The applicant is not entitled to the disputed treatment plans
20Since the applicant has not demonstrated that her accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plans are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful in demonstrating her entitlement to the disputed chiropractic services and psychological assessment, no benefits are owing and interest does not apply.
ORDER
22For the following reasons, I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit. The applicant is entitled to treatment up to the MIG limits and it is not necessary to consider whether the plans for chiropractic services and a psychological assessment are reasonable and necessary.
ii. Interest is not payable.
iii. The application is dismissed.
Released: February 2, 2026
Lisa Holland
Adjudicator