Licence Appeal Tribunal File Number: 24-003400/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:
Elaine Flesias
Applicant
and
Northbridge General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Thomas Dugas
For the Respondent:
Thomas Kurasiewicz
HEARD:
By way of written submissions
OVERVIEW
1Elaine Flesias, the applicant, was involved in an automobile accident on November 17, 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, Northbridge 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:
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 limit (“MIG”)?
Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from March 9, 2022 to March 14, 2024?
Is the applicant entitled to the assessments and treatments proposed by MyoHealth Rehabilitation and Wellness Centre, as follows:
i. $2,486.00 for a psychological assessment, in a treatment plan submitted February 7, 2022;
ii. $3,197.49 for physiotherapy services, in a treatment plan submitted February 1, 2022; and
iii. $840.20 for massage therapy, in a treatment plan submitted February 9, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not established accident-related impairments that warrant removal from the MIG;
ii. The applicant is not entitled to income replacement benefits; and
iii. The applicant is not entitled to the treatment plans in dispute, an award or interest.
PROCEDURAL ISSUES
4On March 19, 2025 the respondent filed a Notice of Motion seeking to dismiss the applicant’s application on the grounds that she had abandoned her application. The respondent argued that the applicant’s written hearing submissions were due on March 18, 2025 and had not yet been submitted. Accordingly, the respondent requests that the application be dismissed without a hearing. The Tribunal ordered that the respondent’s motion be heard as part of these written hearing proceedings.
5The respondent’s request to dismiss the application as abandoned, is denied.
6Although I agree with the respondent that the applicant’s written hearing submissions were not submitted on March 18, 2025, they were submitted the following day, on March 19, 2025. Given that the applicant’s submissions were filed, albeit late, the applicant has clearly not abandoned her claim. Moreover, I note that the respondent was able to provide its responding submissions by April 3, 2025, the deadline stipulated in the Case Conference Report and Order. The respondent has not provided any submission on, or established any prejudice from the minimal one-day delay. However, the applicant would suffer significant prejudice if her application were dismissed in its entirety. Accordingly, the respondent’s motion is denied.
ANALYSIS
Minor Injury Guideline
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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 person 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.
9The applicant submits that she should be removed from the MIG on the grounds of chronic pain and a psychological impairment.
The applicant has not established accident-related chronic pain
10The applicant submits that she suffers from chronic pain as a result of the accident. She argues that the clinical notes and records (“CNRs”) of her family physician Dr. Gliklich and her treating chiropractic clinic, establish her ongoing pain post-accident. The applicant also relies on the physiotherapy treatment plans, to argue that the fact that she still required treatment, months after the accident, is evidence of chronic pain.
11The respondent relies on its s. 44 physiatry assessment to argue that the applicant has not sustained chronic pain as a result of the accident. Dr. Zabieliauskas diagnosed the applicant with a cervical strain, WAD I to II and possibly a mild lumbosacral strain, and found that the applicant’s injuries meet the definition of a minor injury. The respondent also argues that the CNRs of the applicant’s family physician do not reveal chronic pain or functional impairments as a result of the accident.
12I find that the applicant has not met her evidentiary onus to establish accident-related chronic pain.
13The CNRs of the applicant’s family physician Dr. Gliklich reveal that the applicant attended Dr. Gliklich’s office the day after the accident, and was diagnosed with multiple soft tissue injuries and headaches. The applicant had also reported some neck, shoulder and back pain again on October 25, 2022 and was referred for an MRI of the SI joints. The imaging was normal with no sacroiliitis. The applicant does not direct me to any other CNR entry where accident-related pain or impairments were reported, or where the applicant was diagnosed with chronic pain by her family doctor. The applicant also reported to the respondent’s assessors that she took prescription pain medication for only a month post-accident, and that she was now only taking over the counter Tylenol a few times a week.
14The respondent’s physiatry assessor Dr. Zabieliauskas did not find any evidence of an ongoing physical impairment, and that the applicant had full range of motion in her neck and upper extremities and good range of motion in the lumbar spine and lower extremities. The applicant had also reported returning back to work as a customer service representative at Sport Chek.
15I find that the medical evidence submitted by the applicant does not establish chronic pain. The CNRs reveal a limited number of pain reports to Dr. Gliklich, and the applicant does not direct me to any diagnosis of chronic pain made by her family doctor or treating physician. Nor does the applicant direct me to evidence of functional impairments as a result of the accident. While the applicant attended physiotherapy for a period post-accident, she also continued being a full-time university student and returned to work part-time at Sport Check. Therefore, I find that the applicant has not established chronic pain as a result of the accident.
The applicant has not established a psychological impairment
16To establish accident-related psychological impairments, the applicant relies on the OCF-18 dated February 7, 2022. She submits that the fact that a psychological assessment is being requested, substantiates the presence of psychological symptoms. The respondent relies on its s. 44 psychological assessment report dated October 19, 2022. Dr. Rubenstein found that the applicant did not meet the threshold for a diagnosis of any psychological impairment as a result of the accident.
17I find that the applicant has not met her onus to prove, on a balance of probabilities, that she sustained a psychological impairment as a result of the accident. The applicant does not direct me to any CNR entry where she reported psychological symptoms to her family physician or was diagnosed with a psychological impairment. Rather, she solely relies on the submitted treatment plan. However, I agree with the reasoning in the Tribunal decisions cited by the respondent that an OCF-18 alone, without corroborating medical evidence, is not sufficient evidence to establish a psychological impairment.
18Further, the respondent’s psychological assessor, Dr. Rubenstein conducted a clinical assessment and psychological testing, and found that there was no evidence of a psychological impairment as a result of the accident. I find that the applicant has not led medical evidence to refute the findings of Dr. Rubenstein.
19For the reasons above, I find that the applicant has not established accident-related impairments to warrant removal from the MIG.
20As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Income Replacement Benefits (“IRBs”)
21To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
22I find that the applicant has not established entitlement to IRBs.
23In her submissions, the applicant has provided details of her employment at TD as a Senior Finance Analyst, earning approximately $70,375.00 annually. She argues that as a result of the accident, she attempted to return to work on a part-time basis, eventually resuming full-time work in August 2022, but she continued to request days off due to stress. However, the applicant has not provided any evidence in support of these submissions, rather, the applicant’s evidence contradicts these submissions.
24I agree with the respondent that the OCF-1 provided by the applicant indicated that she had been employed part-time at Sport Check since 2020, and that she had reported to both of the respondent’s assessors that she worked part-time at Sport Check. The applicant was also a university student. The applicant has not provided any evidence of employment at TD as a Senior Finance Analyst.
25Accordingly, the applicant has not provided any submissions or evidence detailing the essential tasks of her employment as a customer representative at Sport Check, as required by s. 5(1) of the Schedule. The applicant also has not provided submissions on which tasks she is unable to perform and to what extent she is unable to perform them, nor have I been directed to medical evidence of functional impairments, or how they impeded the applicant’s employment at Sport Check. Further, the only Disability Certificate (OCF-3) provided by the applicant does not support her claim to entitlement of IRBs, since it states that the applicant does not suffer a substantial inability to perform the essential tasks of her employment.
26Accordingly, I find that the applicant has not met her onus to prove, on a balance of probabilities that she is entitled to IRBs for the period in dispute.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.
Award
28The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the applicant has not established that any payment of benefits was unreasonably withheld or delayed. As such, the respondent is not liable to pay an award.
ORDER
29I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to IRBs;
iii. The applicant is not entitled to the disputed treatment plans, an award nor interest.
30The application is dismissed.
Released: November 6, 2025
Ulana Pahuta
Adjudicator