Citation: Fletcher v. Belair Insurance Company Inc., 2025 ONLAT 24-000389/AABS

Licence Appeal Tribunal File Number: 24-000389/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:

Alphanso Fletcher

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

George Campbell, Paralegal

For the Respondent:

Carman Lee, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Alphanso Fletcher, the applicant, was involved in an automobile accident on March 17, 2020, 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, Belair Insurance Company Inc., 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 limit?

ii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from March 24, 2020 to January 9, 2024?

iii. Is the applicant entitled to the assessments and services proposed by Health Max, as follows:

1. $4,401.57 for physiotherapy services, in a treatment plan dated September 24, 2020;

2. $3,827.67 for chiropractic services, in a treatment plan dated August 24, 2022;

3. $4,426.00 for aqua therapy services, in a treatment plan dated October 13, 2022;

4. $2,200.00 for a psychological assessment, in a treatment plan dated September 22, 2022; and

5. $2,460.00 for an orthopedic assessment, in a treatment plan dated October 21, 2022?

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

3I note that the Case Conference Report and Order (“CCRO”), dated July 3, 2024, incorrectly refers to the date of the accident as August 13, 2020. The correct date of the accident as confirmed on the Application for Accident Benefits is March 17, 2020. In addition, under issue 2, the CCRO lists the issue as, “Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from August 13, 2020 to January 9, 2024?”. The respondent’s submissions indicate that the claim period is from March 24, 2020 to January 9, 2024. Therefore, I have amended the issue in dispute accordingly.

RESULT

4I find that the applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

5I find that the applicant is not entitled to the treatment plans in dispute.

6I find that the applicant has failed to provide sufficient evidence to determine the quantum of IRBs payable for the period from March 20, 2020 to June 27, 2022. I further find that the applicant is not entitled to IRBs from June 27, 2022 and ongoing.

7I find that the respondent is not required to pay an award.

8I find that the applicant is not entitled to interest.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

9I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

10Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

11An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

12The applicant submits that the impact of the accident, caused him immediate pain to his neck, left shoulder, left arm and full back. The applicant submits that his back pains continued to make it difficult for him to do his usual recreational activities as well as his daily activities. He claims that he could no longer return to boxing, and he was unable to put on his socks, stand or lie down for extended periods. In addition, the applicant submits that his accident-related injuries prevented him from returning to his pre-accident employment.

13The applicant submits that following the accident he began attending treatments at HealthMax Physio. He submits that he sought a claim for medical benefits by submitting treatment plans for treatment. He further submits that a copy of his family doctor’s records was sent to the respondent on December 3, 2020. The applicant submits that the respondent failed to observe his physical and psychological impairments or approve or pay for the submitted treatments, despite the compendium of diagnostic evidence or recommendations by his treating practitioners and the respondent’s own insurer assessors.

14The applicant submits that Dr. Peter Ramos, Kinesiologist, in his Functional Abilities Evaluation Insurer Examination (“IE”) report, dated May 26, 2022, noted the applicant’s current impairments as a result of the accident and confirmed postural difficulties and balance issues. The applicant submits that the IE report of Dr. David Mula, primary care physician, dated May 26, 2022, opined that he presented with neurological complaints with obvious pain in his left upper extremities and lower back. He was diagnosed with carpal tunnel syndrome. Dr. Mula further stated that the applicant’s prognosis was poor in light of the duration of symptoms still existing and is consistent with the mechanism of the accident. The applicant further submits that the Executive Summary report of Dr. Todd Delamare, chiropractor, dated May 26, 2022, made a recommendation for neurological and psychological intervention with electrophysiological studies.

15The respondent submits that the applicant has not met his burden of proving that his injuries are not minor. It submits that the applicant has failed to provide any submissions to support on what specific basis he should be removed from the MIG. It argues that there are no medical records or opinions referenced by the applicant to support that he suffered any accident-related injuries outside of the MIG. It argues that the applicant cannot simply file evidence and leave it to the Tribunal to connect the dots and make his case. The respondent therefore submits that none of the applicant’s submissions should be considered by the Tribunal as there is no evidentiary basis for them.

16The respondent further submits that no updated records of Dr. Monique Martin, family physician, have been received since February 2022. In addition, the applicant has not provided any CNRs from his physical therapy clinic to assist in determining the applicant’s impairment in function or whether the applicant has obtained any of the recommended treatment. The respondent submits the applicant has failed to comply with the CCRO which ordered production of the updated records of Dr. Martin and the CNRs from HealthMax Physio and an adverse inference should be drawn.

17The respondent relies upon the IE report of Dr. Nancy Abram, general practitioner, dated December 2, 2020, which diagnosed the applicant with WAD-1 injury and a lumbosacral sprain/strain and concluded that his injuries fell within the MIG. It further relies upon the IE reports of Dr. Mula, dated May 26, 2022 and October 6, 2022 that concluded that the applicant sustained soft tissue injuries falling within the definition of the MIG.

18The respondent submits that with respect to the applicant’s submission that Dr. Delamere recommended neurological and psychological intervention with electrophysiological studies, neither Dr. Delamere nor any other physician recommended psychological intervention. With respect to the neurological consultation and the electrophysiological studies, it was Dr. Mula who recommended that these be undertaken through a family doctor referral to investigate left upper extremity numbness and weakness complaints. The respondent submits that Dr. Mula did not conclude that these complaints were caused by the accident. The respondent submits that there is no evidence that a referral was ever made by the family physician and therefore there is no evidence to support a neurological diagnosis nor that such diagnoses, if any, were as a result of the accident.

19In the applicant’s reply submissions, he provides a copy of the CNR from Dr. Martin, family physician, dated March 23, 2020, noting that he is assessed with “MSK injury, and psych post MVC”. The CNR states “normalized and conservative care. Consider work limitations on straining back further importance of staying active, Tylenol advice, RICE ideally massage, physio – but all are closed”.

20I find that the applicant has not demonstrated that he suffers from a chronic pain condition or a psychological impairment as a result of the accident that would warrant removal from the MIG. My reasoning is based on the following findings.

21I agree with the respondent that the applicant has not identified in his submissions what specific impairments he believes fall outside of the scope of the MIG. While he states in his submissions that the respondent has failed to identify his physical and psychological impairments, he has not specifically set out the basis on which he should be removed from the MIG. I agree with the respondent that it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s submissions in the reports provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at paragraph 50.

22I find that the applicant has not made any specific submissions that he suffered a chronic pain condition as a result of the accident. I find that the applicant’s submission that his back pain continued to make it difficult for him to do his usual recreational activities as well as his daily activities, is not supported by any medical evidence. In addition, the applicant has not made any submissions or mention of the specific psychological impairment that he claimed to suffer as a result of the accident.

23I find that even if I accept that the applicant suffered ongoing pain following the accident, pain alone is insufficient to remove the applicant from the MIG, as the pain must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. I find that the applicant has not proved on a balance of probabilities that his ongoing pain was of a significant level or was accompanied by some functional impairment or disability. I find that the applicant has not provide sufficient evidence to demonstrate that his pain prevented him from pursuing work, family or recreational needs.

24The applicant in his reply has provided a copy of the CNR of his family physician, dated March 23, 2020. While the CNR assesses him with a musculoskeletal injury and psychological injury post-accident, there are no further particulars provided as to what these injuries are. The note states that he should consider work limitations that do not strain his back and states that ideally, he would attend for physiotherapy and massage therapy, but the clinics are closed. No further CNRs are referenced by the applicant in his submissions.

25I draw an adverse inference from the applicant’s failure to comply with the Tribunal’s order to produce the updated CNRs of his family physician and the CNRs of the physical therapy clinic he attended. The applicant has not provided an explanation in response to the respondent’s submissions. I therefore conclude that either the records do not exist, or they would not assist the applicant’s position regarding his claim.

26I find that the applicant’s accident-related impairments fall squarely within the definition of minor injuries under the Schedule based on the limited medical evidence submitted.

27I find upon review of the IE report of Dr. Abram, dated December 2, 2022, that she confirmed that the applicant’s injuries sustained in the accident are minor injuries and fall within the MIG. She concluded that there was no evidence of any current impairment as a result of the injuries sustained in the accident. On the evidence, I see no reason to interfere with Dr. Abram’s opinion and it is not rebutted by any other medical opinion.

28I find upon review of the IE reports of Dr. Mula, dated March 26, 2022, that this report was prepared to assess the applicant’s entitlement to post-104-week IRBs. Dr. Mula concluded that the applicant currently presents with minor injuries. While Dr. Mula recommended that the applicant undergo a neurological consultation and electrophysiological studies of his left upper extremity, there is no evidence that the applicant subsequently underwent such testing. Despite the applicant’s submission that the respondent subsequently denied a treatment plan for a neurological assessment, no such treatment plan has been submitted as evidence for review by the Tribunal.

29I find upon review of the Executive Summary report of Dr. Delamere, dated May 26, 2022, that there was no recommendation for a psychological assessment as submitted by the applicant. I find that the only recommendation mentioned in this report is that of Dr. Mula for a neurological consultation.

30For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

Entitlement to the Treatment Plans in Dispute

31As I have found that the applicant has failed to prove that his 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.

32The applicant submits that the respondent is responsible for his medical treatment because it failed to comply with s. 38(8) of the Schedule. No further submissions or particulars were provided by the applicant in respect to this submission.

33I find that as the applicant has not made any submissions as to the how the respondent failed to comply with s. 38(8) of the Schedule, the applicant has not met his burden of proving that the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule.

Entitlement to an Income Replacement Benefit

Background

34The applicant submitted an Application for Accident Benefits (“OCF-1”), dated March 25, 2020, that indicates he was employed as a baggage handler at Menzies Aviation, from February 2020 to present. It states that he worked 40 hours per week and earned a gross income of $640.00 for the period. He also provided a Disability Certificate, submitted on May 12, 2020, confirming that he suffers a substantial inability to perform the essential tasks of his employment as a result of his accident-related injuries.

35By letter dated May 22, 2020, the respondent advised the applicant that he was entitled to an IRB. Pursuant to s. 33 of the Schedule, it requested an Employer’s Confirmation Form (OCF-2). An OCF-2 was never provided by the applicant.

36On April 21, 2022, the applicant provided the respondent with a copy of his Canada Revenue Agency Notices of Assessment for 2020 indicating total income of $13,257.00 and 2021 indicating total income of $2,492.00. On June 8, 2022, he provided the respondent with a copy of his Bank of Montreal Activity Statements for the period from January to December 2021. On June 28, 2022, he provided the respondent with his T4 from Menzies Aviation indicating employment income of $257.92 and T4E for 2020 indicating total benefits paid of $13,000.00.

37By letter dated June 17, 2022, the respondent advised the applicant that his IRB is stopped effective June 27, 2022, based on the May 26, 2022 IE reports completed by Ms. Kelly Ann-Smith, vocational consultant; Mr. Peter Ramos, kinesiologist; and Dr. David Mula, primary care physician, which concluded that he does not suffer a complete inability to engage in any employment for which he is reasonably suited by education, training or experience as a result of the injuries he suffered in the accident.

38By letter dated July 5, 2022, the respondent confirmed that the applicant was entitled to receive an IRB for the period of March 24, 2020 to June 27, 2022, however, it was unable to determine the applicant’s weekly IRB as it had not received sufficient information to date. It requested the 2019, 2020 and 2021 completed tax returns including all T slips and an explanation of various bank deposits.

39The applicant provided the respondent with an Income Replacement Benefit Report, prepared by Durrani & Associates Inc, dated June 8, 2023. The report confirms that the applicant worked two days as a full-time Ramp Agent on February 11 and 12, 2020 for total earnings of $256.00. At the time of the accident, he was off work for a personal leave and therefore he did not work in the four weeks preceding the accident. Given that he was away on personal leave during the four weeks preceding the accident, his income is $Nil. As a result, the report indicates that his IRB would be based on the 52 weeks prior to the accident, however this period of time would only capture two days of work, or $4.92 per week in income, leading to an IRB entitlement of only $3.45 per week. The report then calculates a theoretical IRB calculation which assumed that the applicant had not been on personal leave and worked full-time hours for the four weeks prior to the accident, earning $16.00 per hour, leading to entitlement to an IRB of $400.00 per week.

40The CCRO dated July 3, 2024, ordered the applicant to provide the respondent with the 2019, 2020, and 2021 completed tax returns including all T4 slips and the explanation for various bank deposits.

IRBs payable from March 20, 2020 to June 27, 2022

41I find that the applicant has not proven the quantum of IRBs payable for the period from March 20, 2020 to June 27, 2022.

42The applicant submits that despite providing his OCF-1, OCF-3 and medical records to the respondent, the respondent failed to pay him IRBs. He relies on the IRB Calculation report in support of his entitlement to an IRB in the amount of $400.00 per week.

43The respondent acknowledges that the applicant is entitled to an IRB from March 24, 2020 until June 27, 2022, the date of stoppage of his IRBs. However, the respondent submits that no payments have been made for this period because the respondent has been unable to calculate quantum due to the absence of necessary and relevant documentation and information from the applicant to support a proper calculation. The respondent asks that an adverse inference be drawn due to the applicant’s non-compliance with the CCRO requiring production of financial documentation which has not been provided to date.

44With respect to the IRB Calculation report, dated June 8, 2023, the respondent disagrees with the calculations made and the assumptions made in the report. It submits that the proper pre-four-week period is February 18, 2020 to March 17, 2020 where no income was earned during this period. If the gross weekly income was calculated based on the 52-week pre-accident period, it would equal a gross weekly income of $4.92 per week if there was no post-accident income earned. The respondent submits that the Schedule does not provide for the theoretical calculation made in the report.

45The respondent further submits that the applicant has not provided any submissions with respect to his post-accident employment or income. It refers to the CNR of Dr. Martin dated February 8, 2022, which indicates that the applicant missed a scheduled MRI scan because of work-related reasons.

46I find that while the respondent agreed that the applicant was entitled to IRBs for the period of March 20, 2020 to June 27, 2022, the applicant has not met his burden of providing sufficient documentation or evidence that allows me to calculate the quantum of IRBs payable during the entitlement period. Despite the respondent’s request for additional information by way of letters and an order by the Tribunal, the applicant has not complied with these requests or provided an explanation for his non-compliance.

47I further give no weight to the IRB Calculation Report. Section 7 of the Schedule requires a determination of the applicant’s “gross weekly employment income” based on his income earned in either the 4-week or 52-week period before the accident. Pursuant to s. 7(3)(a) of the Schedule, the respondent is entitled to deduct 70 percent of any gross employment income received by the insured person after the accident and during the period in which the insured person is eligible to receive IRBs. I find that the applicant is not permitted to use a theoretical calculation and assume he had not been off work and worked full time hours to calculate an IRB. I further find that even if I accept the report’s conclusion that based on the 52-week period the applicant would be entitled to an IRB at $3.45 per week, the applicant has still not provided any evidence to support that he did not earn any post-accident income during this period in order to calculate his entitlement. I note that the CNR of Dr. Martin dated February 8, 2022, indicates that the applicant missed a scheduled MRI scan because of work-related reasons which would indicate that the applicant was working during the period he is claiming entitlement to an IRB.

48For the reasons outlined above, I find that the applicant has not met his burden on a balance of probabilities of proving the quantum of IRBs payable for the period from March 20, 2020 to June 27, 2022.

IRBs payable post-104 weeks

49I find that the applicant is not entitled to post-104-week IRBs.

50To be eligible to receive IRBs 104 weeks post-accident, pursuant to s. 6(2)(b) of the Schedule, an applicant must meet the stricter test of being completely unable to engage in any employment for which he is reasonably suited by education, training or experience.

51The applicant submits that he is entitled to post-104 IRBs based on his AB Statement and his medical records which support that he was unable to engage in any activities which he would normally do and as time progressed, he deteriorated and became more depressed.

52The respondent denied entitlement to post-104-week IRBs, by letter dated June 17, 2022, with the termination of benefit effective on June 27, 2022. The decision was based on the multidisciplinary IE reports and a determination that the applicant did not meet the test for IRBs.

53I find that the applicant has failed to prove on a balance of probabilities that he is entitled to post-104-week IRBs. The applicant provided no submissions or evidence to support that he suffered a complete inability to engage in any employment for which he is suited by education, training or experience. Simply submitting that he deteriorated and became more depressed is not sufficient evidence of a disability. The applicant has not provided the Tribunal with any medical evidence to support his submission.

54I give weight to the IE reports relied upon by the respondent where the assessors concluded that he did not suffer a complete inability. Ms. Ramos determined that the applicant demonstrated the ability to perform work activities within the medium-level of physical requirements without any functional limitations. Ms. Smith in her Vocational Assessment noted that the applicant had completed a high school diploma and a welding program through a trade school. She identified suitable occupational options for the applicant based on his education, training and experience. Dr. Mula concluded that the applicant’s ability to perform work activities at a medium level accorded with the occupational options identified for the applicant which had either “light” or “limited to light” physical requirements. On the evidence, I see no reason to interfere with the opinions of the IE assessors as they are not rebutted by any other medical opinion.

55For the reasons outlined above, I find that the applicant has failed to prove on a balance of probabilities that he is entitled to post-104-week IRBs.

Interest

56Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Award

57The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

58For the reasons outlined above, I find:

i. The applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant has failed to provide sufficient evidence to determine the quantum of IRBs payable for the period from March 20, 2020 to June 27, 2022;

iv. The applicant is not entitled to IRBs from June 27, 2022 and ongoing;

v. The respondent is not required to pay an award;

vi. The applicant is not entitled to interest; and

vii. The application is dismissed.