Asha De Alwis v. Belair, 2025 CanLII 119982

Citation: De Alwis v. Belair, 2025 ONLAT 23-013342/AABS

Licence Appeal Tribunal File Number: 23-013342/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:

Asha De Alwis

Applicant

and

Belair

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Bianca Crocetti, Paralegal

For the Respondent:

Jennifer Macko, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Asha De Alwis, the applicant, was involved in an automobile accident on November 8, 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, Belair, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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: $3,500.00 remains in the MIG as of the case conference.

2. Is the applicant entitled to $2,232.00 for Chiropractic Services proposed by Physiomed Oakville in a treatment plan/OCF-18 ('plan') dated October 6, 2022?

3. Is the applicant entitled to $1,904.00 for Chiropractic Services proposed by Physiomed Oakville in a plan dated December 13, 2021?

4. Is the applicant entitled to $2,740.00 for Chiropractic Services proposed by Physiomed Oakville in a plan dated July 12, 2023?

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

RESULT

3The applicant sustained a minor injury which is subject to treatment within the MIG limit. She is not entitled to the OCF-18s in dispute or interest.

ANALYSIS

The applicant’s accident-related impairments fit within the MIG

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor 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.”

5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on a balance of probabilities that her accident-related impairments fall outside of the MIG.

6I find the applicant’s submissions unclear with respect to why her accident-related impairments fall outside of the MIG. For instance, her submissions state that her injuries are not minor and that she relies on all the medical evidence in support of that position. The applicant then proceeded to summarize the contents of a disability certificate and the clinical notes and records (“CNRs”) of Dr. Young, her family doctor and referred to the records of Physiomed, her treating clinic. I note that the applicant relied on the Tribunal’s decisions in H.Q v. Security National Insurance Company (“H.Q.”), 2019, CanLII 63353 (ON LAT); and 17-004847 v. Aviva General (“17-004847”), 2018, CanLII 81912 (ON LAT) where the adjudicators determined that the insured’s impairments fell outside of the MIG due to chronic pain so this is where I will focus my analysis. The applicant also maintains that the respondent’s notice denying her benefits did not comply with s. 38(8) of the Schedule.

7The respondent argues that the applicant’s accident-related impairments fall within the definition of the MIG. It submits that the family doctor’s CNRs support that she has been diagnosed with lumbar sprain which establishes she sustained a minor injury. It also maintains that the applicant’s frequent visits to her family doctor post-accident were based on the advice of her lawyer, which is reflected in the notes. In addition, the applicant was referred to Dr. Smith, a physiatrist by her family doctor who diagnosed her with mechanical back pain which it purports also fits within the MIG. It relies on the insurer examination (“IE”) report of Dr. Khalid, medical doctor December 28, 2022, and addendum report dated May 10, 2023, who diagnosed the applicant with soft tissue injuries. It also relies on the IE report of Dr. MacKenzie, psychiatrist dated June 1, 2023, who found no diagnosable psychological impairment as a result of the accident. It also asserts that its notice to the applicant denying the benefits complied with s. 38(8) of the Schedule.

8I find the applicant sustained a minor injury for the following reasons.

Chronic Pain

9First, although I acknowledge that the applicant regularly visited her family doctor following the accident, the doctor diagnosed the applicant with lumbar sprain which I find falls within the definition of the MIG. The applicant attended her family doctor’s approximately seven times in 2022, where she complained of ongoing back pain and on a few occasions reported difficulty with sitting for long periods and driving. The doctor’s repeated diagnosis was lumbar sprain. On March 13, 2023, she complained about shoulder pain for the first time which I find she has not linked to the accident because there was no reference to any shoulder injury or complaints prior to this date. I note that the applicant continued to make regular visits to her family doctor throughout 2023 and into 2024 where she complained about ongoing back pain.

10Second, the applicant’s family doctor referred her to Dr. Smith, physiatrist who diagnosed her with mechanical back pain. I find this diagnosis also fits within the MIG.

11Third, I find the CNRs of Physiomed from January 21, 2023 to May 6, 2024, establish that the applicant regularly attended treatment. Although these notes support that the applicant regularly reported back pain, I find these records are also based on the applicant’s self-reports. Further, there are no progress reports outlining any physical examinations which note that the applicant has any physical limitations because of her ongoing back pain. It is well established law that to establish chronic pain there must be evidence of functional impairment to be removed from the MIG.

12Fourth, I find that the applicant did not make meaningful submissions regarding how the evidence relied upon supports her position that she should be removed from the MIG. For example, the applicant’s submissions did not state what injuries support removal from the MIG. I find that summarizing medical documents without providing legal arguments in support of the evidence insufficient. In addition, the applicant relied on the Tribunal’s decisions in H.Q. and 17-004847 without providing arguments as to how these decisions support her position. The respondent argues that the scenarios in the decisions relied upon by the applicant are distinguishable from this matter. For example, in HQ the insured had a chronic pain diagnosis, had been referred to a chronic pain clinic and had severe limitations regarding walking and standing. Further, in 17-004847, the insured had a diagnosis from a chronic pain specialist. I agree that these decisions are distinguishable because in this case I do not have any evidence of a chronic pain diagnosis from an expert. In addition, I also find an absence of submissions articulating how these decisions are relevant to the applicant’s case.

13Finally, the respondent relies on the IE reports of Dr. Khaled who concluded that the applicant sustained soft-tissue injuries which can be treated in the MIG. The doctor reviewed medical records and conducted a clinical interview and physical examination in coming to this conclusion. Dr. Khaled’s reports also noted that the applicant is independent with personal care, can perform light housekeeping tasks, has resumed driving and works full-time doing normal duties. I find that Dr. Khaled’s reports establish that despite having ongoing back pain the applicant does not have any functional limitations as a result. I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain which remove her from the MIG.

Psychological Impairment

14The applicant did not make any submissions or refer to any case law to support that she should be removed from the MIG because of any accident-related psychological impairment. I note that a few of the family doctor’s CNRs refer to driving anxiety and PTSD so I will address this issue for completeness. The respondent relies on the IE of Dr. MacKenzie who found no evidence that the applicant had any accident-related psychological impairment. The applicant reported to Dr. MacKenzie that her mood is generally “happy”. Moreover, her energy is good, she enjoys gardening and has continued to work as an accountant. The applicant reported difficulty sleeping on occasion due to pain and that she is more cautious driving post-accident. However, Dr. MacKenzie noted that the applicant still drives and does not have any functional limitations in this regard. I accept the doctor’s opinion in the absence of persuasive evidence from the applicant that she sustained a psychological impairment as a result of the accident.

15For the above-noted reasons, I find the applicant has not met her onus in proving on a balance of probabilities that she suffers from either chronic pain or a psychological impairment which warrants removal from the MIG.

16However, the applicant also argues that the respondent did not comply with s. 38(8) of the Schedule in its notice denying the OCF-18s in dispute which I will address next.

I find the respondent’s denial complied with s. 38(8) of the Schedule.

17Section 38(8) of the Schedule sets out that within 10 business days of receipt of an OCF-18, insurers are required to provide an insured with a notice, identifying the goods and services described in the treatment plan that it agrees to pay for and the medical and all other reasons why it considers the goods and services not to be reasonable and necessary. In addition, if an insurer believes that the MIG applies it shall indicate so in its denial pursuant to s.38(9). The consequence of an insurer’s failure to comply with s. 38(8) and (9) is that the benefits are payable as set out in s.38(11). If an insurer fails to advise that it believes that the MIG applies to an OCF-18, then an insurer must pay for incurred treatment starting on the 11th business day until a proper notice is provided.

18The applicant submits that the respondent failed to comply with s. 38(8) of the Schedule in its letter dated January 11, 2023 denying all the OCF-18s in dispute. In particular, the notice was boiler plate, failed to provide a medical reason and the adjuster provided their own opinion that the MIG applies.

19The respondent maintains that its denials of the OCF-18s complied with s. 38(8) of the Schedule. It states that its notice provided a medical reason in that it outlined the findings of Dr. Khaled who found that applicant sustained soft-tissue injuries which fall within the MIG. It also asserts that its notice referred to each denied OCF-18 and explained why Dr. Khaled determined that they are not reasonable and necessary.

20I find the respondent’s denial dated January 11, 2023 complied with s. 38(8) of the Schedule. The letter outlined the definition for what constitutes a minor injury. It then advised the applicant that further to its letter dated November 18, 2022, it was in receipt of the IE report of Dr. Khalid (and attached the report to the letter). It advised that based on the report, the applicant’s injuries qualify for treatment under the MIG. The letter then stated that it was unable to fund the medical goods and services outlined in the three OCF-18s and provided the dates and amounts. I find the letter provided the applicant with the medical and other reasons for its denial as it quoted from the IE report of Dr. Khalid, which indicated that the doctor determined that she sustained sprains and strain impairments, which are considered minor injuries as per the Minor Injury Guideline. It then quoted from Dr. Khalid’s reasons for why the OCF-18s were not considered to be reasonable and necessary.

21I find the respondent’s denial letter complied with s. 38(8) of the Schedule because it clearly explained what OCF-18s were being denied along with the amounts and dates they were submitted. I also find it provided a medical reason which was based on the findings of its IE assessor who determined that the applicant’s accident-related impairments were minor and fit within the MIG. I find the applicant’s argument that the denial was based solely on the adjuster’s opinion to be unsupported because the notice quoted extensively from the report of the IE assessor which is the medical reason for the denial. I find the notice provided the applicant with sufficient reasons for the denial so that she could make an informed decision on whether to dispute the denial.

The applicant is not entitled to the three OCF-18s for chiropractic treatment in dispute.

22The Tribunal’s case conference report noted that as of May 24, 2024, $3,500.00 remained in the MIG limit. Neither party’s submissions addressed whether anything was paid within the MIG limits or what amount remains. Nor did the applicant submit any evidence supporting that she has incurred any treatment within the MIG.

23All three of the disputed OCF-18s seek treatment outside of the MIG and were denied by the respondent on that basis. Since I have determined that the applicant sustained a minor injury, I find it unnecessary to address whether the disputed OCF-18s are reasonable and necessary. I conclude that the applicant is entitled to seek treatment within the $3,500 MIG limit.

The applicant is not entitled to interest.

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find the applicant is not entitled to interest because I have not determined that any payments are overdue.

ORDER

25For the above-noted reasons, I find the applicant sustained a minor injury which is subject to treatment within the MIG limit. She is not entitled to the OCF-18s in dispute or interest.