Theresa Bennie v. Belair Insurance Company Inc., 2025 CanLII 122667

Citation: Bennie v. Belair Insurance Company Inc., 2025 ONLAT 24-003062/AABS

Licence Appeal Tribunal File Number: 24-003062/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:

Theresa Bennie

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Linda Spurrell, Paralegal

For the Respondent: Elisa Cogan, Counsel

HEARD: In Writing

OVERVIEW

1Theresa Bennie, the applicant, was involved in an automobile accident on September 28, 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 Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The respondent has requested that the Tribunal not accept the applicant’s submission of evidence, specifically, Clinical Notes and Records from the Family Physician, Dr. Tupur Rahman, from March 15, 2022 to January 21, 2025.

3The respondent argues that the CNR’s were 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 CNR’s has prejudiced the respondent by not allowing an opportunity to schedule a s.44 examination.

4The applicant does not specify why the Clinical Notes and Records were delayed, but states “the respondent knew the applicant was obtaining the updated records of Dr. Tupur Rahman. If the respondent wanted an updated insurer examination with respect to the issues in dispute, they could have scheduled one as they were in possession of the Psychological Assessment done by Dr. Tony Toneatto, Clinical Psychologist.”

5I do note the respondent had no document exchange requests for the applicant, as per the CCRO. However, the CCRO stipulated a final document exchange deadline of 90 days after the Case Conference. As the Case Conference was held July 23, 2024, the final deadline would have been October 20, 2024. The updated CNR’s were not shared with the respondent until March 7, 2025.

6While I am alive to the consideration there may be prejudice to the respondent with the admission of the CNR’s, I am of the opinion that this would be outweighed by prejudice to the applicant with their removal. Furthermore, late submission notwithstanding, I do note that the respondent had approximately five weeks to review the CNR’s before respondent submissions were due.

7For this reason, I find that the CNR’s shall be entered into evidence.

ISSUES

8The 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 $2,846.47 for a chronic pain assessment proposed by Medex Assessments Inc. in treatment plan/OCF 18 (‘plan”) submitted on June 14, 2023?

iii. Is the Applicant entitled to $1,262.00 for a chiropractic services, proposed by Justine Blainey Wellness in a plan submitted February 8, 2022?

iv. Is the Applicant entitled to $2,704.70 for psychological services, proposed by Medex Assessments Inc. in plan submitted June 26, 2023?

v. Is the Applicant entitled to $2,592.33 for psychological assessment proposed by Medex Assessments Inc in a plan submitted February 3, 2023?

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

RESULT

9The applicant has not met the onus to be removed from the Minor Injury Guideline (the MIG).

10As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. No interest is owing.

ANALYSIS

Is the applicant removed from the MIG due to chronic pain with a functional impairment?

11The applicant has not met the onus to be removed from the MIG due to chronic pain with a functional impairment.

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 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.

14The applicant submits she should be removed from the MIG due to chronic pain. To support their claim, she is relying upon the Clinical Notes and Records of the family physician, Dr. Tupur Rahman, and a Psychological Assessment with Psychologist Dr. Tony Toneatto, dated July 30, 2023.

15The applicant also refers to the American Medical Association Guidelines (“AMA Guidelines”) for Chronic Pain. The applicant submits that she meets three criteria in the AMA Guidelines.

16Specifically, the applicant argues:

i. She has been diagnosed with Post-Traumatic Stress Disorder.

ii. Her pain interferes with her Activities of Daily Living, as noted in the CNR’s from Dr. Rahman.

iii. She has withdrawn from social milieu, including work, recreation and other social contact.

17The respondent disagrees with the applicant. It submits that the applicant has no functional impairment or disability, since she has reported that she has resumed all her housekeeping, self care, driving and other caregiving activities. Therefore, they argue, the arguments made by the applicant with respect to pain interfering with activities of daily living and social withdrawal should be given less weight.

18The respondent also argues the applicant has not been diagnosed with chronic pain, nor has she submitted medical records to support a claim of chronic pain.

19I agree with the respondent. The applicant has reported to her family physician and her psychologist that she has returned to her volunteer care giving activities by driving patients to medical appointments in the community.

20Furthermore, it is long-standing practice that chronic pain in and of itself is not sufficient to remove an applicant from the MIG. The test is chronic pain with a functional impairment.

21Despite the onus being upon the applicant to prove chronic pain with a functional impairment, I was not led to any submissions which point to evidence of a functional impairment.

22For this reason, I do not find that the applicant, on a balance of probabilities, has met the onus to establish she should be removed from the MIG on the basis of chronic pain with a functional impairment.

Is the applicant removed from the MIG due to Psychological Injury?

23The applicant has not met the onus to prove she should be removed from the MIG due to psychological injury.

24The applicant argues she has sustained a psychological injury and been diagnosed with psychological disorders due to the accident. To support her claim, she again relies on the CNR’s from her family physician and the aforementioned psychological assessment.

25The expert report from Dr. Toneatto says the applicant has been diagnosed with post-traumatic stress disorder, with symptoms of insomnia, low mood, anxiety, and somatic pain. Dr. Toneatto goes on to recommend ten hours of psychological treatment.

26The respondent argues that the applicant’s symptoms are simply sequalae from the accident, and relies upon a Section 44 Psychological Assessment conducted by Psychologist Dr. Cheryl Bradbury, dated April 14, 2023. Dr. Bradbury states that the applicant ‘does not meet full diagnostic criteria for any current major depressive disorder, manic or hypomanic episode or clinical anxiety disorder that can be directly attributable to her September 28, 2021 accident.

27Dr. Bradbury goes on to point out that the applicant has resumed her own day-to-day driving activities and still drives clients on shorter trips within the community.

28The respondent also refers to Ayala v Intact Insurance Company, 2023 CanLII 50623 (ON LAT), where it was held that the failure to produce corroborating or persuasive evidence of a psychological impairment, outside of the applicant’s s.25 report, is detrimental to the applicant’s claim.

29Finally, the respondent cites that the applicant has not distinguished between psychological sequalae from the accident, and a true psychological injury. They refer to Nguyen v Wawanesa Mutual Insurance Company, 2021 CanLII 96836 (ON LAT) where LAT Vice-Chair Theresa McGee stipulated there should be clinical notes and records documenting a link between the subject accident and any psychological impairment.

30It is not in dispute that the applicant sustained soft tissue sprains and strains in the accident, including subluxation of thoracic, cervical and lumbar regions as well as neck pain and stiffness. The psychological symptoms documented in the evidence before me include slight mood and behavioural changes, sleep disruptions, and increased caution and anxiety.

31While I am alive to the fact the applicant claims driving anxiety, the applicant has returned, by and large, to the activities of daily living, and with the exception of driving into Toronto, she has even continued to drive other seniors around her community for errands and medical appointments.

32While I am also alive to the fact the applicant has produced Dr. Toneatto’s report, I am faced with competing expert reports, with dramatically different conclusions. The onus to establish her claim is on the applicant. Despite this onus, having reviewed the Clinical Notes and Records from Dr. Rahman, I see the notes refer to concerns and anxiety regarding driving, but do not make reference to how severe those symptoms may be.

33I was not led to other corroborating evidence to suggest the applicant’s psychological concerns were more significant than sequalae from the accident.

34Therefore, I find that the applicant’s symptoms are clinically associated consequences of the applicant’s minor, soft tissue injuries, and should therefore be treated under the Minor Injury Guideline.

35For these reasons, I find on the balance of probabilities that the applicant has not met the onus to prove she should be removed from the MIG based on Psychological Injury.

36As the applicant is being held to the MIG, it is not necessary for me to do a reasonable and necessary analysis as to the treatment plans in dispute.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

ORDER

38The application is dismissed.

i. The applicant is being held to the MIG.

ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. No interest is payable.