Clarke-Stevens v. Belair Direct Insurance, 2025 CanLII 129098

Citation: Clarke-Stevens v. Belair Direct Insurance, 2025 ONLAT 24-002284/AABS

Licence Appeal Tribunal File Number: 24-002284/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:

Keishauna Clarke-Stevens

Applicant

and

Belair Direct Insurance

Respondent

DECISION

ADJUDICATOR: Jeff Chatterton

APPEARANCES:

For the Applicant: Bianca Pirrotta-Iaccino, Paralegal

For the Respondent: Robbie Brar, Counsel

HEARD: In Writing

OVERVIEW

1Keishauna Clarke-Stevens, the applicant, was involved in an automobile accident on January 3, 2022, 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, Bel-Air Direct Insurance., and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing 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?
2. Is the applicant entitled to $3,157.39 for chiropractic services, proposed by Alma Rehab in a treatment plan/OCF-18 (“plan”) dated April 13, 2022?
3. Is the applicant entitled to $2,912.56 for chiropractic services, proposed by Alma Rehab in a treatment plan dated June 27, 2022?
4. Is the applicant entitled to $2,350.00 for a concussion assessment, proposed by Ontario Independent Assessment Centre in a treatment plan dated November 11, 2022?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not met the onus to merit removal from the Minor Injury Guideline. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

4The applicant is not entitled to interest.

5The application is dismissed.

ANALYSIS

Is the applicant removed from the MIG due to a concussion?

6The applicant is not removed from the Minor Injury Guideline due to a concussion.

7Section 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.”

8An 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.

9The applicant argues that she sustained a concussion in the accident, and the presence of a concussion should automatically remove her from the MIG. To support her position, she is relying on the clinical notes and records (“CNRs”) of General Practitioner Dr. Gnanindra Manawadu.

10The respondent disagrees and relies upon a Section 44 Neurological Assessment conducted by Neurologist Dr. Brandon Kucher on April 29, 2024.

11Having reviewed the CNRs from Dr. Manawadu, I note that there is a sole reference to a concussion in the CNR dated January 6, 2022. This visit appears to have been a virtual visit conducted over the telephone. I also see a reference on January 10, 2022 to “need to follow up with Dr. Manawadu re: concussion symptoms.” This note on January 10, 2022 was written by a second physician, Dr. Marina Malak, and does not appear as a formal diagnosis but rather as an action item.

12Despite ongoing follow up visits over the course of the following year, there are no further concussion references or concerns about concussion symptoms detailed in the CNRs until November 11, 2023, when the applicant was involved in a second accident 23 months after the subject accident. I was not led to a conclusive diagnosis of a concussion in 2023. The applicant’s evidence includes a mere brochure, given to her after this second accident saying, “you have been diagnosed with a possible concussion.” As this does not appear to be related to the original accident, and does not conclusively diagnose a concussion regardless, I give this evidence no weight.

13Although the onus is on the applicant to prove that she suffered a concussion as a result of the subject accident, I was not led to any further supportive medical evidence in support of the applicant having an accident-related concussion.

14I prefer the evidence of the respondent. I say this for two reasons. Primarily, Dr. Kucher’s visit was conducted in person, which allowed him to do an in-person assessment. Secondly, Dr. Kucher is a neurologist, specialized in issues related to the brain. In his expert report, Dr. Kucher states “there were not any specific accident-related neurologic injuries.”

15In summary, the applicant’s evidence is a one-word reference to a concussion in January 2022 and an unrelated second reference to a possible concussion, 23 months after the original accident and following a second accident. This is not sufficient to discharge her onus. Furthermore, I put weight on Dr. Kucher, a neurologist, who has opined that the applicant does not appear to have suffered any neurologic injuries.

16For these reasons, I find the applicant has not met, on a balance of probabilities, the onus to establish she has suffered a concussion and should be removed from the MIG.

Should the applicant be removed from the MIG due to a pre-existing condition?

17The applicant has not met the onus to be removed from the MIG due to a pre-existing condition.

18The applicant argues that she has a documented pre-existing condition, specifically, scoliosis of the spine. She argues that such injury should remove her from the MIG. The respondent does not appear to dispute that the applicant has a pre-existing condition.

19The existence of a pre-existing condition or injury does not, on its own, remove an applicant from the MIG. Rather, section 18(2) provides the applicant must provide compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.

20Although the onus is on the applicant to provide such compelling medical evidence, I was not led to any medical evidence stating that the applicant’s scoliosis would prevent maximal recovery should she be held to the MIG.

21Therefore, I find the applicant has not met the onus, on the balance of probabilities, to be removed from the MIG on the basis of a pre-existing condition.

22As the applicant is being held to the MIG, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.

Interest

23Interest 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

24The application is dismissed.

i. The applicant is being held to the Minor Injury Guideline.

ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

iii. No interest is payable.