Campbell v. Belair Insurance Company Inc., 2025 CanLII 1822

Citation: Campbell v. Belair Insurance Company Inc., 2025 ONLAT 23-001324/AABS

Licence Appeal Tribunal File Number: 23-001324/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:

Elizabeth Elon Campbell

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Dayana Soto Santana, Paralegal

For the Respondent: Riley McIntyre, Counsel

HEARD: In Writing

OVERVIEW

1Elizabeth Campbell, the applicant, was involved in an automobile accident on December 2, 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 applicant submits that she is unaware of how much the respondent has paid in medical benefits to date as the respondent failed to produce documents, including a copy of the applicant’s claim file and the clinical notes and records (“CNRs”) of the section 44 assessors, as ordered in the September 13, 2023, Case Conference Report and Order (“CCRO”). The respondent makes a similar submission, that the applicant failed to produce documents ordered in the CCRO and provided email correspondence as evidence. As a result, the respondent requests that the Tribunal draw an adverse inference.

3In reviewing the email correspondence between the parties, I find that contrary to the applicant’s submissions, the respondent did provide the claim file and the clinical notes and records of the section 44 assessor. The applicant was provided a complete copy of the claims file on October 24, 2023, and delivered authorization for the section 44 assessors’ CNRs on October 3, 2023.

4By contrast, the applicant has not provided the respondent with all of the documents as required by the CCRO. This includes:

i. Decoded OHIP summary. ii. CNRs of treating clinics and service providers a) Crosstown rehab, b) 101 physio, and c) Dr. Boulias (physiatry) iii. Outstanding treatment invoices. iv. Hospital records. v. Imaging and diagnostic reports. vi. Prescription history. vii. Collateral benefits file.

5In reply submissions, the applicant acknowledges non-compliance with the CCRO and submits that she did make requests for the additional documentation, but the records were not received. The applicant further states that the CNRs of treating clinics and service providers were provided but submits no evidence to support that claim.

6It is in the Tribunal’s discretion to draw an adverse inference from a party’s failure to produce relevant documents ordered in the CCRO. Given the lack of persuasive explanation by the applicant, I chose to draw the adverse inference that the disclosure of these documents would be detrimental to the applicant’s case, as discussed in further detail below.

ISSUES

7The following issues are to be decided:

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 $3,123.34 for chiropractic services, proposed by Allied Physiotherapy & Wellness Centre Inc. in a treatment plan dated September 27, 2022? iii. Is the applicant entitled to $3,366.58 for chiropractic services, proposed by Allied Physiotherapy & Wellness Centre Inc. in a treatment plan dated June 6, 2022? iv. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated July 17, 2023? v. Is the applicant entitled to $3,790.70 for psychological services, proposed by 101 Assessments in a treatment plan dated March 15, 2023? vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

8For the reasons that follow, I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG; ii. The applicant is not entitled to the disputed treatment plans; and iii. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

9The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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.”

10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

11An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

12It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from psychological, pre-existing and chronic pain injuries, which are not included in the definition of a minor injury. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor and that they can be treated within the confines of the MIG. The applicant has reached the maximum payable under the MIG.

The applicant did not suffer psychological injuries that warrant removal from the MIG

13I am not persuaded that the applicant should be removed from the MIG based on a psychological condition.

14An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

15To be removed from the MIG due to psychological impairments, the applicant must show that she has a psychological impairment and not just post-accident psychological sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

16The applicant submits that she has sustained psychological impairments as a result of the accident. In support of her claim, the applicant relies on the section 25 psychological assessment of Dr. Konstantinos Papazoglou, psychologist, dated March 7, 2023. At the virtual assessment the applicant reported nightmares, interrupted sleep, sadness, and the inability to stay focused. Dr. Papazoglou diagnosed the applicant with adjustment disorder, specific (isolated) phobia (passenger) somatic symptom disorder with predominant pain. During the assessment, the applicant stated that she had never experienced a workplace accident, which according to the WSIB file is inaccurate, nor did she inform Dr. Papazoglou about her pre-existing chronic pain. Furthermore, her workplace accident is the reason she was on modified duties at work, not the accident. I note this, as Dr. Papazoglou did not have the benefit of this information prior to making a diagnosis about her modified duties or return to a regular lifestyle.

17The respondent submits that the applicant did not sustain a psychological impairment as a result of the accident. The respondent relies on the section 44 psychological assessment of Dr. Charlotte Gooden, psychologist, dated July 20, 2023. The applicant was administered several psychometric tests during the in-person assessment. Dr. Gooden concluded that the applicant’s symptomatology is not of a magnitude or severity to result in a formal DSM-5-TR diagnosis or psychological impairment. The respondent submits that Dr. Gooden’s diagnosis is consistent with the lack of any psychological or emotional complaints in the applicant’s medical records. The applicant’s family physician Dr. Sok-Kau Tang’s clinical notes and records (“CNRs”) make no reference to any psychological or emotional symptoms after the accident.

18In reviewing the evidence, I find it demonstrates that the applicant has not met her burden to prove that she suffers a psychological impairment as a result of the accident. Following the accident, the CNRs of Dr. Tang are absent of any reference to psychological symptoms, psychological referrals, or prescriptions. I prefer the medical conclusion of Dr. Gooden over that of Dr. Papazoglou, as it aligns with the lack of complaints in Dr. Tang’s CNR, and the assessment was conducted in person opposed to virtual. Furthermore, I highlight the applicant’s denial of any workplace accidents, and pre-existing chronic pain during her virtual assessment with Dr. Papazoglou as an important caveat, and I have reason to doubt that Dr. Papazoglou was provided with complete information about the applicant when arriving at his conclusion.

19As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.

The applicant did not suffer pre-existing injuries that warrant removal from the MIG

20I am not persuaded that the applicant should be removed from the MIG based on a pre-existing condition.

21Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

22The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG; it must be shown to prevent maximal recovery within the cap imposed by the MIG.

23The applicant submits that she has a pre-existing medical history of hip and back pain, stemming from a fall while running in January 2020 and a workplace injury on February 27, 2021. Dr. Tang’s CNRs reveal that this workplace injury persisted post-accident with the applicant reporting back pain and limitations. On March 16, 2021, the applicant attended for x-rays which confirmed a minimal degenerative change with endplate osteophytosis L2-3 and L3-4 and mild right hip joint space loss.

24The respondent submits that the applicant has not produced medical evidence that she sustained an impairment that brings her claim outside of the MIG, nor any evidence that she suffered from a pre-existing medical condition that was documented by a health practitioner before the accident that will prevent her from achieving maximal recovery from her minor injury if she is subject to the limits of the MIG. The respondent argues that the applicant refers to pre-existing hip and back pain, however, when the applicant was assessed by Dr. Tang following the accident on December 10, 2021, the applicant was diagnosed with a neck sprain. This is the only CNR of Dr. Tang that refers to the accident and it makes no mention of any exacerbation of any of the applicant’s pre-existing injuries.

25I find that the applicant has provided limited medical records to demonstrate that her pre-existing injuries are the cause of any current impairments. I acknowledge that the CNRs of Dr. Tang document complaints of pre-accident injuries to the applicant’s hip and back, however the initial appointment CNRs that reference the accident only mentioned a neck sprain. The CNRs of Dr. Tang after the accident do not recommend further medical intervention with respect to the applicant’s neck. Furthermore, after the initial appointment with Dr. Tang, there are no further references to the accident in the CNRs, nor any indication that this minor sprain would preclude the applicant’s recovery if kept in the MIG, which is the requirement for removal under s. 18(2). I find that the applicant continued to visit Dr. Tang for unrelated accident-related injuries and I am satisfied that the applicant has suffered from pre-existing workplace injuries, however, this only satisfies part of the test. The applicant must also provide compelling evidence that the pre-existing condition would preclude maximal recovery if kept within the MIG limits.

26Based on the evidence presented I am not satisfied that the applicant has met the second part of the test pursuant to section 18(2) of the Schedule, as she has not directed me to compelling medical evidence that her pre-existing condition would prevent recovery in the MIG limits.

27As such, the applicant has not proven, on a balance of probabilities, that her pre-existing condition would prevent maximal recovery from her accident-related injuries if she was kept within the MIG limits.

The applicant does not suffer from chronic pain that warrants removal from the MIG

28I find that the applicant has not provided sufficient evidence to demonstrate that her chronic pain justifies treatment beyond the MIG.

29For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

30The applicant submits that she has suffered ongoing chronic pain as a result of the accident. The applicant submits that during an appointment with Dr. Tang on January 13, 2022, she reported chronic back pain as a result of the accident, and on January 30, 2022, Dr. Tang referenced the applicant as having chronic back pain. The applicant also references chronic left knee pain and swelling. In reviewing the CNR from the January 30, 2022 appointment, the applicant also reported to Dr. Tang that her chronic pain was not as bad as before, and that she was ready to go back to regular duties at work as of February 21, 2022. Furthermore, I note that despite the applicant’s submission, there is no January 13, 2022 CNR submitted that references chronic back pain and as a result no medical evidence that connects the applicant’s chronic pain to the accident.

31The respondent submits that Dr. Tang’s CNRs reveal that before the accident, there were concerns with the applicant’s chronic back pain and her inability to return to regular duties at work due to the applicant’s workplace injury in February 2021. Furthermore, the respondent points to Dr. Tang’s referral to Dr. Chris Boulias, physiatrist, on December 2, 2021, the same day as the accident. Dr. Boulia’s findings were not produced by the applicant. As indicated above, the applicant failed to produce records in accordance with the CCRO, including the findings of Dr. Boulia, and I have drawn an adverse inference as a result. Throughout Dr. Tang’s CNRs there are further references for appointments with Dr. Boulias, but no findings. The respondent also relies on the section 44 in-person assessment of Dr. Eric Silver, who opined that the applicant did not have any ongoing accident-related musculoskeletal impairments, which is consistent with the lack of accident-related complaints in Dr. Tangs CNRs.

32I find that the applicant does not provide evidence to establish that she has a chronic pain condition requiring removal from the MIG as a result of the accident. Chronic pain is a severe, debilitating condition distinct from ongoing or recurring pain, and the onus is on the applicant to demonstrate that she suffers from functionally disabling pain as a result of the accident. I also find that the applicant not been diagnosed with chronic pain syndrome by a physician as a result of the accident, and any reference to chronic back pain by Dr. Tang is more likely attributed to her earlier workplace injuries and is not a diagnosis related to the accident. Lastly, I also find that the medical evidence does not demonstrate that the sprain and strain accident-related injuries have had a detrimental impact on her functionality nor that the applicant suffers from chronic pain. There is also no evidence presented by the applicant referencing her pre or post accident functionality which speaks to an exacerbation of her previous symptoms.

33I find that the applicant failed to provide evidence demonstrating that she developed or suffers from chronic pain as a result of the accident. Accordingly, I find the applicant has not demonstrated that removal from the MIG is warranted.

34The applicant is not entitled to the disputed treatment plan because I have found that the applicant has sustained a minor injury and is subject to the MIG. As a result, an analysis of whether the treatment plan is reasonable and necessary is not required.

Interest

35Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

36The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and 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; and iii. The applicant is not entitled to interest.