Banta v. Belair, 2025 CanLII 28476

Licence Appeal Tribunal

Citation: Banta v. Belair, 2025 CanLII 28476 Licence Appeal Tribunal File Number: 23-006330/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:

Liezel Banta Applicant

and

Belair Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Dayana Soto Santana, Paralegal For the Respondent: Robbie Brar, Counsel

HEARD: By way of written submissions

OVERVIEW

1Liezel Banta, the applicant, was involved in an automobile accident on August 5, 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, 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:

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 $2,460.00 for a neurological assessment, proposed by 101 Assessments in a treatment plan/OCF-18 (“plan”) dated March 1, 2023?

iii. Is the applicant entitled to $2,560.00 for a psychological assessment, proposed by 101 Assessments in a plan dated October 28, 2022?

iv. Is the applicant entitled to $3,397.16 for physiotherapy services, proposed by 101 Physio in a plan dated August 18, 2022?

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

RESULT

3I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 MIG limit;

ii. As the applicant is subject to the MIG, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary as a result of the accident.

iii. No interest is payable; and

iv. The application is dismissed.

ANALYSIS

The Minor Injury Guideline

4I find that the applicant has not met her onus to prove on a balance of probabilities that her accident-related impairments warrant removal from the MIG.

5Section 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.”

6An 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 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.

7The applicant submits that she should be removed from the MIG because she has a pre-existing condition, and she suffers from chronic pain and a psychological impairment as a result of the accident. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Nicole Shievitz, her family physician, the CNRs of 101 Physio Medical Rehabilitation Centre, and the psychological assessment report of Dr. Konstantinos Papazoglou, psychologist, dated October 16, 2022.The respondent submits that the applicant has not met her onus to prove that she has a pre-existing condition, chronic pain, or a psychological condition as a result of the accident.

8The respondent relies on the Insurer’s Examination (“IE”) psychological assessment report of Dr. Terra Seon, psychologist, dated February 16, 2023; the IE musculoskeletal report of Dr. Eric Silver, physician, dated October 13, 2022; and Dr. Silver’s IE musculoskeletal paper review report, dated February 14, 2023.

Pre-existing Condition

9I find the applicant has not established that she has a pre-existing condition which prevents maximal recovery from her accident-related minor injuries.

10The applicant submits that she has pre-existing conditions including pain in the rotator cuff tendons, back pain, right shoulder pain, and a cracking sound in her shoulder. The CNRs of Dr. Shievitz, the applicant’s family physician, reveal that the applicant first reported these symptoms on January 21, 2021. After the applicant was sent for an ultrasound of her right shoulder, which was “unremarkable”, she was diagnosed with a “likely” Trapezius strain on February 3, 2021. The applicant also complained of back pain to Dr. Shievitz on May 16, 2022, which she attributed to an accident in September 2021 for which she had been undergoing physiotherapy. After the telephone appointment, Dr. Shievitz diagnosed the applicant with “back pain -post MVC.”

11It is not enough to demonstrate that an applicant had a documented, pre-existing condition to meet the test for removal from the MIG based on s. 18(2) of the Schedule. An applicant must also provide “compelling evidence” that the pre-existing condition will “prevent the insured person from achieving maximal recovery from the minor injury” if held to the MIG. The applicant did not direct me to any medical evidence to establish that her pre-existing conditions would preclude recovery from her accident-related injuries within the MIG to meet the second part of the test.

12Therefore, I find that the applicant has not met her onus to prove on a balance of probabilities that she has a pre-existing condition that would warrant removal from the MIG.

Chronic Pain

13I find that the applicant has not established that she is experiencing chronic pain with functional impairment.

14The applicant submits that she is suffering from chronic pain as a result of the August 5, 2022 accident, and that she has several imaging reports which reveal “degenerative injuries” in her back. However, the applicant has not submitted any imaging reports on her back, or any imaging reports completed since the accident.

15While the CNRs of Dr. Shievitz reveal that the applicant complained of pain immediately after the accident, they do not corroborate the applicant’s assertion that she is experiencing ongoing pain. The applicant complained of pain during an August 10, 2022 telephone call and at an in-person appointment on August 11, 2022, six days after the accident. The notation on the applicant’s file was “?myofascial [sic] pain syndrome/Anxiety,” and the applicant was prescribed Cymbalta at the time. The only other entry in Dr. Schievitz’s CNRs after the accident reveals that Dr. Schievitz called the applicant and received no response on August 25, 2022.

16The applicant further submits that she complained of pain to her physiotherapy providers on multiple occasions in 2021, which predate the accident. As such, I find they are, therefore, of no probative value in assessing the applicant’s pain complaints after August 5, 2022.

17Finally, while the applicant submits that the applicant was instructed to take time off work following her September 2021 accident, the applicant has not directed me to compelling evidence with respect to the applicant’s function and any possible impacts of pain on her level of function as a result of her August 5, 2022 accident- related injuries. Therefore, I have insufficient evidence to determine whether the applicant is suffering from chronic pain with functional impairment.

18I note that the applicant relies on Tribunal decisions: 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ONLAT), 17-002907 v Aviva Insurance Canada, 2019 CanLII 22223 (ON LAT), and C.G. v The Guarantee Company of North America, 2020 CanLII 40333 (ON LAT) in support of her position that the applicant should be removed from the MIG due to chronic pain. I find that the facts in these cases are different from the matter before me, and as a result are not helpful in my analysis.

19For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she has chronic pain with functional impairment.

Psychological Impairment

20I find that the applicant has not established that she suffers from a psychological injury that would warrant her removal from the MIG.

21The applicant submits that she suffers from emotional and psychological impairments, which affect her function as a result of the August 5, 2022 accident. The applicant relies on the Oct 16, 2022 psychological assessment report of Dr. Papazoglou, who conducted an in-person interview and psychometric testing of the applicant on October 14, 2022, but did not indicate that he had reviewed the applicant’s medical records. In his report, Dr. Papazoglou opines that the applicant is experiencing significant psychological and emotional impairments as a result of the accident, which are consistent with a diagnosis of Adjustment Disorder (with mixed anxiety and depressed mood) and Specific (Isolated) Phobia (Passenger), and recommended a course of psychological treatment.

22In response, the respondent relies on Dr. Seon’s February 16, 2023 IE report, which was informed by an in-person examination, psychometric testing, and review of the applicant’s medical records. Dr. Seon opines that the applicant’s initial emotional adjustment difficulties and vehicular nervousness had improved with time, and that the applicant did not currently meet the criteria for a psychological diagnosis.

23Dr. Seon’s IE report reveals that, at the time of this s. 44 examination, which occurred four months after Dr. Papazoglou’s examination on February 14, 2023, the applicant reported no significant symptoms of depression, anxiety or post traumatic stress that affected her function, which I find indicates that the applicant’s previously reported psychological symptoms were sequelae of the accident, and had improved without psychological treatment with the passage of time.

24Additionally, the applicant reported to Dr. Seon that she did not want or need psychological treatment.

25For these reasons, I find that the applicant did not meet her onus to prove on a balance of probabilities that she has a psychological impairment to warrant removal from the MIG.

26Therefore, the applicant remains within the MIG. The applicant claims there is funding left under the MIG. If any such funding remains, the applicant is entitled to this amount.

27As the applicant is subject to the MIG, it is not necessary to determine whether the disputed treatment plans are reasonable and necessary as a result of the accident.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no outstanding payments, no interest in owing to the applicant.

ORDER

29For the above reasons, I find:

i. The applicant sustained a predominantly minor injury as a result of the accident. She remains subject to the MIG and its $3,500.00 limit.

ii. It is not necessary to determine whether the disputed treatment plans are reasonable and necessary as a result of the accident.

iii. No interest is owing.

iv. The application is dismissed.