DaCosta v. Belair Insurance Company Inc., 2025 CanLII 52371

Citation: DaCosta v. Belair Insurance Company Inc., 2025 ONLAT 23-007920/AABS

Licence Appeal Tribunal File Number: 23-007920/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:

Raquel DaCosta Applicant

and

Belair Insurance Company Inc. Respondent

DECISION

ADJUDICATOR: Rasha El Sissi

APPEARANCES:

For the Applicant: Bianca Crocetti, Paralegal

For the Respondent: Thomas Petrella, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rachel DaCosta, the applicant, was involved in an automobile accident on February 14, 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 Insurance Company Inc., 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 injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $4,927.61 for physiotherapy services proposed by Seksek Chiropractic Professional Corporation in a treatment plan dated July 12, 2022?

iii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposal by Q Medical in a treatment plan dated July 6, 2022?

iv. Is the respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

4The applicant is not entitled to the treatment plan in dispute for $2,486.00 for a psychological assessment or interest.

5The applicant is entitled to payment for all goods, services, assessments and examinations described in the treatment plan in dispute for $4,927.61 for physiotherapy services, that were incurred by the applicant from July 27, 2022 to October 7, 2022, if any, plus interest on any such amounts payable, by operation of s. 38(11), once properly invoiced.

6The respondent is not liable to pay an award.

ANALYSIS

MIG

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.”

8The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under s. 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.

Does the MIG apply?

9I find that the MIG applies because the injuries and impairments that the applicant argues should remove her from the MIG were not as a result of the collision and because the applicant’s injuries that were as a result of the collision are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment under the MIG. The applicant makes one reference to chronic pain in her submissions in connection with

10The applicant argues that she sustained significant injuries as a result of the collision. She points to the injuries on the disability certificate (OCF-3) signed by Atiq Farooqui, physiotherapist, on March 10, 2022, which are cervicalgia; concussion; low back pain and pain in thoracic spine. She submits that these are not predominantly minor injuries and relies on medical evidence submitted. Specifically, the medical evidence consists of the clinical notes and records (“CNR”) of: Dr. Theodoros Pantakis, family doctor; Dr. Brock Rondeau, orthodontist; Dr. Jorge Burneo, neurologist; and Dr. Aiswarya Pillai, psychiatrist. She also points to her prescription summaries from Pharmasave Advanced Pharmacy.

11The respondent relies on a s. 44 medical assessment by Dr. Pankaj Bansal, general practitioner, dated September 26, 2022. Dr. Bansal concluded that the applicant sustained soft tissue injuries of the back and neck in the accident and should be treated within the MIG. The respondent also relies on the s. 44 psychological assessment report of Dr. Shulamit Mor, psychologist, dated August 26, 2022. Dr. Mor concluded that, although the applicant has anxiety, she does not meet the criteria for a diagnosis as related to the accident, and her prognosis for any accident-related psychological injuries is excellent. Dr. Mor concluded that the applicant should be treated within the MIG.

Physical and Neurological Injuries

12The applicant went to the emergency department of London Health Sciences Centre right after the accident. The triage note states that she had post-concussive symptoms including headache, chest pain, neck pain with associated loss of consciousness. However, she left without seeing the physician.

13The applicant commenced treatment for her minor injuries at Hands on Health Wellness Centre on March 1, 2022.

14The applicant was assessed a few weeks after the accident by her family doctor Dr. Theodoros Pantakis. Dr. Pantakis’s CNR of March 7, 2022 show that the applicant reported having various post-accident symptoms including headache and neck and back pain and that she fainted once in the shower. Dr. Pantakis ordered an urgent CT of her head, which was unremarkable. Dr. Pantakis did not diagnose the applicant with a concussion.

15The applicant visited Dr. Brock Rondeau, orthodontist, about two months after the accident for a consultation on temporomandibular joint (“TMJ”) pain. Dr. Rondeau found TMJ pain and clicking on examination on April 28, 2022. I note that Dr. Rondeau’s handwritten CNRs of the visit on April 28, 2022 are illegible. The follow-up note, dated February 7, 2023, only suggests that Dr. Rondeau had provided the applicant with an appliance / splint to be worn according to his instructions.

16The respondent submits that the CNRs of Dr. Rondeau do not support the applicant’s removal from the MIG, because there is no description of the mechanism of injury causing the TMJ pain or any diagnosis or recommendation suggesting the pain is anything other than soft tissue in nature.

17The evidence that TMJ pain was caused by or made worse by the accident is in the form of self-reports by the applicant to Dr. Rondeau that he recorded in his CNRs on April 18, 2022. There is no other evidence that connects the TMJ pain / clicking to the accident. In any event, I do not find that the evidence of TMJ pain and clicking found by Dr. Rondeau on examination on April 28, 2022 establishes that the applicant should be removed from the MIG. There is no evidence in Dr. Rondeau’s CNRs that the TMJ / jaw pain was caused by an injury that falls outside of the definition of “minor injury”.

18About four months after the accident the applicant was seen by Dr. Jorge Burneo, neurologist, for a first-time seizure on June 8, 2022. Dr. Jorge’s CNRs dated June 20, 2022 state that the applicant described the accident, her associated loss of consciousness and her post-concussive symptoms. However, I do not find that the applicant’s seizure was related to the subject accident. Dr. Borneo’s CNRs also state that his impression was of a tonic-clonic seizure with suspected generalized onset, also likely provoked in the context of using certain medications. The plan involved the adjustment of those medications. In Dr. Pantakiz’s reports to the Ontario Ministry of Transportation, he states that the applicant’s seizure / loss of consciousness was provoked by prescription medication and has been resolved. The seizure did not recur according to the CNRs in evidence.

19On the totality of the evidence, I am not persuaded, on a balance of probabilities, that the applicant suffered more than predominantly minor injuries in the accident.

Psychological Condition

20The applicant submits that, before the accident, she was taking a medication for anxiety and depression, and that after the accident, she was given many more medications related to her mental health and focus / concentration (possible ADHD). She submits that she is struggling with her mental health as evidenced by the prescription medication record in evidence. As a result, I have considered if the applicant should be removed from the MIG because of a psychological condition.

21The respondent submits that the applicant’s psychological impairments pre-date the accident and were not caused by the accident and points to the s. 44 report of Dr. Mor.

22In her submissions, the applicant pointed to Dr. Pantakiz’s and her treating psychiatrist’s, Dr. Aiswarya Pillai, CNRs. I do not find that these establish that the applicant suffered an accident-related psychological impairment. The applicant saw Dr. Pantakiz on May 17, 2022 about “questionable behaviour”, for which he prescribed medication to treat potential bi-polar disorder and referred her to a psychiatrist. There is no indication in the medical evidence that the mental health and focus / concentration challenges that the applicant was subsequently treated for by Dr. Pillai were related to the accident.

23The applicant was interviewed on July 4, 2022 in connection with the treatment plan in dispute for a psychological assessment. The applicant described her psychological complaints in connection with the accident (including heightened anxiety, nervousness inside a vehicle, distressing dreams of the accident and flashbacks to the accident). I place no weight on this interview as evidence of an accident-related psychological impairment. I cannot determine who interviewed the applicant or their qualifications. The content is based on the applicant’s self-reporting and there was no testing. I also note that the applicant reported that she continued to drive.

24I accept the opinion of Dr. Mor, psychologist, who assessed the applicant on August 16, 2022 by way of psychometric testing and clinical interview. Dr. Mor concluded that, although the applicant has anxiety, she does not meet the criteria for a diagnosis as related to the accident, and her prognosis for any accident-related psychological injuries is excellent. Dr. Mor concluded that the applicant should be treated within the MIG.

25In sum, I find that, while the applicant has a continuing psychological condition that existed pre-accident, on a balance of probabilities, it does not warrant removal from the MIG.

26The respondent submits that the applicant has $819.93 remaining under the MIG.

27As I have found that the applicant should be treated within the limits of the MIG, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.

28However, the applicant argues that the respondent’s denial letters, dated July 26, 2022 (for $4,927.61 of physiotherapy) and September 9, 2022 (for $2,486.00 for a psychological assessment), do not provide proper medical reasons as required by s. 38(8) of the Schedule.

29Section 38(8) states that, when denying any aspect of a treatment plan, an insurer is required to provide “the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.” A breach of s. 38(8) triggers the remedies available under s. 38(11) of the Schedule.

30Under s. 38(11), the insurer is prohibited from taking the position that the injured person has an impairment to which the MIG applies and shall pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) ( “period of non-compliance”).

Physiotherapy Denial Letter

31In the physiotherapy denial letter dated July 26, 2022 (“Initial Letter”), the respondent stated: that the MIG applies to the applicant’s impairment; the treatment claimed is not reasonable and necessary; there is insufficient compelling medical evidence to support exclusion from the MIG; the information on file does not allow the respondent to determine if the recommendations in the respective treatment plans are appropriate and therefore it cannot consider funding them; and it requires a s. 44 examination.

32I find that the Initial Letter did not comply with s. 38(8) because it did not offer insight into the reasons for denying the physiotherapy treatment plan. It did not contain any detail about why the applicant’s impairment was considered a “minor injury” and why the medical evidence was insufficient / uncompelling to support exclusion from the MIG.

33However, I find that the subsequent denial letter dated October 7, 2022 (“Subsequent Letter”) is a compliant notice as described in s. 38(8). The applicant did not make submissions about the Subsequent Letter. It was provided in evidence by the respondent.

34The Subsequent Letter stated that the MIG applies and provided medical reasons based on Dr. Bansal’s s. 44 examination report and a copy of the report. Specifically for medical and all other reasons, it stated that: the applicant sustained uncomplicated, self-resolving, soft tissue type injuries involving her neck and back; this injury type would be classified as a "minor injury"; there would be no reason why [the applicant] would currently have a physical impairment in relation to the accident from a musculoskeletal injury perspective; and accordingly the physiotherapy treatment plan is not reasonable and necessary.

35As I have found the respondent failed to comply with s. 38(8) in the Initial Letter, I find that s. 38(11) is triggered with respect to the physiotherapy treatment plan. Consequently, the respondent must pay for all goods, services, assessments and examinations described in the physiotherapy treatment plan that were incurred by the applicant from July 27, 2022 to October 7, 2022, which is the applicable period of non-compliance, once properly invoiced. July 27, 2022 is the 11th business day after the day the insurer received the plan and October 7, 2022 is the date of the Subsequent Letter.

Psychological Assessment Denial Letter

36The applicant submits that that the denial letter of September 9, 2022 with respect to the treatment plan in dispute for a psychological assessment (“Psychological Denial Letter”) did not provide a proper medical reason as required by s. 38(8) either.

37I do not agree that the Psychological Denial Letter did not provide a proper medical reason. The letter is a clear denial on the basis that the applicant’s injuries are minor, which includes any clinically related symptoms to the physical injuries listed in the definition of “minor injury”.

38In addition, in the Psychological Denial Letter the respondent cited the conclusion of Dr. Mor’s report that the applicant currently does not meet the criteria for a diagnosis as related to the subject accident, although she does have anxiety. Specifically, the respondent stated that the applicant “denied any relation between the subject accident and her pre-existing (and continued) psychological problems”. I find that Dr. Mor’s psychological assessment report as cited in the Psychological Denial Letter is sufficient medical documentation to justify the respondent’s denial of the treatment plan for a psychological assessment.

Interest is payable.

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the amounts that shall be paid by the respondent under s. 38(11) in respect of the physiotherapy treatment plan, if any.

No award is justified.

40The applicant sought an award under s. 10 of O.Reg. 664.

41Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

42The applicant submits that the respondent has a fiduciary obligation to the applicant to follow the requirements of the Schedule and that the respondent’s failure to do so resulted in denying proposed treatment and not paying incurred treatment. The applicant concedes that the actions of the respondent “were not of malice intent”. The applicant does not provide any explanation or citations to support this submission.

43I do not find any basis to conclude that the respondent’s conduct in adjusting the applicant’s claims was excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, no award is justified.

44As I have found that no other benefits were withheld, there is no basis to grant an award.

ORDER

45For the above reasons, I find:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

ii. The applicant is not entitled to the treatment plan in dispute for $2,486.00 for a psychological assessment or interest.

iii. The applicant is entitled to payment for all goods, services, assessments, and examinations described in the treatment plan in dispute for $4,927.61 for physiotherapy services, that were incurred by the applicant from July 27, 2022, to October 7, 2022, if any, plus interest on any such amounts payable, by operation of s. 38(11), once properly invoiced.

iv. No award is granted.