Licence Appeal Tribunal File Number: 23-005056/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:
Michelle Higgins-Rose
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Bianca Crocetti, Counsel
For the Respondent:
Alexandra Wilkins, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Michelle Higgins-Rose, the applicant, was involved in an automobile accident on December 15, 2020, 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, Belairdirect, 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 (MIG) limit?
ii. Is the applicant entitled to $1,995.00 for Psychological Services, proposed by Scarborough Medical Centre in a treatment plan/OCF-18 (“plan”) dated April 4, 2021?
iii. Is the applicant entitled to $2,524.23 for Psychological Services, proposed by Scarborough Medical Centre in a treatment plan/OCF-18 (“plan”) dated August 19, 2021?
iv. Is the applicant entitled to $2,522.16 for chronic pain assessment, proposed by Scarborough Medical Centre in a treatment plan/OCF-18 (“plan”) dated February 11, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant submits that issue iv. was incorrectly identified as psychological services in the Case Conference Report and Order (CCRO) and should be for a chronic pain assessment. The respondent did not object to this clarification.
RESULT
4The applicant remains in the MIG.
5As the applicant remains in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
6The treatment plan for a chronic pain assessment is not payable.
7No interest is owing.
ANALYSIS
Minor Injury Guideline (MIG)
8Section 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.”
9An 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.
10The applicant submits that she should be removed from the MIG on the basis of chronic pain and psychological impairments. The burden is on the applicant to demonstrate, on a balance of probabilities, that her injuries fall outside of the MIG.
Chronic Pain with a functional impairment
11The applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment as a result of the accident.
12The applicant argues that she is suffering from chronic pain as a result of the subject accident because on her ongoing pain reporting. The applicant relies on the clinical notes and records (CNRs) of her family doctor, Dr. Almeida.
13I find that the CNRs of Dr. Almeida do not support the applicant’s claim that she suffers from chronic pain with a functional impairment. Dr. Almeida does not diagnose chronic pain, does not list functional impairments, and does not recommend or refer the applicant for any specific chronic pain testing or assessments. Additionally, there are limited references to the subject accident in the CNRs.
14Therefore, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain with a functional impairment that warrants removal from the MIG.
Psychological impairment
15The applicant has not proven on a balance of probabilities that she suffers from a psychological impairment as a result of the subject accident warranting removal from the MIG.
16The applicant submits that she suffers from a psychological impairment as a result of the subject accident. The applicant relies on a psychological assessment report dated May 26, 2021, completed by Dr. Zakzanis, psychiatrist.
17I place little weight on the psychological assessment report by Dr. Zakzanis. In the report, Dr. Zakzanis concludes that the applicant suffers from adjustment disorder and somatic symptom disorder. In reviewing the testing from the assessment, the psychometric testing was unremarkable and the conclusion by Dr. Zakzanis leans heavily on the subjective complaints of the applicant which are not corroborated by any other evidence provided.
18The respondent argues that the applicant does not suffer from a psychological condition that warrants removal from the MIG. It relies on a psychological assessment report by Dr. Seon, psychologist, completed on September 14, 2021.
19I find that the psychological assessment completed by Dr. Seon also indicates that the psychometric testing was unremarkable. During the clinical interview with Dr. Seon, the applicant shared that she informed a therapist (whose name was not disclosed) that she was uninterested in engaging in individual psychotherapy. She reported improvement in her emotional functioning, and denied any psychological impairments that warrant the need for psychotherapy. Additionally, during the assessment, the applicant reported that her mood is “okay now”, and again, declined the need to engage in psychological treatment.
20I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the subject accident. The assessments by Dr. Zakzanis and Dr. Seon both reported unremarkable results from the psychometric testing. Their conclusions differ on the interpretation of the subjective complaints by the applicant. I found the definitive statements in Dr. Seon’s assessment to be very compelling because the applicant self reports that her mood is okay now, and she was not interested in engaging in psychological treatments. These statements are not refuted by the applicant in her submissions. Additionally, the conclusions of Dr. Zakzanis are not corroborated by any other medical evidence that was submitted.
21As such, the applicant has not established that her accident-related impairments warrant removal from the MIG.
Section 38 and the chronic pain assessment treatment plan denial
22I find that the applicant has not proven, on a balance of probabilities, that the respondent’s denial notice related to the psychological services treatment plan did not conform with the requirements of s. 38.
23Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
24If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment 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 subsection (8).
25The applicant argues that the respondent provided little to no medical or other reasons as to why it denied the submitted treatment plan. The respondent argues that its denial notice complied with the requirements of s. 38(8).
26The denial provided by the respondent identified the goods and services in the treatment plan, as well as stating that it lacked sufficient medical evidence on file to substantiate that the injuries suffered were not minor in nature. In the denial notice, the respondent informed the applicant that it required a s. 44 examination to determine if the injuries sustained were more than minor in nature.
27I find that the respondent’s denial notice complies with the requirements of s. 38(8) because it adhered to the requirements of s. 38(8) because it identified the assessments which it did not agree to pay for, as well as the medical and other reasons why it considered the services to not be reasonable and necessary. In this case, a lack of medical support for the claimed assessment warranted a s. 44 investigation. This is a valid medical and other reason.
28I find that the applicant has not proven, on a balance of probabilities, that the respondent failed to comply with the s. 38(8) requirements to trigger the consequences of s. 38(11).
29As the applicant has been found to remain in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest in owing.
ORDER
31I find that:
i. The applicant remains in the MIG.
ii. The treatment plan for a chronic pain assessment is not payable.
iii. As the applicant remains in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
iv. No interest is owing.
v. The application is dismissed:
Released: July 9, 2025
__________________________
Robert Rock
Adjudicator