MacCarthy v. Belair, 2025 CanLII 78099

Citation: MacCarthy v. Belair, 2025 ONLAT 23-007101/AABS

Licence Appeal Tribunal File Number: 23-007101/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.

Parties

Between:

Don DShey MacCarthy

Applicant

and

Belair

Respondent

DECISION

ADJUDICATOR: Kevin Yarde

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Belair Insurance, Thomas Petrella, Counsel

HEARD: In Writing

OVERVIEW

1Don DShey MacCarthy, the applicant, was involved in an automobile accident on March 9, 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, 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 therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to a non earner benefit in the amount of $185.00 per week from April 10, 2021, to March 9, 2023?

iii. Is the applicant entitled to $1,215.32 for chiropractic services, proposed by E Clinic United healing in a treatment plan/OCF-18 (“plan”) dated August 29, 2021?

iv. Is the applicant entitled to $1,920.53 for a psychological assessment, proposed by E Clinic United Healing in a plan dated July 16, 2021?

v. Is the applicant entitled to $4,314.20 for psychological services, proposed by E Clinic United Healing in a plan dated August 25, 2021?

vi. Is the applicant entitled to $2,927.44 for other goods and services, proposed by Activa Hamilton in a plan dated July 26, 2021?

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

RESULT

3The applicant is subject to the MIG treatment limits.

4The applicant is not entitled to a non earner benefit.

5The applicant is not entitled to the treatment plans in dispute.

6As there are no overdue benefits, the applicant is not entitled to interest.

ANALYSIS

Applicability of the 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.”

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 claims that he should be removed from the MIG because he developed psychological impairments as a result of the accident.

10In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology or clinically significant psychological impairment. I find that the applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.

11The applicant submits that he suffers from feeling anxious, extreme fear, nightmares, flashbacks, loss of interest, difficulty concentrating, insomnia, fatigue, irritability and loss of energy at times as a result of the accident. The applicant argues that these conditions have developed into depression and emotional distress.

12The applicant relies on OCF-18 reports from chiropractor, Tahani Al-Rifai of Activa Hamilton, dated July 26, 2021, Alexander Kipershlak (chiropractor), dated June 23, 2021, and Priyanka Jirange, physiotherapist of Activa Hamilton, dated May 6, 2021. The applicant also relies on a Psychological Assessment Report of August 25, 2021, prepared by Bruce Cook, psychological associate. Despite the applicant’s reliance on these reports, I find there is no supportive evidence that he suffered any significant psychological impairment as a result of the accident. The records from his family physician are completely silent on psychological complaints. The respondent had requested the family physician documents; however, they were received well outside the time limits.

13I find that the applicant relying on the OCF-18s as evidence/proof of accident-related impairments is neither comprehensive nor objective. The applicant seeks to rely on evidence provided by the same clinics which seek to provide the services in dispute.

14The applicant largely relies on the report of Mr. Cook, dated August 25, 2021. At the examination with Mr. Cook the applicant complained of psychological impairments caused by the accident including anxiety, extreme fear, difficulty concentrating, stress and poor sleep. Mr. Cook noted the applicant was prescribed medication for his headaches and he also received a recommendation to attend physiotherapy. Given the nature of the applicant’s psychological and pain symptoms, Mr. Cook recommended cognitive behavioural therapy to reduce depressive symptoms; anxiety management techniques; exposure therapy, eye movement desensitization and reprocessing and pain management.

15The respondent submits that the applicant’s injuries are predominantly minor such that the MIG applies. The respondent argues that the psychological assessment report of Mr. Cook should carry little weight. The respondent submits that the applicant reported being only “mildly anxious” and “mildly depressed”. The respondent also submits the assessment relied heavily on the self-reporting of the applicant. The respondent stated the applicant scored in the moderate range on the Beck Depression Inventory (BDI).

16The respondent submits that the applicant suffers from only post-accident sequelae which does not warrant his removal from the MIG. The respondent also points to the Trauma Symptom Inventory-2-A (TSI-2-A) submitting that the applicant did not demonstrate any clinically significant elevations. Indeed, Mr. Cook in his analysis writes the applicant “did not demonstrate any elevations on the clinical scales on his test which represent actual trauma symptoms”. For this and other reasons the respondent submits the applicant should remain within the MIG.

17I agree with the respondent. For the applicant to meet his burden to demonstrate that the injuries fall outside the limits of the MIG, there is the requirement for medical evidence showing the applicant’s injuries are not minor or mere sequelae. I find that Mr. Cook’s assessment on its own is insufficient. There was no evidence that the applicant sought treatment for psychological complaints as a result of the accident. Also, I find that Mr. Cook’s report does not support the conclusions. The applicant’s Personality Inventory was within the normal range of well functioning individual. However, Mr. Cook concluded the applicant had a DSM-5 diagnosis of adjustment disorder mixed with anxiety and depressed mood, despite the applicant showing only mildly anxious and mildly depressed symptoms.

18I am persuaded by the respondent’s arguments that there were no indications of anxiety or depression. The lack of reports of psych symptoms of the applicant and the fact that the applicant did not demonstrate any clinically significant elevations on the clinical scales favour the respondent.

19For the above reasons, the applicant has not supported his claim to be removed from the MIG on the basis of psychological impairment. He remains within the MIG and its $3,500.00 limit on treatment.

Is the applicant entitled to a non earner benefit in the amount of $185.00 per week from April 10, 2021, to March 9, 2023?

20The applicant does not meet the disability test for a non-earner benefit.

21The disability test for a non-earner benefit is set out in s. 12(1) of the Schedule. To be eligible for this benefit, an applicant must prove, on a balance of probabilities, that as a result of and within 104 weeks of the accident, he suffers a “complete inability to carry on a normal life.”

22Section 3(7)(a) of the Schedule provides that a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.

23The applicant has failed to make any submissions on the issue of non-earner benefits. No details were provided as to his pre-accident activities or to demonstrate how his participation in those activities has been limited as a result of the accident. Nor has the applicant directed me to medical evidence to establish a complete inability to carry on a normal life as a result of the accident. As such the applicant has failed to discharge his evidentiary onus.

24Accordingly, I find that the applicant is not entitled to a non-earner benefit.

25As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, it follows that no benefits are overdue. Therefore, I find that interest does not apply pursuant to s. 51 of the Schedule.

ORDER

27I find that:

i. The applicant’s injuries are predominantly 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.

iii. The applicant is not entitled to a non earner benefit.

iv. The applicant is not entitled to interest.