Citation: McDonald v. Belair Insurance Company Inc., 2025 ONLAT 23-012496/AABS

Licence Appeal Tribunal File Number: 23-012496/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:

Byron McDonald

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Harouna Saley Sidibé

APPEARANCES:

For the Applicant:

Maria Makarova, Paralegal

For the Respondent:

Shivani Mehta, Counsel

HEARD:

By way of written submissions

1Byron McDonald, the applicant, was involved in an automobile accident on July 7, 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 as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit (“MIG”)?

ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from December 9, 2022, to July 7, 2024?

iii. Is the applicant entitled to the treatment plans/OCF-18 (“plan”) proposed by Body Dynamics as follows:

$2,219.74 for psychological services dated November 8, 2022;
$3,935.12 for physiotherapy services dated October 12, 2022;
$4,169.60 for physiotherapy services dated July 13, 2022;
$103.81 ($1,289.59 less $1,185.78 approved) for physiotherapy services dated September 15, 2022;
$2,766.48 for physiotherapy services dated November 17, 2023; and
$2,413.00 for a chronic pain assessment dated September 28, 2023?

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

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

3The applicant withdrew the issue related to the plan dated November 8, 2022, for $2,219.74, proposed by Body Dynamics, for psychological services, as stated in his submissions. As a result, this treatment plan will not be addressed in this decision.

4The applicant submitted that he was only seeking IRB from December 9, 2022, to July 7, 2024, instead of December 23, 2022, to an ongoing period mentioned in the Case Conference Report and Order (“CCRO”). The respondent addressed this period in its submissions.

RESULT

5For the reasons below, I find that:

i. The applicant’s injuries are not predominantly minor, and therefore, he is entitled to treatment beyond the monetary limit of the MIG.

ii. The applicant is not eligible for the physiotherapy treatment plans totalling $4,169.30; $3,935.12; $2,766.48; and $103.81 ($1,289.59 less $1,185.78 approved).

iii. The applicant is entitled to the treatment plan for chronic pain assessment amounting to $2,413.00, plus interest.

iv. The applicant is not entitled to the IRB or an award.

ANALYSIS

Are the applicant’s injuries predominantly minor?

6I find that the applicant’s injuries are not predominantly minor, and thus, the monetary limit of the MIG does not apply.

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 states that he developed chronic pain syndrome, sacroiliac joint (SIJ) dysfunction, radiculopathy, and fibromyalgia following the accident. He relies on the clinical notes and records (“CNRs”) from his family doctor, Dr. Afrooz Drakhshan, along with the findings of Dr. Igor Wilderman, a physician specialized in pain management, and Dr. Elvin Frempong-Manso, a pain specialist at the Pain Clinic, to argue that he should be removed from the MIG.

10The respondent argues that the applicant’s injuries are mainly minor and that the MIG applies. It cites s. 44 insurer examination (IE) reports by Dr. Stephanie Klein, a general practitioner, and Dr. Matthew Krievins, an Emergency Medicine Physician, who classified the injuries as minor and found no objective evidence of impairment hindering maximum recovery in the MIG.

11On August 24, 2022, the applicant visited his family doctor, Dr. Drakhshan, and mentioned that he was going to rehabilitation for back pain caused by the accident, but was still experiencing pain. He was prescribed Tylenol with codeine. The doctor observed tenderness in his back. On October 27, 2022, the applicant returned to Dr. Drakhshan for back pain related to the accident and was advised to receive an injection if the pain became severe. He was again prescribed Tylenol with codeine. The applicant expressed that he cannot sit upright or stand for extended periods, and his family doctor referred him for a pain assessment with Dr. Igor Wilderman. This is set out in CNRs dated May 17, 2023, May 31, 2023, and April 6, 2024.

12I have reviewed the CNRs from the family doctor, showing an ongoing pain complaint and diagnosis, along with functional impairments such as difficulty sitting upright and standing for long periods. Additionally, the intake form for an MRI of the lumbosacral spine at North York General indicated that the back pain has worsened.

13On April 17, 2024, the applicant had a pain assessment with Dr. Frempong-Manso. The physical exam revealed a reduced range of motion (“ROM”) in the neck, lower back, and shoulder. Dr. Frempong-Manso suggested that the applicant attend weekly pain management sessions to reduce reliance on opioids or other pain medications. On April 24, 2024, Dr. Frempong-Manso diagnosed the applicant with radiculopathy, mechanical lower back pain, and SIJ dysfunction. An injection was given to the applicant. The same diagnoses were confirmed on May 22, 2024.

14I find that Dr. Frempong-Manso’s assessments consistently document the applicant’s ongoing pain, which has not been alleviated by the injections administered. Despite these medical interventions, the records indicate that the applicant continues to experience significant discomfort, suggesting that the injections have provided limited or only temporary relief.

15According to the report dated May 10, 2024, from Dr. Wilderman, the physical examination reveals that the neck muscle tone and strength are rated 3/5 across all muscle groups, with abnormalities noted along the left L5 and S1 dermatomes during the lumbar assessment. The applicant was diagnosed following the accident with chronic pain syndrome, chronic WAD type II, fibromyalgia, left TMJ syndrome, mechanical back pain pattern 3 (lumbago with bilateral sciatica), SIJ dysfunction bilaterally, chronic post-traumatic headache, dizziness and light-headedness, depression, anxiety, and PTSD.

16The applicant also underwent s. 44 IE assessments. First, Dr. Krievins’ report dated December 7, 2022, indicated that the applicant’s injuries directly resulting from the accident are a soft tissue sprain/strain to the lumbar spine. Second, in the addendum assessment with the same doctor on May 8, 2024, the doctor stated that reviewing the additional documentation provided did not change his previous opinion. Third, the report from Dr. Stephanie Klein, a general practitioner, dated November 3, 2023, diagnosed the applicant with a sprain/strain injury of the cervical spine, accompanied by tension headaches and a sprain/strain injury of the lumbar spine. Finally, the reports from the same doctor, dated January 31, 2024, and May 2, 2024, maintained the same diagnosis.

17I assign less weight to Dr. Krievins’ report because he did not review the applicant’s family doctor CNRs, which are critical to understanding the history of chronic pain. As a result, his opinion does not reflect the full scope of the applicant’s medical background. Although the addendum report later included a review of the CNRs, the final diagnosis remains inconsistent with the applicant’s documented complaints to other medical professionals. Similarly, I assign less weight to Dr. Klein’s report due to the absence of relevant testing and a limited review of the applicant’s clinical history. Her report lacks sufficient engagement with the chronic nature of the applicant’s condition, which undermines its overall reliability.

18I prefer the assessments of Dr. Wilderman and Dr. Frempong because of their specialized expertise in chronic pain. Dr. Wilderman is a physician focused on pain management, and Dr. Frempong works as a pain specialist at the Pain Clinic. Their qualifications contrast with those of Dr. Krievins, an emergency medicine doctor, and Dr. Klein, a general practitioner, whose backgrounds lack the same level of specialization in chronic pain. Both Dr. Wilderman and Dr. Frempong identified chronic pain, and their findings align with the applicant’s treatment records and long-term clinical notes from Dr. Drakhshan. Importantly, Dr. Wilderman performed relevant testing and used the AMA Guides, 6th edition, in making his diagnosis of chronic pain syndrome. Their evaluations also consider the applicant’s functional limitations, such as difficulties with prolonged standing, bending, walking, and driving, limitations that were not sufficiently addressed in the other reports.

19Consequently, I find, on a balance of probabilities, that the applicant has demonstrated that he sustained chronic pain with functional impairments that justify his removal from the MIG.

Is the applicant entitled to the disputed treatment plans?

20To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

21The applicant states that the treatment plans were clinically justified due to ongoing impairments. These include pain management, physical rehabilitation, and psychological support.

22The respondent contends that the MIG is applicable and that no additional treatment is necessary.

a. Treatment plans for physiotherapy services

23I find that the applicant is not entitled to the treatment plans for physiotherapy services totalling $4,169.30, $3,935.12, $2,766.48, and $103.81 ($1,289.59 less $1,185.78 approved).

24There are four physiotherapy treatment plans in dispute, all signed by Mr. Solmaz Zanjani, a chiropractor at Body Dynamics Inc. The stated goals of these plans include pain reduction, increased strength, and improved range of motion, with the aim of returning the applicant to normal or modified work activities.

25The first treatment plan, dated July 13, 2022, proposes $4,169.60 in services, including 16 sessions of physical rehabilitation and various therapeutic interventions. As the initial plan, it does not report any clinical progress.

26The second plan, dated September 15, 2022, was partially approved by the insurer, with $1,185.78 paid and $103.81 remaining in dispute. It includes massage therapy, physical rehabilitation, and a reassessment. This plan notes some improvement in the applicant’s left shoulder pain, though functional limitations persisted.

27The third plan, dated October 12, 2022, seeks $3,935.12 for a combination of physical rehabilitation, laser therapy, massage, and exercises. It reports some improvement in pain and range of motion, though pain remained in certain directions.

28The fourth plan, dated November 17, 2023, proposes $2,766.48 in services and notes a resolution of chest pain, some improvement in the lumbar spine, and ongoing left shoulder tendinopathy.

29The applicant relies on CNRs from the family doctor and reports from Drs. Wilderman and Frempong-Manso to support the need for physiotherapy. However, these reports are dated well after the treatment plans, some by over a year, and do not specifically recommend physiotherapy at the time the plans were proposed. For example, Dr. Frempong-Manso’s April 17, 2024, report recommends general physical activity and massage, but this advice is not contemporaneous with the 2022 treatment plans. Similarly, Dr. Wilderman’s recommendations are broad and not tied to the specific disputed plans.

30The respondent argues that the treatment plans are not reasonable and necessary because the applicant’s injuries are minor and within the MIG. Dr. Klein and Dr. Krievins' independent examinations concluded that the applicant has only soft tissue sprain/strain injuries without signs of significant ongoing impairment. The applicant has returned to work, is independent in personal care, and shows no functional limitations needing further treatment. Additionally, Michelle Becker’s Functional Abilities Evaluation found the applicant's physical abilities match his pre-accident job demands with no significant limitations.

31The respondent made a partial payment toward the treatment plan dated September 15, 2022, approving $1,185.78 and leaving a disputed balance of $103.81. The respondent claims that the applicant’s injuries fall within the MIG, which limits entitlement to $3,500 in medical and rehabilitation benefits. However, the respondent did not provide documentation confirming that the MIG limit had been exhausted at the time of payment. Additionally, the applicant did not submit evidence or an argument clarifying whether the remaining balance was incurred or payable. Since I have determined that the applicant’s injuries fall outside the MIG, the $3,500 cap no longer applies. Furthermore, without clear evidence that the respondent’s payment reflects the maximum available under the applicable policy, I cannot conclude that it has fully met its obligations under the Schedule based solely on this payment.

32While the applicant has been diagnosed with chronic pain, a diagnosis alone does not establish that the specific services proposed in these treatment plans were reasonable and necessary at the time. There is no evidence from any treating practitioner recommending physiotherapy contemporaneously with the disputed plans.

33I find that the applicant has not met the burden of proving, on a balance of probabilities, that the treatment plans dated July 13, October 12, 2022, and November 17, 2023, were reasonable and necessary.

34Consequently, I find, on a balance of probabilities, that the applicant has not demonstrated entitlement to the disputed plans for physiotherapy services.

b. Treatment plan for chronic pain assessment

35I find that the applicant is entitled to the chronic pain assessment.

36The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

37The plan dated September 28, 2023, for $2,413.00 for a chronic pain assessment is signed by Dr. Roja Rohani, a physiotherapist. The outlined goal is to determine the severity of chronic pain symptoms.

38The applicant submits that the chronic pain assessment is reasonable and necessary. He argues that despite ongoing treatment, his symptoms, including chronic back pain, reduced range of motion, tenderness, and functional limitations, persisted and warranted a comprehensive evaluation. The applicant’s family doctor referred him to a pain clinic on two occasions, and both Dr. Drakhshan and Dr. Frempong documented clinical findings consistent with chronic pain. Dr. Wilderman, who conducted the assessment, diagnosed the applicant with chronic pain syndrome and found that he met multiple criteria under the AMA Guides, 6th Edition. The applicant relies on Tribunal decisions confirming that a chronic pain assessment is appropriate where there is prolonged pain and functional impairment, even if a formal diagnosis has not yet been made. Accordingly, the applicant maintains that the assessment was necessary to determine the extent of his condition and guide further treatment.

39The respondent submits that the treatment plan for a chronic pain assessment is not reasonable or necessary given the nature of the applicant’s injuries and the treatment already provided. Relying on the independent examination conducted by Dr. Klein, the respondent submits that the applicant does not meet the criteria for chronic pain syndrome as outlined in the AMA Guides, 6th Edition. The respondent further notes that the applicant remains able to drive and is independent in personal care, which undermines the need for a chronic pain assessment.

40I find that the assessment aligns with chronic pain complaints documented in multiple sources as set out above. The applicant's symptoms warrant a formal assessment of the severity of his chronic pain, as supported by Dr. Wilderman's report.

41As a result, I find, on a balance of probabilities, that the applicant has established entitlement to the chronic pain assessment.

Is the applicant entitled to an IRB in the amount of $400.00 for the period from December 9, 2022, to July 7, 2024?

42I find that the applicant is not entitled to payment of an IRB for the period from December 9, 2022, to July 7, 2024.

43To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

44The applicant claims entitlement to income replacement benefits from December 9, 2022, to July 7, 2024, citing his inability to perform the essential tasks of his pre-accident work as an Uber driver. Before the accident, he worked over 50 hours weekly; afterward, he was limited to about 30 hours due to chronic back pain, which made prolonged sitting intolerable. His duties involved sitting, lifting, carrying, and bending. Medical reports from Drs. Drakhshan, Frempong, and Wilderman show reduced motion, sacroiliac joint dysfunction, radiculopathy, and chronic pain syndrome. Dr. Wilderman states he was substantially unable to perform his pre-accident work. The applicant also references his 2023 Notice of Assessment, showing a negative income, and an IRB calculation from S&T Accounting of $12,528.42 up to October 31, 2023.

45The respondent disputes the applicant’s entitlement to IRB past December 8, 2022, arguing that he does not have a substantial inability to perform his pre-accident job. It cites an independent medical examination by Dr. Krievins, who found the injuries minor and stated that the applicant could resume his pre-accident duties without restrictions. He noted the applicant returned to part-time Uber driving with only regular stretch breaks recommended. The respondent also claims that the applicant hasn't provided sufficient documentation of his post-accident earnings or work hours, despite having access to Uber payment summaries, and thus has not proven the IRB amount owed.

46The applicant relies on his ongoing inability to resume full hours and duties as an Uber driver. While the initial approval of IRBs and subsequent reassessments support a period of functional impairment, the precise start date of IRB entitlement is unclear from the parties’ submissions. The respondent terminated IRB payments effective December 23, 2022, based on the findings of an Insurer’s Examination conducted by Dr. Krievins and Ms. Michelle Becker, a certified kinesiologist, as outlined in a letter dated December 22, 2022. The respondent concluded that the applicant no longer met the eligibility criteria for IRBs as of that date.

47To determine whether the applicant experiences a significant inability to perform the essential tasks of his employment after the accident, I need first to identify what these essential tasks are based on the submissions and evidence before me.

48At the time of the accident, the applicant was employed as an Uber driver, performing both passenger transportation and food delivery services. He reported working over 50 hours per week in the period immediately preceding the accident. According to the functional abilities information he provided to Ms. Becker in her report dated December 7, 2022, his essential job tasks included prolonged sitting and driving, as well as physically demanding activities such as standing, walking, lifting from the floor, carrying, pushing and pulling, crouching, bending, reaching (both immediate and overhead), and stair climbing.

49The applicant submits that he has a substantial inability to perform prolonged sitting and driving for extended hours, which he identifies as the most essential task of his pre-accident employment. He claims that due to chronic back pain, he is now limited to working approximately 30 hours per week, even with the use of pain medication and injections. In contrast, the respondent argues that the applicant does not suffer from a substantial inability to perform the essential tasks of his employment. Relying on the independent examination by Dr. Krievins, the respondent submits that the applicant’s injuries are minor and that he is capable of returning to work without restrictions, aside from taking regular stretch breaks.

50I find that the essential tasks of the applicant’s pre-accident employment included passenger transportation and food delivery by car, which involved driving, sitting, standing, walking, carrying, pushing, pulling, reaching, and climbing stairs for approximately 50 hours a week.

51Now, I will proceed to assess whether the applicant has a substantial inability to perform these tasks due to the accident.

52In his report dated May 10, 2024, Dr. Wilderman diagnosed the applicant with a chronic pain disorder, stating that it limits his ability to engage in daily activities as he did prior to the accident. The applicant reported to Dr. Wilderman that he had worked 50 or more hours per week before the accident but has since reduced his work to approximately 30 hours per week due to ongoing pain. This aligns with Ms. Becker’s report, in which the applicant indicated he was working 50–60% of his pre-accident hours. While Dr. Wilderman concluded that the applicant experiences a substantial and continuous impairment in performing his employment functions, this conclusion appears to be based on the reduction in hours rather than a substantial inability to perform the essential tasks. As such, the evidence suggests a partial rather than substantial inability to carry out the essential tasks of his pre-accident employment.

53While the applicant has demonstrated some ongoing limitations due to chronic pain, the evidence does not establish a substantial inability to perform the essential tasks of his pre-accident employment. He has continued to work approximately 30 hours per week, representing 50–60% of his pre-accident hours, which indicates a capacity to perform the core duties of his job, albeit on a reduced schedule. As such, I find that the applicant has not met the threshold under section 5(1) of the Schedule for continued entitlement to IRB beyond December 8, 2022.

54Based on the evidence before me, I find that the applicant has not demonstrated a substantial inability to perform the essential tasks of his pre-accident employment beyond December 8, 2022. Accordingly, the applicant is not entitled to further IRB after that date.

Interest

55Interest applies to the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits in accordance with s.51.

Award

56The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

57In his submissions, the applicant did not address the award claim. Consequently, I find that the applicant has not met his onus to demonstrate that the respondent’s conduct reaches the level of being unreasonable, frivolous, vexatious, or in bad faith in withholding or delaying the payment of benefits.

58As a result, no award is payable.

ORDER

59For the above reasons, it is ordered that: