Gemora v. Belair Insurance Company Inc., 2026 CanLII 10374

Citation: Gemora v. Belair Insurance Company Inc., 2026 ONLAT 24-006569/AABS

Licence Appeal Tribunal File Number: 24-006569/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:

Kevin Gemora

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Natalia Poliakova, Paralegal

For the Respondent: Jenna Ng, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kevin Gemora, the applicant, was involved in an automobile accident on May 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 as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit? Note: The parties agree the MIG limits have not been exhausted with $321.60 remaining at the date of the case conference.

ii. Is the applicant entitled to $3,616.00 for medical services, proposed by Minds Neurology Clinic in a treatment plan/OCF-18 submitted June 14, 2022?

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

RESULT

3The applicant has demonstrated on a balance of probabilities that he should be removed from the MIG.

4The applicant is entitled to this assessment and treatment plan for medical services (neurological assessment) from Minds Neurology Clinic.

5The applicant is entitled to interest.

PROCEDURAL ISSUES

6The respondent submitted that the applicant did not comply with the terms of the Case Conference Report and Order of September 20, 2024, in that the applicant’s submissions were two pages in excess of the 7 page maximum length for submissions ordered in the CCRO.

7I also note that the respondent’s submissions did not comply with the 12 point font size ordered in the CCRO.

8I see no procedural unfairness or prejudice in allowing the applicant’s slightly excessive submission length or in the respondent’s 10 or 11 point font size (which effectively lengthens the respondent’s submissions by at least a page, if not more).

ANALYSIS

Minor Injury Guideline

9The applicant has demonstrated on a balance of probabilities that his injuries were not minor injuries as defined by the Schedule.

10Section (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.”

11An insured may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule,” 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 the insured person is 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.

12The applicant submits that he has a concussion as a result of the accident that warrants removal from the MIG. He relies on P.S. v Wawanesa Mutual Insurance Company 2020 CanLII 40359 (ON LAT), 2020 CanLII40359 (ON LAT), which found that a concussion falls outside of the definition of a minor injury

Concussion

13The applicant was involved in a motor vehicle accident on May 14, 2022, and visited the emergency room at Toronto General Hospital (though the applicant’s submissions say Princess Margaret Hospital). He was diagnosed there as having a concussion. The applicant submitted CNRs from Toronto General Hospital that diagnosed a concussion, by emergency room physician Dr. Oliver M. Van Praet.

14He visited his family doctor, Dr. Erin McFadden, at the Etobicoke Medical Centre on May 26, 2022 complaining of headaches, 3-5 episodes of arm and left leg shaking, and numbness in his back. He was referred to Dr. Joseph Bruni, a neurologist at the Minds Neurology Clinic. The referral noted headaches, shaking (seizures) and a concussion. An MRI of the brain and thoracic spine was ordered. An OCF-18 treatment plan was submitted to the respondent by Minds Neurology Clinic for a neurological assessment but was denied by the respondent.

15On September 15, 2022, the applicant wrote to his family doctor complaining about his attention span, time management problems, and being easily distracted.

16The applicant visited the emergency department at St. Joseph’s Hospital on January 14, 2023 and complained of headaches, ringing in his ears and nausea. Following this emergency room visit, he was seen by a neurologist, Dr. Dimitrios Dimitrakoudis on January 15, 2023 and had an MRI the following day. The MRI ruled out more severe brain injuries.

17However, on May 26, 2023 he again visited his family doctor, Dr. Erin McFadden, and complained of headaches, seizures and cramps. He was referred to Minds Neurology Clinic where he complained of these symptoms as well as four episodes of shaking of his left arm and leg.

18The respondent submits that the applicant’s injuries are minor as defined by the Schedule. The respondent refers to three s. 44 examination reports of the applicant that do not show any neurocognitive impairment, physical impairments or specific neurological diagnoses, or any psychological impairments.

19I find that the applicant has an accident-related concussion that warrants removal from the MIG. I make this finding based on the emergency room records on the date of the accident, the applicant’s diagnosis of a concussion by Dr. Van Praet, his consistent reporting of concussion symptoms to Dr. McFadden and his referral by Dr. McFadden to a concussion clinic. I put more weight on this evidence, which consistently indicates, in the period following the accident, that the applicant has a non-minor injury, than on the s.44 reports because they occurred two years post-accident

20While not binding on me, I also agree with the analysis in P.S. v Wawanesa Insurance that a diagnosed concussion is grounds for removal from the MIG. This is especially true in this case, given that the applicant has suffered from other unexplained medical and psychological issues and symptoms which occurred after the subject accident.

21While I acknowledge that the applicant has a history of ADHD and related neurocognitive problems, I nonetheless find, on a balance of probabilities, that he has an accident-related concussion that warrants removal from the MIG.

22The applicant is removed from the MIG.

23The applicant is entitled to this assessment and treatment plan for medical services.

24To 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.

25The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

26The applicant submits that this assessment and treatment plan dated June 13, 2022, is necessary to further investigate and assess his neurocognitive impairments and symptoms that resulted from the accident. The treatment plan notes the injuries as a concussion, headache and epileptic symptoms and identifies the goals of treatment as pain reduction and a return to activities of normal living. These activities are appropriate under the circumstances of the applicant’s diagnosed concussion and associated injuries.

27As set out above, I have found that the subject accident resulted in the applicant’s concussion, confirmed by an Emergency department physician, with symptoms corroborated by the applicant’s family doctor.

28The respondent denied the treatment plan, and said that the applicant’s injuries were minor. The respondent requested an OCF-1 and clinical notes and records from two years pre-accident.

29I have found that on balance of probabilities the applicant has sustained a concussion and is removed from the MIG. It follows, given the applicant’s diagnosed concussion and his neurological symptomology, that there were grounds on which to believe a neurological condition exists that warrants further investigation by way of an assessment. Further, given that the applicant’s symptoms persisted for more than a year following the subject accident, and that the applicant is removed from the MIG, I find on a balance of probabilities that this assessment and treatment plan is reasonable and necessary.

Interest

30Interest applies on the payment of this assessment and treatment plan pursuant to s. 51 of the Schedule.

ORDER

31I order that the applicant is:

i. Removed from the Minor Injury Guideline.

ii. Entitled to $2,000.00 plus applicable taxes for the assessment and treatment plan for medical services.

iii. Entitled to interest on the unpaid assessment and treatment plan.