Licence Appeal Tribunal File Number: 24-007217/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:
Wendy Lavictoire
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Ilona Agivaeva, Counsel
For the Respondent:
Sabina Arulampalam, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Wendy Lavictoire, the applicant, was involved in an automobile accident on March 1, 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 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:
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?
Is the applicant entitled to $768.25 for physiotherapy services, proposed by Body N’ Balance, in a treatment plan (“OCF-18”) dated September 6, 2023?
Is the applicant entitled to $2,936.86 for a chronic pain assessment proposed by Medex Assessments Inc, in an OCF-18 dated April 12, 2024?
Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions the applicant withdrew her claim for a psychological assessment proposed by Medex Assessment Inc. In return, the respondent withdrew the preliminary issue raised in relation to same. As a result, I will not be addressing these issues in this decision.
RESULT
4After reviewing both parties’ submissions and evidence I find:
The applicant sustained a minor injury and is subject to treatment within the MIG limit.
The applicant is entitled to any incurred amounts for the OCF-18 for physiotherapy in the amount of $768.25 dated September 6, 2023, starting on the 11th business day after it was submitted.
The applicant is not entitled to the OCF-18 for $2,936.86 for a chronic pain assessment in an OCF-18 dated April 12, 2024.
The applicant is not entitled to interest or an award.
ANALYSIS
The applicant sustained a minor injury which is treatable in the MIG.
5Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”
6An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on a balance of probabilities that her accident-related impairments fall outside of the MIG.
7The applicant argues that she should be removed from the MIG because she had a documented pre-existing medical condition which would prevent recovery within the MIG. She also maintains that she sustained a psychological impairment and chronic pain which warrants removal from the MIG. In support of her position, she relies on the clinical notes and records (“CNRs”) of Dr. Brooks, family doctor, a disability certificate prepared by Joel Cooke, physiotherapist dated May 21, 2021, x-rays and the pre-screen psychological report of Dr. Ilacqua, psychologist.
8The respondent argues that the applicant’s accident-related impairments fall within the definition of a minor injury. It submits that the applicant has not met her onus in proving that she should be removed from the MIG as a result of any of the above criteria. It also asserts that the applicant failed to mention in her submissions that she had a slip and fall accident in June 2022, which is responsible for her current complaints and functional limitations. It relies on the CNRs of the applicant’s family doctor, the consult report of Dr. Khodabandehloo, orthopaedic surgeon dated October 4, 2022 and the insurer examination (“IE”) reports of Dr. Stewart, general practitioner dated June 19, 2024, and October 8, 2024 who determined that the applicant sustained soft tissue injuries which could be treated in the MIG.
Pre-existing Condition
9The applicant is not removed from the MIG due to a pre-existing condition for the following reasons.
10I find the applicant’s submissions regarding any pre-existing condition unclear because on the one hand she submits that prior to the accident she did not have any diagnoseable conditions. Yet, then she argues that she should be removed from the MIG due to a pre-existing medical condition because she had been diagnosed with degenerative disc disease and arthritis prior to the accident which was confirmed by an x-ray completed in 2019. She submits that a post-accident x-ray dated December 6, 2021 provided a diagnosis of grade I anterolisthesis of the C3-C4. She also relies on a CNR of her family doctor dated January 5, 2022, which states that her pre-existing issues have been exacerbated by the accident and a CNR from February 2023 which notes that her pre-existing degenerative changes make her more vulnerable to certain injuries.
11The respondent submits that the applicant has not proven that any pre-existing condition would remove her from the MIG. It relies on the above-noted reports of Dr. Stewart who reviewed the medical records and opined that the applicant did not have any pre-existing condition which would prevent her from achieving from maximum medical recovery within the MIG.
12It is well established law that a documented pre-existing condition on its own does not automatically remove a person from the MIG. There must be compelling medical evidence from a treating practitioner supporting that the pre-existing condition would prevent the applicant from maximal recovery if subject to treatment within the MIG limit. I do not find the two CNRs of the applicant’s family doctor to be compelling medical evidence that the applicant’s pre-existing degenerative changes would prevent her from achieving maximal medical recovery within the MIG because the family doctor does not state that. Nor does the family doctor discuss the post-accident x-ray which diagnoses grade I anterolisthesis which I find the applicant has not linked to the accident.
13Moreover, I find the February 2023 CNR which states the applicant’s pre-accident condition make her more vulnerable to injury to be related to the injuries she sustained in the slip and fall accident in June 2022, not the accident, which I will discuss further below.
14In contrast, the respondent relies on the IE report of Dr. Stewart who concluded that the applicant did not have any pre-existing conditions which would preclude her from achieving maximum medical recovery within the MIG. Dr. Stewart completed a clinical interview, reviewed medical documents and conducted a physical examination where the applicant does not mention any ongoing accident-related impairments. I find Dr. Stewart’s opinion consistent with the medical record before me.
15For the above-noted reasons, I find the applicant has not proven that she should be removed from the MIG as a result of any pre-existing condition.
Physical Impairment/Chronic Pain
16The applicant is not removed from the MIG due to any physical impairment or chronic pain for the following reasons.
17First, I find the OCF-3 prepared by Mr. Cooke dated May 21, 2021, establishes that the applicant sustained a minor injury. The physiotherapist lists the following injuries: whiplash associated disorder II; sprain and strain of shoulders; sprain and strain of thoracic spine; sprain and strain of right hip; headaches; and concussion. Other than the reference to the concussion, I find the physical injuries listed on the OCF-3 establish that the applicant’s accident-related impairments fit within the definition of the MIG. Her submissions did not argue that she should removed from the MIG due to a concussion, however, I note that other than the OCF-3 there are no entries that refer to the applicant sustaining a head injury or a concussion in the medical record.
18Second, I find the CNRs of the applicant’s family doctor support that she sustained a minor injury for a few reasons. First, I find there to be a significant gap in the CNRs to support that the applicant suffers from chronic pain as a result of the accident. For example, the CNRs establish that she first attended her family doctor’s office on November 21, 2021, which is over eight months post-accident. She reported neck pain, and the doctor diagnosed her with a WAD II type injury and prescribed Tylenol extra strength. I find this first visit too remote from the date of the accident because there were no medical records between the date of the accident and November 2021 confirming that she suffered from ongoing chronic pain. For these reasons, I give little weight to her subsequent visits to her family doctor on January 3 and April 11, 2022, where she complained of ongoing neck pain and the doctor notes that this impacted her computer work, sleep and daily activities and discussed a possible referral to a pain clinic. Further, the family doctor did not conduct a physical examination on these dates to verify the applicant’s injuries or functional limitations.
19Third, the applicant’s next visit to her family doctor was on July 16, 2022, which notes that she was involved in a slip and fall accident in June 2022 where she sustained injuries to her shoulder and upper extremity. As a result, the doctor referred her to Dr. Khodabandehloo for consultation. I find the consult report of Dr. Khodabandehloo does not mention ongoing neck pain or the accident at all. Further, the doctor’s physical examination of the applicant was unremarkable. The doctor diagnosed her with left bicipital tendinitis which I find to be unrelated to the accident. I give little weight to the applicant’s subsequent visits to her family doctor in 2023 and 2024, and the doctor’s reference to chronic pain syndrome because I find these visits to be unrelated to the accident. Nor do I find the applicant’s sporadic visits to her family doctor establish that she suffers from chronic pain as a result of the accident.
20In contrast, the respondent relies on the above-noted IE reports of Dr. Stewart who concluded that the applicant sustained a sprain and strain impairment of the cervical spine as a result of the accident which fit within the MIG. During Dr. Stewart’s IE the applicant did not report ongoing neck pain. Instead, she reported left arm pain, right trapezius pain, right forearm pain, right wrist pain and right hip pain. I find on a balance of probabilities that these impairments are related to the applicant’s slip and fall in June 2022 not the accident. Based on the medical evidence before me I accept Dr. Stewart’s opinion that the applicant sustained a minor injury because it is consistent with the medical evidence.
21For the above-noted reasons, I find the applicant has not proven that she sustained a physical impairment or chronic pain as a result of the accident which removes her from the MIG.
Psychological Impairment
22The applicant is not removed from the MIG as a result of an accident-related psychological impairment for the following reasons.
23The applicant relies solely on the pre-screen report of Dr. Ilacqua, psychologist attached to the OCF-18 dated April 16, 2021, to support that she should be removed from the MIG due to a psychological impairment. I find this pre-screen report insufficient evidence to establish that the applicant sustained a psychological impairment as a result of the accident. The applicant reported to Dr. Ilacqua that post-accident she was experiencing anxiety, nervousness, stress, difficulty sleeping due to nightmares, poor memory and a lack of interest in pre-accident activities. She also reported being more confrontational with family members, depressive episodes and driving anxiety. Under accident injury or sequalae on the form Dr. Ilacqua lists “adjustment disorder, generalized anxiety disorder and depressive episode amongst other symptoms.”
24I do not find the pre-screen report of Dr. Ilacqua persuasive because the applicant did not report any psychological symptoms or complaints to her family doctor and there is no evidence before me to support that she has been diagnosed with an accident-related psychological impairment.
25The applicant relies on the Tribunal’s decision in 17-005791 v. Aviva Insurance Canada (“17-005791”), 2018 CanLII 122107 (ON LAT) which she maintains that the adjudicator concluded that the mere presence of psychological symptoms was sufficient to remove the insured from the MIG. Of significance, I am not bound by this Tribunal’s decisions. However, I find the applicant mischaracterized the adjudicator’s findings in 17-005791 because the adjudicator had two competing psychological reports, where the psychologists administered psychometric tests, and the adjudicator preferred the insured’s psychological report because it was consistent with the family doctor’s CNRs which noted psychological complaints. The adjudicator also found that the results of the insurer’s s.44 IEs supported that the applicant sustained a psychological impairment. Although the adjudicator does classify the insured’s psychological symptoms as the reason for MIG removal, when the decision is read as a whole, I find the adjudicator accepted that the insured sustained a psychological impairment as a result of the accident. I do not have this evidence before me in this case.
26I conclude that the applicant has not met her onus in proving on a balance of probabilities that she should be removed from the MIG as a result of any accident-related psychological impairment.
The applicant is not entitled to the OCF-18s in dispute
27Neither parties’ submissions addressed whether the MIG limits have been exhausted as directed by the adjudicator in the Tribunal’s case conference report and order. However, I find that she is not entitled to either OCF-18 because they both seek treatment outside of the MIG. The applicant is not precluded from seeking treatment within the MIG limit. However, the applicant also submits that the respondent is liable to pay for the OCF-18 for physiotherapy in the amount of $768.25 because the respondent’s notice did not comply with s. 38(8) of the Schedule which I will address next.
28Section 38(8) of the Schedule outlines that within 10 days of receiving a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan the insurer agrees to pay for, any the insurer does not agree to pay for and 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. Section 38(11) 2 of the Schedule supports that if an insurer’s notice does not comply with s. 38(8) it is liable to pay for the OCF-18 if it is incurred by the insured after the 11th day until the insurer provides a compliant notice.
OCF-18 for Physiotherapy - $768.25
29The applicant submits that the respondent did not issue a proper denial in response to the OCF-18 for physiotherapy in the amount of $768.25. She argues that the respondent did not provide any denial in writing at all in response to this OCF-18 throughout the adjustment of the applicant’s claim.
30The respondent maintains that its denial complied with s. 38(8) of the Schedule. It relies on correspondence to the applicant dated September 21, 2023, which stated “we are in receipt of a treatment and assessment plan (“OCF-18”) completed on behalf of Body n Balance Physio & Wellness on September 6, 2023. The OCF-18 recommends goods and services in the amount of $768.25.” The correspondence then stated that based on the information on file the applicant’s injuries fall within the MIG. The medical reason for denying the benefit states that “the OCF-18 indicates that your injuries are not predominantly minor in nature. However, there is a lack of documentation on file that would support your removal from the MIG.” It then requested the CNRs of the applicant’s treating practitioner, hospital and any specialist and enclosed a copy of the OCF-18 being denied.
31I find the applicant’s position that the respondent never issued a denial in response to this OCF-18 to be inaccurate. However, I find the respondent’s notice did not comply with s. 38(8) of the Schedule as it did not respond to the OCF-18 within 10 days as its correspondence was dated September 21, 2023. Otherwise, I find the medical reasons provided in its denial sufficient because it advised the applicant that it believed the MIG applied and requested medical records from the applicant and enclosed a copy of the OCF-18 being denied. For these reasons, I find the applicant is entitled to any incurred amounts starting on the 11th business day after the OCF-18 was submitted.
The applicant is not entitled to interest
32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.
ORDER
33For the above noted reasons, I order as follows:
The applicant sustained a minor injury and is subject to treatment within the MIG limit.
The applicant is entitled to any incurred amounts for the OCF-18 for physiotherapy in the amount of $768.25 dated September 6, 2023, starting on the 11th business day after it was submitted.
The applicant is not entitled to the OCF-18 for $2,936.86 for a chronic pain assessment in an OCF-18 dated April 12, 2024.
The applicant is not entitled to interest or an award.
This application is dismissed.
Released: February 26, 2026
Rebecca Hines
Adjudicator