Laframboise v. Unifund Assurance Company, 2026 CanLII 21066

Licence Appeal Tribunal File Number: 24-011832/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:

Arthur Laframboise

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: David Wylupek, Counsel

For the Respondent: Samara Maharaj, Counsel Erica Elwin, Counsel

HEARD: By way of written submissions

OVERVIEW

1Arthur Laframboise, the applicant, was involved in an automobile accident on November 30, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2020 (including amendments effective June 1, 2026) (the “Schedule”). The applicant was denied benefits by the respondent, Unifund Assurance Company, 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?

ii. Is the applicant entitled to $3,192.50 for physical rehabilitation and acupuncture, proposed by Spine Joint & Sports Injuries Clinic, in a treatment plan dated June 30, 2023?

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

RESULT

3I find that the applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

4I find that the applicant is not entitled to the treatment plan for physical rehabilitation and acupuncture, dated June 30, 2023, or interest.

PROCEDURAL ISSUES

Late Submissions

5The respondent submits that the applicant’s written submissions contravene the Case Conference Report and Order (“CCRO”) dated April 22, 2024. The respondent requests that an adverse inference be drawn against the applicant for failing to provide his written submissions and evidence in accordance with the established timelines. The respondent submits that the applicant was required to serve and file his written submissions and evidence on August 13, 2025. However, the respondent first received a copy of the applicant’s written submissions on August 18, 2025. The respondent argues that it wrote to the applicant’s representative on August 15, 2025, and requested a copy of the applicant’s written submissions. In response on August 18, 2025, the applicant’s representative advised that it had served submissions one week before via OneDrive on August 14, 2025. The respondent argues that to date it has not received any confirmation to substantiate that the applicant’s submissions were served via a OneDrive link before August 18, 2025.

6I find that the applicant’s submissions were filed and received by the Tribunal on August 14, 2025. The Certificate of Service submitted by the applicant indicates that the submissions were sent via email to Samara Maharaj and Diana Mascherin.

7While I accept the respondent’s submissions that it did not receive the applicant’s submission by email on August 14, 2025, I find that this was likely a clerical error and not an intentional disregard of the timelines set out in the CCRO. I further find that the respondent has not made any submissions as to the prejudice it suffered as a result of the delay in receiving the applicant’s submissions. I therefore do not grant the respondent’s request that I draw an adverse inference against the applicant.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

8I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

9Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

10An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.

11The applicant argues that he should be removed from the MIG because he has a documented pre-existing medical condition which would prevent maximal medical recovery within the MIG. He has not made any submissions that he should be removed from the MIG due to other reasons, such as a non-minor physical injury, a chronic pain condition or a psychological impairment.

12The applicant submits that he has been disabled from employment since 1988 and relies upon the report of Dr. R. Musgrove, dated July 23, 1992, which indicates that the applicant has been disabled with lumbar disc disease with bilateral sciatica. The applicant encloses a copy of his WSIB file and the acceptance letter dated November 24, 1994 for his claim for CPP Disability Benefits.

13The applicant then submits that he remains profoundly disabled as a result of the accident. The applicant relies on the treatment plan of Anthony Mastrodicasa, physiotherapist, dated June 30, 2023, which he submits indicates that the applicant’s previous back surgeries are likely to prove a barrier to recovery and accordingly lift him out of the MIG. I note that a copy of the treatment plan was not provided by the applicant. The applicant has attached page two of a report by Dr. Mastrodicasa that lists his clinical impression of the applicant as cervical sprain/strain; left rotator cuff impingement, sprain/strain > than right rotator cuff impingement, sprain/strain; left sub-deltoid bursitis; left bicipital bursitis; thoracic sprain/strain; mechanical back pain; left L2, L4 – SI nerve root impingement, and left hip strain > right hip strain – with rectus femoris and hamstring involvement. The complete report has not been provided for my review and there is no date indicated on the excerpt provided.

14The applicant also refers to the Insurer’s Examination (“IE”) report of Dr. Pankaj Bansal, dated August 24, 2023, and submits that the findings must be discounted as those of a paid professional advocate. He criticizes the finding that the prognosis in recovering from soft tissue type injuries is a maximum of three months from the time of injury. He claims that this position is not accepted by the Tribunal and is a clear pronouncement of bias.

15The respondent submits that the applicant has failed to meet his onus and that his injuries fall within the purview of the MIG. The respondent argues that the mere existence of any pre-existing condition does not automatically exclude a person’s impairment from the MIG. Exclusions on the basis of pre-existing conditions are expected to be made “in extremely limited circumstances”. (see: 17-001129 v. Unifund Claims Inc., 2017 CanLII 77341 (ON LAT), at paragraphs 16 and 17).

16The respondent relies upon the IE report of Dr. Bansal, dated August 24, 2023 to support that the applicant’s injuries fall within the MIG. Dr. Bansal concluded that the applicant sustained uncomplicated soft tissue injuries involving the neck. With respect to his pre-existing injuries, Dr. Bansal opined that the applicant does not suffer from a pre-existing medical condition that would prevent him from achieving maximal recovery from his accident-related injuries. On examination, there was no valid signs of musculoskeletal, orthopedic or neurological injuries.

17The respondent also relies upon the Clinical Notes and Records (“CNRs”) of the applicant’s family doctor, Dr. Joseph Zakaria where the three post-accident CNRs provided note that the applicant was diagnosed with a cervical neck strain and headaches as a result of the accident. The respondent submits that while Dr. Zakaria was familiar with the applicant’s prior medical history, he never concluded that the same would prevent his maximal recovery if kept within the MIG.

18With respect to the applicant’s submissions that Part 9(c) of the disputed treatment plan points out that the applicant’s previous back surgeries is a barrier to recovery, the respondent submits that merely reproducing the particulars of the treatment plan, completed after the accident, falls vastly short of the “compelling medical evidence standard”. It submits that the applicant offers no explanation as to how the applicant’s prior back surgeries from over 20 years ago will prevent his recovery if kept within the MIG.

19I do not find that the applicant has proven that he has a pre-existing medical condition that prevents maximal recovery if he is kept within the MIG for the following reasons.

20First, I find that the standard for removal from the MIG on the basis of a pre-existing condition is well defined and strict. A pre-existing condition will not automatically removal an insured from the MIG. The MIG expressly states that exclusions on the basis of pre-existing conditions are expected to be made in extremely limited circumstances and that granting such exclusions on any evidence that falls short of the prescribed “compelling standard” is inconsistent with the intent of the Schedule and the MIG.

21Second, while I accept the applicant’s evidence that he suffered a back injury in 1988 and was diagnosed with lumbar disc disease with bilateral sciatica, the applicant has not provided sufficient evidence from a health practitioner that this pre-existing medical condition will prevent him from achieving maximal medical recovery if he is subject to the MIG limits which is the test that must be met. The applicant has not pointed or directed the Tribunal to sufficient medical evidence or an opinion from a treating practitioner that his pre-existing back impairment would affect his recovery from the subject accident, as required by s. 18(2). I further agree with the respondent’s submission that the applicant’s inclusion of his voluminous WSIB file without pinpointing the evidence that should be reviewed by the Tribunal is insufficient to support his position. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the reports provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50.

22Third, while the applicant has not provided a copy of the treatment plan he refers to in his submissions, the respondent has attached a copy for my review. Upon review of the treatment plan, dated June 30, 2023, Part 7(a) states that the applicant had back surgery x. 3 – Dr. Lockstadt. He has checked off “yes” for whether the applicant has any disease, condition, or injury that could affect his response to treatment for his injuries. I do not find that this treatment plan on its own, without any further compelling evidence or an opinion, is sufficient to meet the test in s. 18(2)(b). I agree with the respondent that reproducing the particulars of the treatment plan, falls short of the “compelling medical evidence standard”, as it offers no explanation as to how the applicant’s prior back surgeries will prevent his recovery if he is kept within the MIG. In addition, the applicant’s inclusion of an excerpt from a report of Mr. Mastrodicasa, while it lists the diagnoses made, it does not refer to the applicant’s pre-accident history or comment on the effect on his recovery.

23Fourth, I give weight to the Disability Certificate prepared by C.A.R.E. Institute, dated December 12, 2022, that indicates under Part 8 Prior and Concurrent Conditions, that the applicant does not have any disease, condition, or injury that affected his ability to perform the activities listed in Part 6.

24Fifth, upon review of the post-accident CNRs of Dr. Zakaria, there is no diagnosis of a back injury sustained by the applicant in the accident and the only diagnoses in these records are a cervical strain and headache. I agree with the respondent that there is no indication in these records that Dr. Zakaria was of the opinion that the applicant’s pre-existing back condition would affect his post-accident recovery.

25Finally, while the applicant criticizes the report of Dr. Bansal in his submissions, I do not accept that Dr. Bansal was biased or that his report should be discounted because he is a paid professional advocate. Section 44 of the Schedule provides that an IE may be requested for the purpose of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit. The applicant is entitled to disagree with the findings of an IE report, but that does not mean the assessor is biased or that a report should be discounted without evidence proving otherwise.

26For the reasons outlined above, I find that the applicant has not proven that he should be removed from the MIG as a result of any pre-existing condition.

Entitlement to the Treatment Plan dated June 30, 2023

27As I have found that the applicant remains within the MIG, it is not necessary for me to consider whether the disputed treatment plan dated June 30, 2023 is reasonable and necessary.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

29For the reasons outlined above, I find:

i. The applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plan for physical rehabilitation and acupuncture, dated June 30, 2023;

iii. The applicant is not entitled to interest; and

iv. The application is dismissed.