Citation: Melbourne v. Wawanesa Mutual Insurance Company, 2026 ONLAT 24-006512/AABS

Licence Appeal Tribunal File Number: 24-006512/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:

Jamol M Melbourne

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Serena Rhyman, Paralegal

For the Respondent:

Aliza Lalji, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jamol Melbourne, the applicant, was involved in an automobile accident on September 21, 2020, 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, Wawanesa Mutual Insurance 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:

1. 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?

2. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from October 21, 2020, to date and ongoing?

3. Is the applicant entitled to medical benefits and cost of examination expenses proposed by Midland Wellness Centre, as follows:

i. $2,860.58 for physiotherapy services, in a treatment plan submitted December 23, 2022;

ii. $3,451.82 for physiotherapy services, in a treatment plan submitted April 18, 2022;

iii. $2,164.00 for an attendant care assessment, in a treatment plan submitted April 18, 2024; and

iv. $2,164.00 for a chronic pain assessment, in a treatment plan dated April 18, 2024?

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

RESULT

1After considering both parties’ submissions and all of the evidence I find:

1. The applicant sustained a minor injury. He is not entitled to the OCF-18s in dispute.

2. The applicant is not entitled to a NEB in the amount of $185.00 per week from October 21, 2020, to date.

3. The applicant is not entitled to interest.

BACKGROUND

2On May 19, 2019, the applicant was involved in a motor vehicle accident (“accident”) where he sustained injuries to his right shoulder, neck and back which developed into chronic pain.

3On September 20, 2021, the applicant was involved in the subject accident in which he sustained injuries to his hands, back and neck. He submits that he also developed a sleep disorder and psychological impairment as a result of this accident.

4On October 22, 2022, the applicant was involved in a third accident where he sustained a concussion.

ANALYSIS

The applicant’s accident-related impairments fit within 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 balance of probabilities that his accident-related impairments fall outside of the MIG.

7The applicant argues that he should be removed from the MIG due to a pre-existing medical condition, primarily chronic neck and back pain, which would prevent recovery if he is kept in the MIG. He also submits that the subject accident exacerbated his pre-existing chronic pain and resulted in functional limitations. In addition, he also asserts that he sustained a sleep disorder and psychological impairment as a result of the accident which removes him from the MIG. In support of his position, he relies on an application for accident benefits, the pre- and post-accident clinical notes and records (“CNRs”) of Dr. O’Brien, his family doctor and the CNRs of his treating pain clinic.

8The respondent argues that the applicant’s accident-related impairments fit within the MIG. It submits that the applicant has not provided compelling medical evidence of a treating practitioner to support that any pre-existing medical condition would prevent him from achieving maximum medical recovery within the MIG. It relies on the insurer examination (“IE”) report of Dr. Marchie, physiatrist who determined that the applicant sustained soft tissue injuries. It also relies on the IE of Dr. Silverman, psychologist who determined that there was no diagnosable psychological impairment. The respondent also maintains that the applicant’s chronic pain complaints flow from the accident which occurred in May 2019. Further, the applicant’s submissions failed to mention that he was involved in a more serious accident in October 2022. It submits that any impairments the applicant has are attributed to these accidents.

Pre-existing Condition

9I find that the applicant is not removed from the MIG as a result of a pre-existing medical condition for the following reasons.

10It 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 recovery in the MIG. Although I acknowledge that the applicant suffered from chronic neck and back pain following the May 2019 accident, there is no evidence from a treating practitioner that this condition would prevent the applicant from achieving maximum medical recovery within the MIG. As a result, I find the applicant has not met his onus in proving that he should be removed from the MIG as a result of a pre-existing condition.

Chronic Pain

11I find the applicant is not removed from the MIG as a result of chronic pain for the following reasons.

12The applicant argues that his current chronic pain condition was either caused or exacerbated by the subject accident. He submits that the legal test to be applied to address causation in this case is the material contribution test because he has had three accidents within a short period of time and therefore it is impossible to determine which accident was the cause of his impairments. He relies on the Tribunal’s decision in 16-001985 v. Aviva Insurance Company of Canada, 2017 CanLII 22323 (ON LAT) where the adjudicator found that it was appropriate to apply the material contribution test. It is important to note that I am not bound by this Tribunal’s decisions. However, I find 16-001985 distinguishable from this case because the adjudicator had evidence before them to conclude that the accident exacerbated the insured’s mental health condition. I do not have this type of evidence before me in the present case.

13I find that it is well established law that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis of his claim for accident benefits. The court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability, and that the accident need not be the only cause of the impairment but must be a necessary cause. In Sabadash the court stated that the material contribution test is to be used in rare situations where it is impossible to determine the cause. I do not find that this applies to the current case for the following reasons.

14First, I find there is a lack of medical evidence following the subject accident which documents any accident-related impairments. In his submissions, the applicant refers to an emergency room visit from the date of the accident. However, it was not in the medical records relied upon. The CNRs of the applicant’s family doctor consistently reference the May 2019 accident when referencing chronic neck and back pain. Further, the applicant did not report the subject accident to his family doctor until February 2023, which was almost two and half years post-accident. This is the only medical record that mentions the accident. In addition, I find the applicant has not linked his referral to the sleep clinic to the accident and I note that the referral on its own does not support that he sustained a sleep disorder because of the subject accident. I find the applicant has not proven that but for the subject accident that he either developed chronic pain or that his chronic pain was exacerbated because of same. Finally, as set out in Sabadash in order to determine causation it is necessary to conduct an analysis of a person’s pre- and post-accident function. I note that I have minimal evidence regarding the applicant’s pre- and post-accident function before me to conduct a robust analysis in this case.

15Second, I do not find the CNRs of the pain clinic persuasive evidence that the September 2020 accident made the applicant’s chronic pain condition worse. A consult note from Dr. Chen, chronic pain specialist dated June 21, 2021, indicates that the applicant had three motor vehicle accident in May 2019, November 2019 and May 2020. The applicant reported neck, shoulder and back pain. The doctor’s impression was that the applicant had chronic neck, shoulder, back and knee pain. Of significance, this report does not reference the September 2020 accident.

16Third, the respondent relies on the IE report of Dr. Marchie. The report notes that the doctor reviewed the pre- and post-accident medical records including diagnostic imaging of the applicant’s knee, and cervical and lumbar spine. The doctor conducted a physical examination and concluded that the applicant sustained soft-tissue injuries which could be treated in the MIG. I accept Dr. Marchie’s opinion because the doctor reviewed medical records and conducted a physical examination which supported the doctor’s conclusions.

17For the above-noted reasons, I find the applicant is not removed from the MIG due to chronic pain.

Psychological Impairment

18I find the applicant is not removed from the MIG due to a psychological impairment for the following reasons.

19The applicant did not make meaningful submissions to support that he should be removed from the MIG because of any accident-related psychological impairment. However, his submissions refer to the CNRs of his family doctor which note poor mood and that he was referred to counselling in 2022 so I will address this issue for completeness. I find the applicant has not linked his complaints of poor mood to the subject accident. The family doctor’s CNRs refer to the May 2019 accident as the reason for his poor mood. In addition, the two counselling notes establish that he attended two sessions in 2022 and wanted to discuss relationship issues. He was subsequently discharged from treatment after the second visit. I find the applicant has not produced persuasive evidence that he sustained a psychological impairment as a result of the accident.

20In contrast, the respondent relies on the IE of Dr. Silverman who found no evidence of a psychological impairment. Dr. Silverman reviewed medical records, conducted a clinical interview and administered psychometric tests. Dr. Silverman concluded that there were validity issues with the applicant’s results on the psychometric tests in which he endorsed exaggerated and highly unusual symptoms which were not in the norm compared to the rest of the population. The doctor also notes that the applicant was a poor historian. Dr. Silverman concluded that there was no diagnoseable psychological impairment as a result of the accident which would remove the applicant from the MIG. I accept Dr. Silverman’s opinion because it is consistent with the medical record before me.

21I find the applicant has not met his onus in proving that he sustained a psychological impairment as a result of the accident.

22For the above-noted reasons, I find the applicant’s accident-related impairments fit within the MIG.

The applicant is not entitled to any of the OCF-18s in dispute

23The case conference report and order indicated that there is $3500 left in the MIG limit. Neither party indicated in their submissions whether the amount remaining in the MIG is still the same in their submissions. I find the applicant failed to make proper submissions in support of his position that any of the OCF-18s in dispute are reasonable and necessary. His only argument was that he needs treatment and that he is entitled to all of the OCF-18s because his impairments fall outside of the MIG. The applicant also failed to submit the OCF-18s in dispute. The applicant submitted the denials of the OCF-18s through HCAI but not the OCF-18s themselves.

24I conclude the applicant has not met his onus in proving that any of the OCF-18s are reasonable or necessary. He is entitled to apply for treatment within the MIG.

The applicant is not statute barred from disputing his claim for NEBs

25Section 56 of the Schedule states that an application under subsection 280(2) of the Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed

26The respondent submits that the applicant is barred from proceeding with his dispute of the NEB because he did not dispute the respondent’s denial of the benefit within two years pursuant to s. 56 of the Schedule.

27On April 13, 2023, the respondent sent the applicant a letter which advised that throughout the two-year period it had not received a disability certificate (“OCF-3”) or an employers confirmation form (“OCF-2”) to apply for any specified benefits. It then stated that since it is now past the two-year mark, we are notifying you that you are no longer eligible to apply for a NEB. Further, that pursuant to s. 36 of the Schedule, no benefits are payable before receiving the completed OCF-3. It then set out the process for the applicant to dispute its denial. The applicant filed his application with the Tribunal on May 21, 2024.

28The applicant did not address this argument in his reply submissions. However, I find the applicant is not barred from disputing his entitlement to a NEB because he applied to the Tribunal disputing the respondent’s denial of the NEB on May 21, 2024, which was within two years of the respondent’s denial. However, I find that the applicant has not established entitlement to the NEB which I will address now.

The applicant is not entitled to a NEB in the amount of $185.00 per week from October 21, 2020, to date.

29Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which focuses on a comparison of the applicant’s pre-and post-accident activities.

30Section 12(3)(c) of the Schedule supports that an insurer is not required to pay a NEB for more than 104 weeks after the accident. Section 36(2) provides that an insured claiming a specified benefit shall submit a completed OCF-3. Section 36(3) provides that an insured who fails to submit a completed OCF-3 is not entitled to a specified benefit for any period before one is submitted.

31As already highlighted above, the applicant argues that he suffers from chronic neck and back pain which has resulted in a sleep disorder and a psychological impairment. He submits that these impairments have prevented him from carrying out his pre-accident activities of daily living.

32The respondent argues that the applicant is not entitled to NEBs because he did not submit an OCF-3 supporting entitlement within 104 weeks of the accident, as required for payment under the Schedule. It also submits that the applicant did not present any compelling arguments or evidence supporting that he meets the disability test for entitlement to the benefit. I agree for the following reasons.

33First, I find the wording in s. 12(1)1 of the Schedule clear that in order to qualify for payment of a NEB an insured must suffer a complete inability to carry on a normal life within the first 104-week period post-accident. Moreover, s. 12(3)(c) supports that an insurer is not required to pay a NEB for more than 104 weeks after the accident. I have no evidence before me to support that the applicant has ever submitted an OCF-3. In fact, the applicant did not address this argument at all. I also find the language in s. 36(3) clear that the respondent is not required to pay the applicant a NEB for any period prior to the OCF-3 being submitted. As a result, I find that the applicant is not entitled to payment of the benefit because he did not qualify or apply for the benefit within the prescribed time under the Schedule.

34Second, I find the applicant has not met his onus in proving on a balance of probabilities that he has a complete inability to carry on a normal life as a result of his accident-related impairments as per the test in Heath. The applicant’s submissions provided a summary of pain complaints and diagnoses from the medical records. However, his submissions did not articulate how this evidence supports that he meets the test for NEBs. I have no evidence before me about what the applicant’s pre-accident activities were or what accident-related impairment prevented him from carrying out those activities. In addition, he did not identify the activities that he values most which would attract more weight under the Heath test. Without this information, I am unable to determine whether he meets the NEB test. Further, as highlighted above, I have little evidence before me that supports that the applicant sustained any significant accident-related impairment. I conclude that the applicant did not meet his onus in proving on a balance of probabilities that he has a complete inability to carry on a normal life as a result of any accident-related impairment. As a result, he is not entitled to a NEB.

The applicant is not entitled to interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have not determined that any payments are overdue the applicant is not entitled to interest.

ORDER

36For the above-noted reasons, I order as follows:

1. The applicant sustained a minor injury. He is not entitled to the OCF-18s in dispute.

2. The applicant is not entitled to a NEB in the amount of $185.00 per week from October 21, 2020, to date.

3. The applicant is not entitled to interest.