Dwayne Redcliffe v. Belair Insurance Company Inc., 2026 CanLII 26836

Citation: Redcliffe v. Belair Insurance Company Inc., 2026 ONLAT 24-012518/AABS

Licence Appeal Tribunal File Number: 24-012518/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:

Dwayne Redcliffe

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Bianca Crocetti, Paralegal

For the Respondent: Asal Karimi, Counsel

HEARD: By way of written submissions

OVERVIEW

1Dwayne Redcliffe, the applicant, was involved in an automobile accident on July 5, 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?

ii. Is the applicant entitled to the assessments proposed by Physiomed Leaside, as follows:

a. $3,200.58 for chiropractic services, in a treatment plan dated July 14, 2022, submitted on August 4, 2022;

b. $2,965.50 for chiropractic services, in a treatment plan dated January 13, 2023, submitted on February 24, 2023; and

c. $2,666.00 for chiropractic services, in a treatment plan dated March 21, 2023, submitted on June 14, 2023?

iii. Is the applicant entitled to the assessments proposed by HM Medical, as follows:

a. $2,460.00 for a chronic pain assessment, in a treatment plan, dated October 6, 2022, submitted on October 12, 2022; and

b. $2,674.70 for a chronic pain assessment, in a treatment plan dated December 9, 2024, submitted on February 3, 2025?

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?

3I have amended the dates of the treatment plans in dispute to reflect the dates of the actual treatment plans and the dates the treatment plans were submitted in order to properly address the applicant’s submissions in respect to the respondent’s non-compliance with s. 38(8) of the Schedule which will be discussed below.

RESULT

4I 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.

5I find that the applicant is not entitled to the treatment plans in dispute, an award or interest.

ANALYSIS

Minor Injury Guideline (“MIG”)

6I 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.

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) 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.”

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) 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.

9Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

10The applicant submits that he sustained significant injuries in the subject accident and relies on all of the medical evidence submitted in support of his position. He submits that throughout the Clinical Notes and Records (“CNRs”) he complained of pain to his neck, back and shoulder as well as difficulty moving his head. He also reported anxiety. The applicant relies upon the Clinical Notes and Records (“CNRs”) of Michael Garron Hospital, Dr. Michael Weatherhead, and Physiomed.

11The applicant further relies upon the Disability Certificate, completed by Dr. Abdalrahim Abed, chiropractor, at Physiomed Leaside, undated, which lists his injuries as: concussion and whiplash associated disorder (WAD 2) with complaints of neck pain with musculoskeletal signs; radiculopathy, cervical region; sprain and strain of cervical, thoracic, lumbar spine, shoulder joint and wrist joints; mixed anxiety and depressive disorder; and problems related to other psychosocial circumstances and physical environment.

12The respondent submits that the applicant has not produced any persuasive evidence to show that the injuries he sustained in the subject accident warrant removal from the MIG. The respondent relies upon the Insurer’s Examination (“IE”) reports of Dr. Dinesh Krishna, general practitioner, dated December 5, 2022, May 31, 2023 and July 24, 2023, which found no objective evidence of any significant ongoing physical impairment. It further relies upon the IE reports of Dr. Fathi Abuzgaya, orthopaedic surgeon, dated November 9, 2023 and January 23, 2024, which noted no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident. The respondent submits that the IE reports of Dr. Krishna and Dr. Abuzgaya support the position that the applicant’s injuries are predominantly minor and do not warrant removal from the MIG.

13The respondent relies upon the Tribunal decision in 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT) (“16-00438 v. The Personal), where the Tribunal held that it is not ongoing pain alone that takes an applicant out of the MIG, it must be continuous or of such severity that it causes distress accompanied by a functional impairment or disability.

14I find that the applicant has not demonstrated that he suffers from a chronic pain condition or a psychological impairment as a result of the accident that warrants removal from the MIG. My reasoning is based on the following findings.

15I find that while the applicant has set out in detail the definition of a minor injury, he has not addressed the specific basis on which he is seeking removal from the MIG. I find that the applicant has not made submissions that he suffered a chronic pain condition or a psychological impairment that would warrant removal from the MIG. In addition, he has not made submissions that he suffered a pre-existing condition per s. 18(2). I find that his claim that his injuries are outside of the MIG is based on his submissions that his pain was ongoing.

16I am persuaded to apply the principle in the Tribunal decision in 16-000438 v. The Personal, that ongoing pain alone is insufficient to remove the applicant from the MIG, as the pain must be of a severity that causes suffering and distress accompanied by functional impairment or disability. I find that the applicant has not proved on a balance of probabilities that his ongoing pain was of a significant level or was accompanied by some functional impairment or disability. I find that the applicant’s pain was merely sequelae or a symptom of his minor injuries. I find that the applicant has not pointed the Tribunal to any evidence to demonstrate that his pain prevented him from pursuing work, family or recreational needs or that he developed psychosocial sequelae. I find that the Application for Accident Benefits, dated July 13, 2022, states that he was only off work as a drywaller from July 5, 2022 to July 14, 2022.

17I find that the applicant’s accident-related impairments fall squarely within the definition of minor injuries under the Schedule, as they are all listed as sprain and strain injuries in his Disability Certificate. I find limited medical evidence to support the applicant’s submission that his accident-related impairments are significant, or what specific impairments he believes fall outside of the scope of the MIG. While Dr. Weatherhead indicated in his CNRs that the applicant suffers cervical disk disease, there was no diagnostic imaging supporting this nor an explanation by Dr. Weatherhead as to how he reached this diagnosis. Further, while I accept the applicant’s claims that he had ongoing pain and regularly saw Dr. Weatherhead for the period from January 13, 2023 to June 30, 2023, there is then a lapse in visits until May 15, 2024, which is the last CNR provided documenting his physical complaints. I find that the applicant has not provided a medical opinion or other medical evidence that states he would be prevented from reaching maximal medical recovery if he is kept within the MIG as required by s. 18(2) of the Schedule.

18I further find that there is no actual diagnosis of chronic pain or chronic pain syndrome in the CNRs, and the applicant’s submissions do not engage with any of the six criteria under the AMA Guides. Indeed, while the applicant may have ongoing pain, I do not find evidence that his pain causes the type of functional impairment that would warrant removal from the MIG, as his accident-related prescription history has not been provided, he has not been referred to any specialists, he identifies limited functional issues with his daily activities and he returned to work at his job post-accident, albeit with some reported modifications. In the IE reports, both Dr. Krishna and Dr. Abuzgaya confirmed that the applicant sustained primarily soft tissue injuries that would not prevent maximal medical recovery under the MIG. On the evidence, I accept the opinions of these assessors.

19With respect to removal from the MIG based on a psychological impairment, I find that the applicant has not directed the Tribunal to an actual diagnosis of an accident-related psychological impairment that would warrant removal from the MIG. I find that other than the CNR of Dr. Weatherhead dated April 8, 2025, noting the applicant’s complaint of anxiety, the applicant has not pointed the Tribunal to any other evidence of psychological complaints. I find that this is the first CNR to note any psychological complaints and there was no diagnosis made by Dr. Weatherhead or referral for further psychological evaluation.

20For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

Entitlement to the treatment plans in dispute

21As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

22As an alternative argument, the applicant submits that the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(8) of the Schedule.

23Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. If an insurer fails to provide the requisite denial, under s. 38(11)2 it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial is given.

24The applicant submits that all of the respondent’s denial letters are non-compliant with s. 38(8) of the Schedule. The applicant submits that the respondent’s denials state that based on the medical evidence provided, it believes that his injuries will not fall outside of the MIG. The applicant argues that the denials do not provide a proper medical reason as to why the insurer does not agree to pay for the treatment plans in dispute. It submits that the respondent’s statements are merely boilerplate responses and provide an opinion of the adjuster’s perspective rather than from a medical one.

25The respondent submits that it properly responded to the denial of the five disputed treatment plans in accordance with s. 38(8) of the Schedule, providing the necessary information as detailed in its denial letters. The respondent relied upon the IE reports of Dr. Krishna and Dr. Abuzgaya along with the Schedule in support of these denials.

26I find upon review of the denial letter dated August 11, 2022, that the treatment plan dated July 14, 2022 and submitted on August 2, 2022, was denied based on the information on file which indicates the applicant’s injuries are MIG. The respondent notes that it does not have the benefit of medical documentation to support that the applicant’s injuries would fall outside of the MIG and requests CNRs to assist in its consideration of the proposed treatment. A subsequent letter was sent on November 2, 2022 in respect to this treatment plan advising that based on review of the CNRs of Dr. Weatherhead compared to the criteria in the MIG, the respondent has determined that the applicant’s impairment is predominantly a minor injury. An IE was requested. By letter dated December 20, 2022, the respondent advised that based on the IE report of Dr. Krishna dated December 5, 2022, the applicant’s injuries are MIG and the treatment plan dated July 14, 2022 is not reasonable and necessary.

27I find upon review of the denial letter dated April 3, 2023, that the treatment plan dated January 13, 2023 and submitted on February 24, 2023, was denied based on a review of the CNRs of Dr. Weatherhead and Michael Garro Hospital. The respondent advised that it did not have sufficient compelling medical evidence to support that the applicant’s injuries would fall outside of the MIG. An IE was requested. By letter dated June 14, 2023, the respondent advised that based on the IE report of Dr. Kirshna dated May 31, 2023, the applicant’s injuries are MIG and the treatment plan dated January 13, 2023, is not reasonable and necessary.

28I find upon review of the denial letter dated June 28, 2023, that the treatment plan dated March 21, 2023 and submitted on June 14, 2023, was denied based on a review of the CNRs of Dr. Weatherhead which referenced cervical disk disease. The respondent notes that it is not immediately clear if the disk disease was caused or developed directly from the accident in question. The respondent requested an IE to assess the treatment plan as the last in-person IE occurred seven months ago. By letter dated August 8, 2023, the respondent advised that based on the IE report of Dr. Krishna, dated July 24, 2023, the treatment plan dated March 21, 2023 is not reasonable and necessary. By letter dated November 20, 2023, the respondent further advises that the treatment plan dated March 21, 2023 is denied based on the IE report of Dr. Abuzgaya, dated November 6, 2023. The denial is further confirmed in the respondent’s letter dated February 2, 2024.

29By letter dated October 19, 2022, the treatment plan dated October 4, 2022 and submitted on October 12, 2022, was denied based on insufficient medical documentation to support that the applicant’s injuries would fall outside of the MIG. CNRs are requested pursuant to s. 33 of the Schedule. By letter dated December 20, 2022, the respondent advised that based on the IE report of Dr. Krishna, dated December 5, 2022, the applicant’s injuries are minor and the treatment plan is not reasonable and necessary. By letter dated November 20, 2023, the respondent confirms that the treatment plan dated October 4, 2022 is not reasonable and necessary based on the IE report of Dr. Abuzgaya dated November 6, 2023. The denial is further confirmed in the respondent’s letter dated February 2, 2024.

30By letter dated February 18, 2025, the respondent advises that the treatment plan dated December 9, 2024, and submitted on February 3, 2025, is denied based on the applicant’s injuries being MIG. It notes that the records from Dr. Weatherhead do not support that the applicant suffers from chronic pain. By letter dated July 16, 2025, the respondent advises that as a result of the IE report of Dr. Krishna dated June 30, 2025, the treatment plan is not reasonable and necessary.

31I find that the respondent’s denial letters are all compliant with s. 38(8) of the Schedule. I do not agree that the denials are boilerplate denials and do not provide a proper medical reason. I find that each of the letters identify the treatment plan in dispute and specify that the respondent is not approving the recommended services or physical treatment based on the specific IE report. In each letter, the respondent refers to the specific IE report that it is relying on to deny entitlement to the treatment plan and sets out the findings of the IE assessor. A copy of the IE report relied upon is attached to each denial letter.

32I find that these were clear and unequivocal denials, compliant with s. 38(8) of the Schedule. The correspondence contains straightforward and clear language, sufficient enough to allow an unsophisticated person to make and informed decision to either accept or dispute the decision at issue.

33For the reasons outlined above, I find that the applicant has not demonstrated on a balance of probabilities that the treatment plans in dispute are payable due to non-compliance with s. 38(8) of the Schedule.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are outstanding, the applicant is not entitled to interest.

Award

35The applicant sought an award under s. 10 of Reg. 664. Under s. 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. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

36For 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 plans in dispute;

iii. The respondent is not liable to pay an award;

iv. The applicant is not entitled to interest; and

v. The application is dismissed.