Anderson v. Belair Insurance Company Inc., 2026 CanLII 34297

Citation: Anderson v. Belair Insurance Company Inc., 2025 ONLAT 23-012806/AABS-A

Licence Appeal Tribunal File Number: 23-012806/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:

Christopher Anderson

Applicant

and

Belair Insurance Company Inc.

Respondent

AMENDED DECISION

ADJUDICATOR:

Sarah Guergis

APPEARANCES:

For the Applicant:

Zeitoon Vaezzadeh, Counsel

For the Respondent:

Asal Karimi Nadia Peles, Counsel

HEARD:

In Writing

OVERVIEW

1Christopher Anderson, the Applicant, was involved in an automobile accident on November 25, 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, 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?

ii. Is the Applicant entitled to $2,339.34 for chiropractic services, proposed by Regency Rehabilitation and Wellness Centre in a treatment plan/OCF-18 submitted February 9, 2022, and denied February 23, 2022?

iii. Is the Respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?

iv. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find the Applicant is not removed from the MIG.

4I find the treatment plan is not payable per s.38(8) of the Schedule and I don't need to consider if it is reasonable and necessary given my finding the Applicant is within the MIG.

5I find no interest is owing.

6I find that the respondent is not liable to pay an award.

ANALYSIS

Minor Injury Guideline Designation

7I find that the Applicant's injuries fall within the minor injury guideline ("MIG").

8Section 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."

9An 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), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are 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.

Parties' Positions

10The Applicant submits that they should be removed from the MIG based on chronic pain, a previous accident which makes him more vulnerable to chronic conditions, and the Respondent's estoppel from reliance on MIG limits due to overpayment.

11The Respondent's position is that the Applicant has failed to adduce medical evidence in support of their submissions and that it is well-established at the Tribunal that submissions are not evidence. Further, that the Applicant's injuries fall within the MIG and the treatment plan, award and interest, are not owing.

Chronic pain

Applicant's position

12The Applicant submits that as a result of the subject accident, his injuries affect him functionally in the areas of his home maintenance, recreational basketball and reduction of work hours due to pain and that he that meet at least 3 of the 6 criteria to support a diagnosis of chronic pain under the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition ("Guides").

13While the Guides are not a definitive test to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.

ii. Excessive dependence on health care providers, spouse, or family.

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.

iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs.

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

14I find that there is no official diagnosis of chronic pain, nor was I pointed to enough evidence to establish that the Applicant meets 3/6 criterion which would warrant MIG removal under the Guides.

15The Applicant relies on the General Practitioner report of Dr. Michael Hanna dated July 29, 2021. In this report, Dr. Hanna diagnosed the Applicant with post-traumatic headaches, myofascial sprain/strain of the cervical, thoracic, and lumbar regions, left shoulder sprain/strain, and ruled out partial rotator cuff tear.

16In the summary of his report, Dr. Hanna stated it is his opinion that from a physical perspective, the Applicant sustained no more than sprain/strain type injury. Further, that his presentation was also consistent with posttraumatic headaches. There was no evidence of radiculopathy, myelopathy or neuropathy. His reported limitations with respect to his employment duties are not considered consistent with my physical examination. Based on all the provided information, including the concurrent assessment reports, he stated that his opinion is that the Applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment duties as a result of his accident-related injuries.

17The Applicant further relies on hospital records dated July 14, 2021, which include a note that the Applicant is complaining of right-sided neck pain but is otherwise healthy, that he denied any chest pain shortness of breath and no low back pain.

18The Applicant submits that, based on Dr. Hanna's diagnosis of post-traumatic headaches, and his other ongoing symptoms, he meets at least 3 of the 6 chronic pain criteria under the Guides, which warrants his removal from the MIG.

19The criteria the Applicant claims to meet are: (1) use of prescriptions beyond the recommended duration and dependence on them, (2) secondary physical deconditioning due to disuse, (3) withdrawal from recreational basketball, and (4) failure to restore pre-injury function after the accident such that his physical capacity is insufficient to meet his needs for grocery shopping, laundry, snow removal, grass cutting, and working full hours as a furniture upholster without issue and pain.

20First, to address the Applicant's alleged use of prescriptions beyond the recommended duration and dependence on them. I do not find the Applicant clearly explained what drugs the Applicant are dependant on, or how they are relevant to the alleged injuries. In fact, the name of the drug is not even mentioned in the Applicant's written submissions. The Applicant did not clearly direct me to the evidence which would establish this. Nor did they connect this point clearly to the Guides. Clinical notes and records ("CNRs") from Dr. Sudhir Amba dated October 3 and 14, 2022, are provided, but not explained. In fact, these CNRs include evidence that his rage of motion is maintained. Likewise, in the CRNs from Dr. Fong, there is also nothing which sufficiently establishes this criterion under the Guides.

21Second, to address the Applicant's alleged secondary physical deconditioning due to disuse. The Applicant mentions shoulder pain and points to evidence which establishes supraspinatus tendinosis and a partial thickness tear of the left shoulder. However, the Applicant did not sufficiently address or explain how this connects to criterion 3 under the Guides. In the CRNs from Dr. Fong, there is also nothing which sufficiently establishes or connects to this criterion under the guide.

22Third, to address the Applicant's alleged withdrawal from recreational basketball. The Applicant pointed me to the IE report from Dr. Gelman dated January 24, 2023, and the IE report from Dr. Soric dated October 19, 2021. Dr. Gelman wrote that the Applicant has full range of motion with minimal discomfort. Dr. Soric wrote that he no longer requires any facility-based treatments and that he should focus on core strengthening and should wean himself off of the lumbosacral corset. Again, I was not pointed to sufficient evidence to establish that the Applicant meets these criteria under the Guides.

23Fourth, to address the Applicant's alleged failure to restoration to pre-injury function after the accident such that his physical capacity is insufficient to meet his needs for grocery shopping, laundry, snow removal, grass cutting and working full hours as a furniture upholster without any issue or pain. I find that there is evidence provided to establish this. However, it is not strong enough evidence to persuade me that sufficient criterion under the Guides are met.

Respondent's position

24The Respondent submits that Dr. Hanna's diagnosis of post-traumatic headaches do not bring the Applicant's claim outside of the MIG because it is a sequalae to a minor injury.

25The Respondent notes that the Applicant is asserting he has a non-minor injury based on the post-traumatic headache diagnosis by Dr. Hanna and relies on this Tribunal's decision in 17-007714 v Unifund Assurance Company, 2018 CanLII 141012 (ON LAT), in support of his argument. The Respondent submits in its written submissions that the Applicant's assertion is incorrect, because this is not what the decision says. It submits that in 17-007714 the Tribunal concluded that concussions and post-concussion syndrome or trauma to the head fall outside the MIG because the definition does not include those diagnoses. As a result, symptoms, or issues (such as chronic post-traumatic headaches) arising from those non-minor injuries cannot be characterized as sequalae to minor injuries.

26The Respondent further notes that the CNRs from the hospital ER do not indicate any diagnosis relating to concussion, post-concussion syndrome or head trauma.

27The Respondent relies on a report from Dr. Rajka Soric, Physiatrist, who assessed the Applicant on October 19, 2021. This report concludes that the Applicant sustained contusions to his right knee and maybe to the lower leg at the time of the collision, but these injuries have resolved. He sustained moderate soft tissue injuries to the cervical and lumbosacral area. Dr. Soric believes that his left shoulder symptoms are a reflection of neck pain as he pointed mostly to the left upper trapezius muscle that was hurting him in the past. At the present time, he continues to have primarily lower back pain and neck pain. He has resumed his regular duties but works fewer hours. Dr. Soric concluded that the Applicant no longer requires any facility-based treatments, and that the Applicant should focus on core strengthening and should wean himself off the lumbosacral corset.

28The Respondent further relies on a report from Dr. Greg Gelman, BSc, MD, CCFP, FCFP, dated January 24, 2023. Dr. Gelman noted that the Applicant reported that his neck and back symptoms have completely resolved, he did report ongoing left shoulder complaints, and he had full range of motion throughout. There was minimal discomfort noted.

29The Applicant submits that Dr. Gelman failed to review the records most contemporaneous with the accident confirming a report of left shoulder pain and failed to comment on how the mechanism of the T-bone accident predominantly to the driver's left side, and direct impact to the left shoulder, would not result in the injuries and symptoms reported. Further, that Dr. Gelman fails to consider and address the posttraumatic disc herniation differential diagnosis by a radiologist, and diagnosis of post-traumatic headaches by Dr. Hannah.

30The Respondent further submits that there is no medical evidence of overdependence on prescription medication and/or use beyond the recommended duration, or secondary physical deconditioning.

31I acknowledge that the Applicant submitted that he experienced various injuries and challenges which meet at least 3 of 6 the criteria in the Guides. However, I agree with the Respondent that the Applicant has not furnished sufficient evidence to meet at least 3 of the 6 chronic pain criteria under the Guides or to establish the Applicant's removal from the MIG based on chronic pain or other injuries. I find the Respondent provided evidence which establishes the Applicant's ability to recover within the MIG.

32Therefore, on a balance of probabilities, I find the Applicant is not removed from the MIG for these reasons.

Pre-existing injury

33The Applicant's MIG removal based on a pre-existing injury is established in s.18(2) of the Schedule. It states that the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the MIG.

34I find that the Applicant has not established that he has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent him from achieving maximal recovery within the MIG.

35The Applicant submits that although he was involved in a motor vehicle collision in December 2019 without any ongoing injuries, this previous accident made him "vulnerable and susceptible to injuries arising from the subject accident."

36The Respondent submits in its written submissions that there is no medical evidence cited by the Applicant opining he was more vulnerable to chronic injuries as a result of a previous motor vehicle accident. Further, that despite the requirement to show a "pre-existing medical condition that was documented by a heath practitioner prior to the accident", the Applicant has not adduced any medical evidence that he had a pre-existing condition prior to the accident.

37The Respondent further submits that the Applicant reported during the section 44 examinations that he did not have any pre-accident conditions, therefore the Applicant does not have any documented pre-existing medical condition that precludes medical recovery within the MIG.

38Dr. Soric wrote that he did not find compelling evidence of any pre-existing medical conditions that would delay recovery if subject to the $3,500.00 limit or limited to the goods and services authorized under the MIG.

39I find that there was not sufficient medical evidence to establish that the Applicant had a pre-existing medical condition that was documented by a health practitioner before the accident that would prevent him from achieving maximal recovery within the MIG. The only evidence provided prior to the date of loss was a prescription from Shopper's Drug Mart for Mylan Naprox Esomepraz MR which was not mentioned in the Applicant's written submissions. The Applicant did not sufficiently outline how this is significant or relevant to establishing his removal from the MIG.

40Therefore, the Applicant is not removed from the MIG for this reason.

Respondent's reliance on MIG limits due to payment over $3500.00

41The Applicant argues that the Respondent is estopped from relying on the MIG limits to deny disputed treatment plans because the Respondent paid benefits in excess of the MIG limit.

42I find that the Respondent is not estopped from its reliance on the MIG limits due to overpayment which was an administrative error.

43The Applicant submits that the Respondent is estopped from relying upon the MIG limits because when reading the Schedule as a whole and in conjunction with s. 18(1), a MIG position can only be maintained where the sum of benefits payable "shall not exceed" $3,500.00. The Applicant submits that the legislature avoids superfluous or meaningless words and that every word in a statue has a specific role in advancing the legislative purpose. The terminology of "shall not exceed" is mandatory in its directive.

44The Applicant argues that the Respondent has paid $3,563.78 in benefits and that these payments undermine the MIG position that the Applicant's injuries could be successfully treated within the $3,500.00.

45The Applicant relies on R.A. v Wawanesa Mutual Insurance Company, 2020 CanLII 27433 (ON LAT) ("R.A."), where the Tribunal found the Applicant's injuries fell outside of the MIG where the Respondent paid benefits beyond the $3,500.00 cap and called their position in light of the excess payment "most alarming." The Applicant argues that the Tribunal has jurisdiction to invoke the equitable remedy of estoppel.

46The Respondent submits that the Applicant misinterpreted R.A., and the Tribunal determined the Applicant's injuries fell outside of the MIG on the basis of chronic pain, not because the Respondent approved treatment in excess of the $3,500.00 MIG limits. Further, that the Tribunal has held that receiving payment of benefits above the MIG limits due to an administrative error does not automatically take an insured person out of the MIG or entitle them to benefits. However, the Respondent did not cite any LAT decisions in support of this position.

47The Respondent argues that the Applicant still must meet their burden of demonstrating the injuries are not minor and cannot be treated within the MIG limits. It submits that it paid $63.78 over the MIG limits in error, and, in good faith, did not request repayment of this nominal amount from the Applicant pursuant to section 52 of the Schedule.

48I agree with the Respondent that an administrative error such as accidental overpayment of $63.78 is not sufficient grounds to warrant the removal of the Applicant from the MIG.

49I also agree with the Respondent that, in R.A. vs. Wawanesa, the Applicant was not removed from the MIG due to overpayment alone, or even as a primary consideration. I do not find that the Applicant has met their onus to clearly establish this point, not have they pointed me to sufficient case law where such an administrative error led to their complete removal from the MIG.

50I do not agree with the Applicant that the words "shall not exceed" operate to remove a claimant from the MIG as a result of minor accidental overpayment.

51Therefore, on a balance of probabilities I find that the Applicant is not removed from the MIG for this reason.

Section 38(8): Treatment plan for chiropractic care submitted February 9, 2022, in the amount of $2,339.34.

52I find that the Respondent complied with s. 38(8) of the Schedule in providing an adequate notice of denial. Therefore, I find the treatment plan is not payable on this basis.

53Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

54The Applicant submits that the Respondent failed to meet their onus to properly notify the Applicant of their denial under s.38(8), because it failed to provide sufficient medical reasons in its denial letter dated February 23, 2022. The Respondent argues that the denial was proper as it was within the 10 calendar days and referred to prior denials and IEs for its medical reasons.

55In its denial letter the Respondent wrote:

"a review of our file indicates that the goods and services recommended by this Treatment and Assessment Plan (OCF-18) are substantially similar to the goods and services that were previously submitted on a Treatment and Assessment Plan (OCF-18) completed by Dahir Hashi HAL Disability Management on September 17, 2021. As you may recall, those goods and services were deemed not reasonable and necessary based on the IE completed by Dr. Rajka Soric, Physiatrist on October 19, 2021. Please accept this correspondence as notice that as Per Section 38(8) of the SABS and based on the findings of the above mentioned Insurer's Examination, we are not in a position to accept the goods and services recommended under the newly submitted Treatment and Assessment Plan (OCF-18)."

56The Respondent submits that it denied the OCF-18 by letter on February 23, 2022, as being not reasonable and necessary based on a previous s.44 assessment completed by Dr. Rajka Soric on October 19, 2021. Further, that their notice of denial was provided within the ten-business day requirement as set out in section 38(8) of the Schedule.

57I find the Respondent was compliant with s.38(8). The notice of denial was provided within the 10 calendar business days and their reasoning refers back to their previous denial and assessment by Dr. Soric.

58Therefore, on a balance of probabilities, I find this treatment plan is not payable pursuant to s.38(8).

Interest

59Pursuant to s. 51 of the Schedule, I find that interest is not payable as there are no outstanding benefits.

Award

60The Applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

61The Applicant relies on the Respondent's failure to approve treatment after the updated medical documentation was provided to support ongoing entitlement.

62The Respondent submits that the Applicant failed to provide particulars for his special award claim within 30 days of receiving the adjuster's log notes as required by the Case Conference Report and Order dated April 22, 2024. Therefore, it submits that the Applicant's claim for special award should be dismissed.

63The Respondent further submits that it has complied with the provisions of the Schedule and no benefit has been unreasonably withheld or delayed. The Respondent argues that it made its decisions reasonably based on the information provided and the s. 44 IEs. The Respondent outlined the reasons to the Applicant and states that it provided detailed explanations for denials where appropriate. Therefore, it submits there has been no unreasonable withholding of benefits.

64I find that there is no evidence provided which would sufficiently furnish the Respondent's liability to pay for an award.

65Therefore, I do not find an award to be payable.

ORDER

66I find the Applicant is not removed from the MIG.

67I find the treatment plan in dispute is not payable.

68I find that no interest is owing.

69I find that the Respondent is not liable to pay an award.