Citation: Laing v. Belair Insurance Company Inc., 2026 ONLAT 24-014523/AABS

Licence Appeal Tribunal File Number: 24-014523/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:

Sasha Laing

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Bianca Pirrotta Iaccino, Paralegal

For the Respondent:

Ryan Jeffries, Paralegal

HEARD:

By way of written submissions

OVERVIEW

1Sasha Laing, the applicant, was involved in an automobile accident on July 29, 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 $2,350.00 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre in a treatment plan, submitted on May 5, 2023?

iii. Is the applicant entitled to the treatment proposed by Humber Civic Care Centre, as follows:

a. $3,024.62 for chiropractic services, in a treatment plan submitted on December 13, 2022;

b. $2,949.76 for chiropractic services, in a treatment plan submitted on May 4, 2023;

c. $2,613.09 for physiotherapy services, in a treatment plan submitted on August 17, 2023; and

d. $3,286.43 for chiropractic services, in a treatment plan submitted on November 14, 2023?

iv. 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 as defined by the Schedule and she 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 plans in dispute or interest.

ANALYSIS

Minor Injury Guideline (“MIG”)

5I find that the applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG.

6Section 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.”

7An 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.

8In this matter, the applicant submits her pre-existing chronic pain, anxiety and depression warrant a removal from the MIG. She further submits that she should be removed from the MIG on the basis that her injuries remain chronic in nature.

a. The applicant is not removed from the MIG on the basis of a pre-existing condition

9I do not find that the applicant has a pre-existing medical condition that prevents maximal medical recovery if she is kept within the MIG.

10A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

11The applicant submits that she was involved in a previous motor vehicle accident on March 25, 2021 (the “2021 accident”), in which she sustained both psychological and physical injuries that had not resolved at the time of the subject accident. She argues that her significant pre-existing chronic pain, anxiety and depression warrant removal from the MIG. She further argues that her pre-existing injuries were aggravated in the subject accident and the Disability Certificate submitted on August 8, 2022, sets out her accident-related impairments. She relies upon the pre-accident Clinical Notes and Records (“CNRs”) of her family physician, Dr. Shari Chung, which note her pre-existing injuries; the Chronic Pain Assessment report of Dr. Michael Gofeld, dated June 23, 2022 which diagnoses her with chronic pain, an adjustment disorder with mixed anxiety and depressed mood, and specific phobia (driving and passenger related); the CNRs from Humber Civic Care Centre where she attended for treatment both before and after the subject accident; and the CNRs of Dr. Konstantinos Papazoglou, psychologist, who she saw for psychological treatment.

12The applicant also relies upon the Insurer’s Examination (“IE”) Physician Assessment report of Dr. Ahmad Belfon, dated February 24, 2023, where Dr. Belfon states, “there was likely an exacerbation of her pre-existing neck and lower back pain”.

13The respondent acknowledges that the applicant suffered pre-accident chronic pain and psychological impairments as a result of her 2021 accident. However, the respondent submits that the applicant has not made any submissions on the most important part of the MIG removal test for pre-existing impairments. Specifically, the applicant has not proven, on a balance of probabilities, that her pre-existing medical condition will prevent her from achieving maximum medical recovery if she is subject to the $3,500.00 limit or is limited to the goods and services authorized under the MIG. The respondent further submits that none of the specialists or treatment providers seen by the applicant following the subject accident have opined that the applicant requires treatment outside of the MIG in order to reach maximum medical recovery as a result of the subject accident. In addition, the applicant has not reported any exacerbation of her pre-existing condition to any of her treating practitioners or specialists post accident.

14The respondent submits that the applicant’s current impairments are solely related to the 2021 accident. The respondent submits that after the subject accident, the applicant’s first visit to her family physician was three months later on October 31, 2022, and there was no mention of the subject accident. At her appointment on November 10, 2022, she also did not mention the subject accident. There is then a gap in Dr. Chung’s records of nearly two years, from November 10, 2022 to March 25, 2024. She attended Dr. Chung’s office on three occasions in April 2024, and there were no mention of the subject accident or any related impairments. The respondent further submits that the applicant continued to see specialists and treatment providers after the subject accident, but all of these appointments relate to the 2021 accident. In the CNRs of Dr. Papazoglou, while the applicant attended for 30 psychological sessions after the subject accident, there was only one mention of the subject accident in her August 9, 2022 session. The respondent argues that there was nothing preventing the applicant from discussing the subject accident and its effects, if any, on her recovery, with her medical practitioners. It therefore argues that it must be inferred that the applicant either deliberately chose not to disclose this, that the subject accident had little to no impact on her medical condition and/or that the doctors felt the accident did not play a role in her current condition.

15The respondent submits that Dr. Belfon’s IE report, dated February 24, 2023, clearly opines that the applicant’s residual symptomatology that she was experiencing at the time was ‘largely attributable to her pre-existing injuries and ongoing symptom exacerbation from her work as an aesthetician’. He further opined that maximum medical improvement can be achieved within the MIG. Dr. Belfon’s IE reports dated June 16, 2023 and January 25, 2024, confirmed his opinion that the applicant’s injuries from the subject accident were minor, and that the applicant could reach maximum medical recovery within the confines of the MIG.

16I find that the applicant has not proven that she is removed from the MIG because of a pre-existing condition for the following reasons.

17Although I accept the applicant’s evidence that she suffered physical and psychological injuries in the 2021 accident, I find that she has not provided compelling medical evidence from a treating practitioner that states that these pre-existing medical conditions would prevent her from achieving maximum medical recovery within the MIG, as required by s. 18(2). I find that simply having a pre-existing condition is insufficient to demonstrate that she should be removed from the MIG.

18I find that the medical evidence provided by the applicant in terms of the injuries that she sustained in the subject accident is limited and does not suggest that she would be unable to reach maximal recovery within the MIG. The applicant has not provided compelling evidence that the injuries she suffered in the subject accident are not predominantly minor injuries or that they are not sequalae from the injuries sustained in the 2021 accident.

19I find upon review of the CNRs from Dr. Chung, that there is no mention of the applicant’s involvement in the subject accident. I further find that within the post-accident records of Dr. Chung, there are no accident-related physical or psychological complaints made with respect to the 2021 accident or the subject accident.

20I find upon review of the Disability Certificate, prepared by Dr. Dario Mirian, chiropractor, at Humber Civic Care Centre Inc., dated August 8, 2022, it notes the applicant’s, “history of mva 2021 injured neck, upper back and low back”. It states that anticipated disability is 9-12 weeks. At part 4 of the Treatment Plan prepared by Dr. Mirian, dated December 12, 2022, it notes that the applicant’s impairments are not predominantly a minor injury as referred to in the MIG applicable to the accident. However, at Part 7, when asked if the applicant has any disease, condition or injury that could affect her response to treatment for her injuries, “unknown” is checked off. The Treatment Plans prepared by Dr. Mirian dated May 1, 2023, August 17, 2023, and November 13, 2023, at Part 7 do list a “history of mva 2021 injured neck, upper back and low back.” I find that while Dr. Mirian notes the applicant’s involvement in the 2021 accident, he does not provide any particulars, nor does he address how the applicant’s injuries were exacerbated by the subject accident or that it would prevent her from achieving maximal medical recovery if the applicant is kept within the MIG. Upon review of the actual CNRs provided post-accident from Dr. Mirian, the applicant has not pointed the Tribunal to any notes which discuss the impact of the subject accident on her pre-existing conditions. The applicant was attending for regular treatment at the time of the accident and the records support that she continued with similar or the same treatment following the subject accident.

21With respect to the CNRs of Dr. Papazoglou, I find that the applicant was attending for psychological treatment at the time of the subject accident. In the CNR immediately after the accident on August 2, 2022, there is no mention of her involvement in the subject accident. It is only in the next session on August 9, 2022, that the applicant notes that she has been involved in another accident and felt more terrified and stressed. Dr. Papazoglou does not provide any comments on the effects of the subject accident, and it is not mentioned again in the subsequent records which focus on her issues stemming from the 2021 accident. Again, there is no indication as to what extent the applicant’s pre-accident psychological condition was exacerbated by the accident or that it would prevent her from achieving maximum medical recovery if she is kept within the MIG.

22I find upon review of the IE reports of Dr. Belfon, that he notes that there was likely an exacerbation of her pre-existing neck and low back pain however, the musculoskeletal injuries sustained in the subject accident are classified as minor injuries and maximal medical improvement can be achieved within the confines of the MIG. Contrary to the applicant’s submissions, I find that the reports of Dr. Belfon do not support the applicant’s position. Further, I find the applicant has provided insufficient evidence to refute Dr. Belfon’s opinion that she suffered minor injuries in the subject accident and that maximum medical improvement can be achieved within the confines of the MIG.

23Although I acknowledge that the applicant had significant pre-existing impairments as a result of the 2021 accident, what I find lacking is compelling medical evidence from a treating practitioner supporting that these impairments would prevent recovery if she is treated within the MIG. The test that must be met for MIG removal as per s. 18(2) of the Schedule.

24For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she suffers from a pre-existing medical condition that would prevent maximal medical recovery if she is subjected to the MIG and therefore she is not removed from the MIG on this basis.

b. The applicant is not removed from the MIG based on a chronic pain condition

25I do not find that the applicant suffers from a chronic pain condition as a result of the accident that would warrant removal from the MIG.

26Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being.

27The applicant submits that she should be removed from the MIG on the basis that her injuries remain chronic in nature. She relies upon the Tribunal decision in 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT), where the adjudicator found that when chronic pain causes functional impairment and disability, it removes one from the MIG limits. More specifically, the adjudicator states “ongoing pain alone is insufficient to take one out of the MIG. Rather, that ongoing pain also must be accompanied by some functional impairment.”

28The applicant relies upon the IE reports of Dr. Belfon which indicate a diagnosis of sprain and strain of the cervical spine (WAD I) and lumbar spine. She submits that while the diagnosis on its own does not equate to chronic pain, her pre-existing medical history together with the time lapsed since the accident, demonstrates the chronicity of her injuries.

29The applicant submits that she suffers the following functional impairments related to the accident which were reported to Dr. Belfon and noted in his report dated February 24, 2023:

i. Slower to complete services for clients, as standing aggravates her ongoing pain

ii. Completing cooking and housekeeping tasks for her children out of necessity, but accompanied by significant pain.

30The respondent submits that the applicant does not suffer chronic pain as a result of the subject accident and that any impairments the applicant may continue to experience, are solely related to the 2021 accident based on the evidence provided.

31The respondent disagrees with the applicant’s submission that the existence of chronic pain prior to the subject accident ought to remove her from the MIG. The respondent argues that the applicant has not proven, on a balance of probabilities that her pre-existing chronic pain has impacted her ability to recover from the minor injuries sustained in the subject accident, if confined to the MIG. The respondent further submits that the evidence provided actually shows that the applicant was doing better after the subject accident with respect to her pain levels and function in her activities of daily living. The respondent submits that the applicant’s accident-related impairments were at best a temporary exacerbation of her pre-existing impairments for which she has since recovered.

32I find that the applicant has not met her evidentiary onus to prove, on a balance of probabilities, that she suffers from chronic pain as a result of the subject accident.

33As noted above, I find upon review of Dr. Chung’s CNRs, that there is no mention of the subject accident in the records provided. In addition, I find that the applicant was regularly attending for treatment at Humber Civic Care Centre Inc and for psychological sessions with Papazoglou at the time of the subject accident in respect to her impairments from the 2021 accident. She continued to attend for both types of treatment following the subject accident. I find that there is no indication that the treatment regimes changed following the subject accident as a result of any additional impairment.

34I find the reports of Dr. Belfon persuasive, where he found that the applicant suffered minor injuries in the subject accident. He opined that the applicant’s residual symptomatology she was experiencing at the time of his assessment was ‘largely attributable to her pre-existing injuries and ongoing symptom exacerbation from her work as an aesthetician’. This is consistent with the medical evidence that focuses on the injuries sustained by the applicant in her 2021 accident with minimal reference to the injuries sustained in the subject accident.

35In terms of functional limitations, I note that the applicant has only directed me to the self-reported limitations that she made to Dr. Belfon in his IE report dated February 24, 2023. I find that the applicant has not directed the Tribunal to any further evidence to support that she suffered functional limitations as a result of the subject accident. I therefore do not find that the applicant has proven on a balance of probabilities that her ongoing pain as a result of the injuries sustained in the subject accident were of a significant level or was accompanied by some functional impairment or disability.

36For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she suffers from a chronic pain condition as a result of the subject accident and therefore she is not removed from the MIG on this basis.

Entitlement to the Treatment Plans in Dispute

37The parties indicated in the Case Conference Report and Order that the MIG limits have not been exhausted and $2,979.76 has been paid to the date of the case conference. No submissions have been made by the parties with respect to the remaining MIG limits.

38Since I have determined that the applicant’s impairments fall within the MIG, she is not entitled to the treatment plans in dispute because they seek treatment outside of the MIG. It is therefore unnecessary for me to address whether the treatment plans in dispute are reasonable and necessary.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.

ORDER

40For the reasons outlined above, I find:

i. The applicant’s accident-related injuries are predominantly minor as defined in the Schedule and she 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 or interest;

iii. The application is dismissed.