Licence Appeal Tribunal File Number: 24-012006/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:
James Whiteman
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
VICE-CHAIR: Brian Norris
APPEARANCES:
For the Applicant: Alex Nikolaev, Counsel
For the Respondent: Nickola Haddad, Counsel
HEARD: By way of written submissions
OVERVIEW
1James Whiteman (“the Applicant”) was involved in an automobile accident on May 5, 2021, and sought benefits from Belair Insurance Inc. (“the Respondent”) 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 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 section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?
ii. Is the Applicant entitled to a medical benefit in the amount of $4,239.55 for a psychological treatment plan by Excel Medical Diagnostics, dated September 6, 2022?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant sustained a minor injury and is subject to the MIG and the $3,500.00 funding limit for a minor injury.
4The Applicant is not entitled to the plan in dispute because it proposes goods and services that fall outside of the MIG.
5No interest is payable.
BACKGROUND
6The Applicant was the driver of a vehicle which struck the rear end of another vehicle while travelling in heavy traffic on a major highway. He sought no medical attention at the scene of the accident but went to the hospital that evening and complained of neck and back pain with numbness to his right arm. He was diagnosed with a muscle strain in his back and advised to use ice and maintain mobility, engage in physiotherapy, and have a gradual return to usual activities.
7The Applicant went to a walk-in clinic and met with a physician, five days later, on May 10, 2021. During that visit he complained of worsening back pain and was referred for x-rays of his back. The x-rays were unremarkable. The Applicant went back to the walk-in clinic and met with a physician again on May 17, 2021. During that visit, he complained of worsening back pain, though the records also note that he was doing heavy work at the same time. No recommendation or diagnosis occurred during this second visit to the walk-in clinic.
8The Applicant was referred for x-rays for his neck, which occurred on August 31, 2021. The x-ray results showed a mild degree of degenerative disc disease, mostly at C4-5 and C5-6, with right sided neural foraminal stenosis, secondary to osteophyte formation. Notably, there was no evidence of acute fracture, and it was noted as “nil acute”, which I interpret to mean that the x-rays showed no recent injury. The Applicant continued to complain of neck and back pain, leading to an MRI on November 26, 2021. The MRI indicated mild broad-based disc osteophyte at C5-C6, associated with mild right neural foraminal stenosis.
9On February 22, 2022, more than nine months after the accident, the Applicant attended at the walk-in clinic and reported that he was suffering from increased anxiety and worries about “everything”. As result, the Applicant was prescribed psychotropic medication. The medication prescribed was the same medication that the Applicant used prior to the accident when he had an episode of anxiety that caused him to attend at the hospital in 2015. He was however, never admitted for in-patient psychological or psychiatric care then, or anytime thereafter.
10Additional to his physical injuries, the Applicant claims that he suffers from accident-related anxiety. To him, his anxiety is an accident-related injury that is not included in the minor injury definition. To the Respondent, the Applicant’s psychological injuries are not caused by the accident, and that the Applicant’s injuries are predominantly a minor injury.
ANALYSIS
11The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
12The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule. Alternatively, he would not be subject to the MIG if he has a documented pre-existing injury which would preclude his recovery from accident-related injuries if subject to the MIG.
13For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.
No pre-existing condition is precluding recovery
14I find that the Applicant has not demonstrated on a balance of probabilities that he suffers from a pre-existing condition which precludes his maximal recovery if subject to the MIG and the $3,500.00 funding limit for a minor injury.
15The Applicant highlights that he was experiencing back and right shoulder pain in the months leading up to the accident, suggesting that he had a pre-existing condition which precludes his maximal recovery if subject to the MIG. He notes that he attended at a walk-in clinic about two months prior to the accident and complained of back and right shoulder pain. About a week prior to the accident, the Applicant reported soreness and discomfort in his back. The Respondent submits that the Applicant’s pre-existing condition does not prevent him from reaching maximal recovery, according to the insurer’s examination (“IE”) report of Dr. P. Bansal, physician, dated September 6, 2022.
16I find that the Applicant’s pre-existing back pain and anxiety does not preclude him from reaching maximal recovery if subject to the MIG. The clinical notes and records (“CNRs”) from the walk-in clinic make no connection between the Applicant’s pre-accident complaints, and the subject accident, or a prolonged recovery. Dr. Bansal, in the September 6, 2022 IE report, opined that the Applicant did not report a concurrent or pre-existing medical condition that would contribute to his current medical status in relation to the accident, and that would prevent him from achieving maximal recovery within the MIG and the $3,500.00 funding limit for a minor injury.
17Having found no compelling evidence of a pre-existing condition that would impact the Applicant’s recovery, it follows that I find that the Applicant has not demonstrated on a balance of probabilities that he is precluded from reaching maximal recovery if subject to the MIG and the $3,500.00 funding limit for a minor injury.
No persuasive evidence of an accident-related psychological impairment
18I find that the Applicant has not met his onus to demonstrate on a balance of probabilities that he sustained an injury that is not captured in the definition of a minor injury.
19The Applicant submits that his anxiety increased following the accident, causing him to use psychotropic medication after a two-year hiatus, and with an increased dosage. He submits that his claim is supported by the report of Dr. S. McDowall, psychologist, dated August 14, 2022, and is critical of the Respondent’s IE report by Dr. R. K. Ratti, psychologist, dated October 21, 2024, because the report by Dr. Ratti does not speak to his psychological state immediately following the accident. The Respondent submits that the Applicant’s psychotherapy records confirm Dr. Ratti’s conclusion that the accident was not the source of the Applicant’s anxiety and it is instead as a result of other life stressors such as work and his dog being sick, not the accident.
20I find that the Applicant has not demonstrated on a balance of probabilities that his psychological symptoms are a result of the accident because there is very little evidence connecting his psychological symptoms to the accident. In the alternative, I find that the Applicant’s accident-related psychological symptoms are minor and do not rise to a level that warrant treatment outside of the MIG.
21I prefer the report of Dr. Ratti over the report of Dr. S, McDowall. I find Dr. McDowall’s report to be an outlier when compared to the balance of the Applicant’s medical records. For example, Dr. McDowall writes that the Applicant has been constantly depressed and feeling down every day since the accident due to his chronic pain and inability to do the things he enjoys on a day-to-day basis. The records however, such as those from the walk-in clinic, do not support this finding as they do not indicate constant depression. In another example. Dr. McDowall suggests that the Applicant experiences persistent insomnia on occasions when he is unable to use cannabis before sleeping, and that his sleep is interrupted due to chronic pain. In contrast, the Applicant participated in a sleep study on January 15, 2023, which lists snoring as the primary cause of his sleep issues, and the subject accident is not mentioned anywhere in the sleep study report, suggesting that the accident is not a cause of his sleep issues.
22I find the report of Dr. Ratti to be most consistent with the Applicant’s medical records. Dr. Ratti acknowledged the Applicant’s reports of anxiety and depression but found they were unrelated to the accident, and more likely related to other personal factors, which the Applicant acknowledged during the assessment. Dr. Ratti’s opinion is consistent with the other records in that it agrees that the Applicant deals with symptoms of depression and anxiety, but they are unrelated to the subject accident and do not result in any functional limitations.
23I find that the CNRs from the walk-in clinic that the Applicant attends do not connect his symptoms to the accident. For example, the entry on February 22, 2022 states that the Applicant worries “about everything”, which is the first mention of psychological symptoms following the accident, but it does not mention the accident. Entries on March 31 and June 2, 2022 report anxiety, but also do not mention the accident. The CNRs confirm that the Applicant restarted psychotropic medication approximately 9 months after the accident yet, there is nothing in the records that cause me to conclude on a balance of probabilities that restarting the medication, or his increased general anxiety is as a result of the accident.
24Similarly, the CNRs from the Applicant’s treating psychotherapists indicate that his psychological symptoms are not as a result of the accident or are minimal and can be addressed through discretionary interventions provided within the MIG. For example, the entry dated November 2, 2022 reports that work is a source of stress as well as his sick dog, which impacted his sleep, but there is no mention of the subject accident. Similarly, entries dated October 26, 2022, November 2, 16, 2022 state that the Applicant faced increased anxiety and stress from work, which is an overarching theme in the psychotherapy records On February 15, 2023, the Applicant reported that the accident isn’t something that is impacting him as much. At most is the November 23, 2022 note that reports anxiety around the accident, but there are no further details about his symptoms. The CNRs also include minimal complaints of vehicular anxiety, but it does not appear to impact the Applicant as he continues to drive regularly for his employment.
25Altogether, the records indicate to me that the Applicant’s psychological symptoms arising from the accident are minimal and do not warrant treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.
No entitlement to the psychological treatment plan
26The Applicant is not entitled to the psychological treatment plan in dispute because it proposes goods and services that fall outside of the MIG and the $3,500.00 funding limit for a minor injury.
Interest
27Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.
CONCLUSION AND ORDER
28The Applicant sustained a minor injury as a result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.
29The Applicant is not entitled to the psychological treatment plan because it proposes goods and services outside of the MIG and the funding limit.
30No interest is payable.
31The Application is dismissed.
Released: April 23, 2026
__________________________
Brian Norris
Vice-Chair