Citation: Lee v. Belair Insurance Company Inc., 2026 ONLAT 24-010458/AABS

Licence Appeal Tribunal File Number: 24-010458/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:

Carmencita Lee

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Aric Bhargava

APPEARANCES:

For the Applicant:

Joshua Gautreau, Counsel

For the Respondent:

Jennifer Macko, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Carmencita Lee, the applicant, was involved in an automobile accident on May 26, 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 section 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? The parties agree the MIG limits have not been exhausted.

ii. Is the applicant entitled to $2,460.00 to a chronic pain assessment proposed by HydroHealth Evaluations Inc. submitted in a treatment plan/OCF-18 (“plan”) dated April 9, 2024?

iii. Is the applicant entitled to $2,460.00 for a neurological assessment proposed by HydroHealth Evaluations Inc. in a plan submitted April 9, 2023?

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

v. Is the respondent liable to pay costs?

vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

3In her reply submissions, the applicant requested that the issue of costs and an award be added.

4According to the provisions of Rule 19.2 of the Licence Appeal Tribunal Rules, 2023, (“Rules”), a party may make a request for costs in writing or orally at a case conference or hearing, at any time before the decisions or order is released if it believes that the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

5As the applicant requested costs as a part of its written hearing reply submissions and prior to the decision in this matter, I find the applicant has requested costs in accordance with Rule 19.2 and, therefore, the issue of costs is added as an issue in dispute to this hearing. It is the burden of the party that raises a request for costs to support allegations of whether the other party acted unreasonably, frivolously, vexatiously, or in bad faith.

RESULT

6The applicant’s injuries are predominantly minor, therefore the MIG limit applies.

7The applicant is bound by the MIG, it is not necessary to consider whether the treatment plans in dispute are reasonable and necessary.

8As there are no overdue benefits, the applicant is not entitled to interest.

9The respondent is not liable to pay a special award or costs.

PROCEDURAL ISSUES

Applicant’s evidence in reply

10A reply is limited to responding to matters raised in the responding submissions and a party may not advance new issues or evidence in reply submissions.

11The applicant raises the issue of persistent pain and ongoing headaches as a result of the accident, and that she did not have any pre-existing injuries or medical conditions in paragraph [24] of her initial submissions. The question before me is whether pages 197 – 287 in the applicant’s reply merely answer the respondent’s submissions or impermissibly raise new material.

12In its sur-reply the respondent submits the applicant submitted new evidence, specifically medical records from Lifemark Meadowvale Town Centre (“Lifemark”) at pages 197 – 287, in her reply submissions. The respondent argues that this evidence should be excluded because the records were not previously mentioned, do not rebut new evidence from the respondent, and the applicant provided no explanation for why this evidence from 2021 was raised for the first time in her reply submissions.

13The respondent relies on Spence v. Aviva General Insurance, 2023 CanLII 84381 (ON LAT), in which the Tribunal confirmed that a reply is not an opportunity to bolster an initial case or introduce new evidence. The respondent argues that the applicant could have raised the medical evidence in her initial submissions.

14The respondent also had the opportunity in its sur-reply to explain the prejudice caused to it, other than the evidence was reasonably available at the time of submissions.

15I accept the general principle that reply submissions are not an opportunity to reframe a party’s case or to introduce new evidence that should have been presented in the initial submissions. Fairness in written hearings requires that each party know the case to be met.

16I agree with the respondent that it is new evidence because it was not included in the initial submission. However, in my view, the applicant’s reliance on these records in paragraph [8] of her reply is responsive to the respondent’s position in paragraph [24] of its submissions and the applicant does not advance a new argument, but an extension of an argument that was made in the applicant’s initial submission. Accordingly, the evidence falls within the scope of reply.

17The respondent’s request to strike the applicant’s evidence in her reply submissions is denied.

Respondent’s sur-reply

18The respondent requests the filing of a sur-reply to address three issues raised in the applicant’s reply submission: i) the applicant’s request for a special award, ii) the applicant’s request for costs, and iii) the applicant’s evidence in her reply submissions.

19I will consider the respondent’s sur-reply because procedural fairness dictates that the respondent be provided the opportunity to make submissions in response to the applicant’s evidence in her reply submissions, and the applicant’s request for costs and a special award. Therefore, I will consider the respondent’s sur-reply.

Request for special award

20In her reply submission the applicant requests a special award.

21Accordingly, I will grant the applicant’s request to add a special award to the disputed issues, and this is addressed below.

Costs

22I find the applicant’s request for costs is in accordance with the Rules, as discussed above.

ANALYSIS

Application of the Minor Injury Guideline

23I find the applicant has not established that her injuries fall outside of the MIG.

24Section 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.”

25The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.

26The applicant submits that her accident-related injuries are not minor and include ongoing psychological disorders creating barriers to her recovery, chronic pain and radiculopathy. The applicant submits her accident-related injuries as strain/sprain lumbar spine, WAD II, headache, and injury of muscles and tendon at forearm level with constant pain in lumbar and neck, muscle tension, and headaches.

27The applicant submits that she did not have pre-existing injuries or medical conditions, and she suffered an accident-related concussion. However, the applicant did not present her concussion as an argument for removal from the MIG.

28The respondent submits the applicant has not produced compelling evidence that her injuries fall outside of the MIG and that her injuries are minor and fully treatable within the MIG limit.

Does the applicant have chronic pain with functional impairment?

29I find the applicant has not demonstrated that she suffers from a chronic pain condition with a functional impairment that would warrant removal from the MIG.

30The applicant submits that she should be removed from the MIG because she suffers from chronic pain with ongoing musculoskeletal and functional effects. The applicant submits she has persistent pain in her back, neck, with ongoing headaches.

31The applicant relies on the clinical notes and records (“CNRs”) of Dr. Richard Chen, family physician, the CNRs of Lifemark, the section 25 Chronic Pain Assessment prepared by Dr. Manivannan Selvananthan, physician, dated May 1, 2025, the section 25 Neurology Assessment prepared by Dr. Viachislav Prigozhikh, neurologist, dated July 7, 2025, and Semih v. Aviva Ins. Co., 2022 CanLII 27252 (ON LAT).

32The applicant refers to multiple entries in the CNRs of her family doctor, Dr. Chen from May 29, 2020 to October 16, 2024. Over this period, the family doctor noted accident-related complaints of bilateral lower back pain on May 29, 2020 and four months later on October 07, 2020. Dr. Chen recommended the applicant complete home exercises/stretches and physiotherapy after each visit. Dr. Chen’s letter dated October 10, 2024 notes the applicant continues to experience chronic posterior neck pain and lower back pain and her injuries have reduced her ability to remain active. However, Dr. Chen’s pre-accident CNRs note in 2018 and 2019 note that the applicant was to remain active and develop a healthy active lifestyle. In my view, Dr. Chen’s letter dated October 10, 2024 did not identify a functional limitation as a result of her accident-related pain, and the applicant did not direct me to accident-related complaints of pain between October 7, 2020 and October 2024.

33The section 25 report, dated almost five years after the accident, prepared by Dr. Selvananthan, notes the applicant has functionally resumed all pre-accident household and occupational duties but that she continues to experience occasional neck and back pain. Dr. Selvananthan notes her physical therapy to date has helped reduce her pain, although her pain fluctuates over time. The applicant has resumed and continues to perform her daily activities including household chores. Dr. Selvananthan diagnosed the applicant with chronic pain syndrome, post-traumatic regional myofascial pain, secondary sleep disturbance.

34Later in his section 25 report, Dr. Selvananthan notes the applicant “continues to experience moderate disability affecting her work, household duties, and recreational activities,” however, this is inconsistent with earlier parts of his report as described above.

35I place less weight on Dr. Selvananthan’s report because it is internally inconsistent and inconsistent with the applicant’s reported 70% improvement in the CNRs of Lifemark a year after the accident. The CNRs of Lifemark note the applicant states that her symptoms improved 70% overall since the accident and while I find the ongoing complaints of back pain meets the first part of the test for removing from the MIG due to chronic pain, I am not directed to evidence of a functional impairment or limitation as a result of the ongoing pain.

36In the section 25 neurology report prepared by Dr. Prigozhikh, five years after the accident, the applicant is diagnosed with chronic pain, musculoligamentous injuries of the cervical spine, paresthesia of the right hand, musculoligamentous injuries of the upper thoracic and lumbar spine, closed head injury, post-traumatic chronic daily cervicogenic headache, insomnia, passenger anxiety, and mood disturbance. Dr. Prigozhikh notes the applicant’s injuries prevent her from being able to do household chores and having family/social activities.

37The applicant also relies on the CNRs of Lifemark to support Dr. Prigozhikh’s conclusion regarding her headaches. However, I am not directed to records that support the conclusions in Dr. Prigozhikh’s section 25 report that the applicant has chronic pain with a functional limitation.

38I place less weight on Dr. Prigozhikh’s report because it is not consistent with the CNRs of the family doctor. Further, the applicant did not address why there is such a significant difference in the conclusions reached by each assessor in the respective section 25 reports with only one month between her assessments and the reports. Also, the reports are not corroborated by accident-related symptom reporting to the family doctor.

39In relying on Semih, the applicant argues that consistent pain over a long period, and pain that continues to affect the claimant’s activities of daily living warrants removing the applicant from the MIG. However, I am not bound by other decisions of the Tribunal, and I find that Semih is distinguishable from this case because the applicant herself reported to her physiotherapist(s) at Lifemark and various assessors that she has returned to work and the greater majority of her activities and pre-accident routines.

40The respondent submits the applicant’s headaches are a result of her massage therapy treatment and relies on Dr. Andre Douen’s, neurologist, notes of March 2021. Dr. Douen also notes that the applicant’s ongoing headaches are likely contributed to by her short stature and sleeping on eight inches of pillows each night and that this is a likely trigger for her neck strain and recurrent muscle contraction headaches, not her accident-related injuries.

41The respondent relies on the section 44 independent medical examination report prepared by Dr. Rajdeep Bains, physician, dated June 27, 2024. In the report, over four years after the accident, Dr. Bains concludes the applicant sustained sprain/strain injury of the cervical and lumbar spine, she is independent with her personal care tasks, she performs all of her pre-accident household chores, and she continues with her employment at full hours and duties. In my view, if the applicant is able to resume her pre-accident household chores and, personal care, contrasted with her not having directed me to evidence that her employment duties and hours have been modified or impacted, then it is more probable that she has not suffered a functional limitation.

42The applicant argues the respondent is not considering reports other than Dr. Bains’ section 44 report, and that Dr. Bains’ report did not consider a proper chronic pain analysis. The applicant argues the respondent should also consider the applicant’s medical history; however, I am not directed to additional records. The CNRs of the family doctor do not note the applicant has been diagnosed with chronic pain, and the applicant was not referred to any specialist for her accident-related pain. I am not directed to any notes of a functional impairment outside of the family doctor’s letter dated October 10, 2024 that was based on the applicant’s self-reporting and addressed above. Additionally, the CNRs of Lifemark note the applicant demonstrated a 70% improvement in her pain and functioning. For the reasons noted above, I find the medical evidence relied upon by the applicant does not support her position that she should be removed from the MIG due to chronic pain with a functional impairment.

43Accordingly, while I find there is evidence of accident-related ongoing pain, the applicant has not established she has a functional impairment. I find the applicant has not met her evidentiary onus to prove that she suffers from chronic pain with a functional impairment that warrants removal from the MIG.

Does the applicant have a psychological impairment?

44I find the applicant has not met her burden to prove that she suffers from a psychological impairment that warrants removal from the MIG.

45To establish accident-related psychological impairments, the applicant relies on the OCF-18 dated April 9, 2024, prepared by Dr. David Huang, chiropractor, Dr. Selvananthan’s section 25 chronic pain report, and Dr. Prigozhikh’s section 25 neurology assessment.

46The OCF-18 prepared by Dr. Huang notes the applicant’s accident-related psychological impairments includes nervousness, sleep disorder, stress, malaise and fatigue. I place less weight on the OCF-18 because a psychological diagnosis is out of scope for a chiropractor.

47I place less weight on Dr. Selvananthan’s and Dr. Prigozhikh’s section 25 reports because, in my view, it is out of scope for a chronic pain specialist or neurologist to assess the applicant’s psychological injuries. Further, the applicant has not directed me to any corroborating evidence of a psychological impairment or complaints of psychological symptoms noted by the applicant’s primary care physician for the period of October 2020 to October 2024. It is also well established that an OCF-18 alone is not sufficient to establish that an applicant has an accident-related impairment, and even if the applicant reported symptoms to her assessors, she has not directed me to supporting evidence that in the five years post accident that she reported psychological complaints to her primary care physician.

48The respondent’s submissions are silent on the matter of the applicant’s accident-related psychological impairment.

49I find, on a balance of probabilities, that the applicant has not met her burden to establish that she has a psychological impairment as a result of the accident that would warrant removal from the MIG.

50Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.

Is the insurer’s notice compliant with section 38(8) of the Schedule?

51I find the respondent’s notice is compliant with section 38(8).

52In the alternative, the applicant submits that the respondent’s denial notice dated May 28, 2024 for the chronic pain assessment in the amount of $2,460.00 and the denial notice dated May 29, 2024 for the neurological assessment did not comply with section 38(8) of the Schedule. The applicant did not specify in her submissions how the respondent’s denial notice does not comply with section 38(8).

53Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services not to be reasonable and necessary.

54The respondent’s submissions are silent on this matter.

55I have reviewed the respondent’s denial letters dated May 28, 2024 and May 29, 2024. The letters request medical examinations and provide medical reasons for the examinations, they include the details of the treatment plan, whether the applicant falls within or outside of the MIG, details for the denial of the treatment plans, scheduling of the insurer’s examination, instructions on how to reschedule the examination, consequence of non-attendance and clear instructions of how to dispute the insurer’s determination of the claim.

56The applicant has not specified how these denial letters are non-compliant with section 38(8). Further, from my review of the denial letters, I find the respondent has provided compliant section 38 notices. The applicant has not established that the treatment plans are payable pursuant to section 38(11).

Interest

57Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As no benefits are payable, no interest applies.

Award

58The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

59The applicant seeks an award, however, beyond the request for a special award, the applicant did not direct me to evidence in her submissions or reply submissions to establish that the respondent unreasonably withheld or delayed payment of reasonable and necessary benefits, assessments and treatments.

60The respondent submits its behaviour does not lead to a finding where benefits have been unreasonably withheld or delayed, or bad faith adjusting.

61I find an award is not appropriate. As no benefits have been unreasonably withheld or delayed, no award is payable.

Costs

Applicant’s request for costs

62I find that the respondent is not liable to pay costs to the applicant.

63The applicant is seeking $500.00 in costs. The applicant argues the respondent acted in bad faith because the respondent made false allegations suggesting Dr. Chen wrote the letter dated October 10, 2024 for litigation purposes. The applicant did not state what prejudice is caused as a result of the respondent’s actions.

64The respondent’s submission notes at paragraph [19];

In preparation for this litigation, Dr. Chen prepared a letter dated October 10, 2024. He diagnoses the applicant with “chronic posterior neck pain and lower back pain,” but does not consider the criteria of the AMA Guides in coming to this conclusion. As such, the respondent submits that Dr. Chen does not provide a valid chronic pain diagnosis in his letter.

65The respondent submits that Dr. Chen’s letter is in response to a letter from the applicant’s law firm and Dr. Chen is answering specific questions posed to him. The respondent argues it is reasonable to infer that this letter was requested by the applicant’s lawyer for the purposes of litigation.

66The applicant has not established that the high threshold for costs has been met. I have reviewed Dr. Chen’s letter that states, “Thank you for your letter dated August 7th, 2024” and is addressed to the applicant’s law firm. In my view, it is reasonable to characterize the letter in preparation for litigation. However, even if I am wrong, the respondent’s characterization of this letter does not reach the threshold of being unreasonable, frivolous, vexatious, or bad faith behaviour.

67I decline to award costs to the applicant.

ORDER

68For the above reasons, it is ordered that:

i. The applicant’s injuries are predominantly minor; thus, the MIG applies.

ii. Because the applicant is subject to the MIG, it is unnecessary for me to consider whether the treatment plans are reasonable and necessary.

iii. The applicant is not entitled to interest, and the treatment plans are not payable under section 38(8) of the Schedule.

iv. The applicant is not entitled to costs or an award.

69The application is dismissed.