Licence Appeal Tribunal File Number: 24-011228/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:
Giler Lamallari
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Jeton Memeti, Counsel
For the Respondent:
Asal Karimi, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Giler Lamallari, the applicant, was involved in an automobile accident on August 15, 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 preliminary issue to be decided is:
- Is the applicant barred from proceeding to a hearing for substantive issue number 6 below, with regard to a psychological assessment, because the applicant failed to attend an insurer’s examination (“IE”) under s. 44 of the Schedule?
3The substantive issues to be decided in the hearing are:
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 (“MIG”)?
Is the applicant entitled to $3,622.73 for chiropractic services, proposed by Mackenzie Medical in a treatment plan/OCF-18 (“plan”) dated September 7, 2022?
Is the applicant entitled to $1,300.00 for chiropractic services, proposed by Mackenzie Medical in a plan dated November 25, 2022?
Is the applicant entitled to $2,700.70 for an orthopedic assessment, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated May 17, 2023?
Is the applicant entitled to $2,618.05 for a psychological assessment, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated June 20, 2023?
Is the applicant entitled to $16,113.73 for a chronic pain program, proposed by Mississauga Rehab and Sports Injury Clinic in a plan dated July 26, 2023?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
4The respondent has provided evidence that the plan dated May 1, 2023, for the amount of $2,023.03, was approved on August 28, 2025. Therefore, I have removed it from the issues in dispute.
RESULT
5On the preliminary issue, I find that the applicant is not barred from proceeding with the psychological assessment.
6On the substantive issues, I find that:
The applicant’s accident‑related injuries are predominantly minor; thus, the applicant remains subject to the MIG.
Since the applicant is within the MIG, I do not need to assess the reasonableness and necessity of the disputed treatment and assessment plans.
The applicant is not entitled to interest or an award.
PRELIMINARY ISSUE ANALYSIS
7The preliminary issue is whether the applicant is barred from pursuing a claim for a psychological assessment because she failed to attend the insurer’s scheduled examinations for that benefit.
8Section 44(1) of the Schedule provides that an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or have expertise in vocational rehabilitation, for the purpose of assisting the insurer in determining whether an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary.
9Section 55(1)2 of the Schedule precludes an insured person from applying to the Tribunal if the insurer has issued a Schedule‑compliant notice under section 44(5) requiring attendance at an examination under section 44, and the insured person has failed to comply. The duty to attend arises only after a compliant notice is provided. Once that threshold is met, the onus shifts to the insured person to provide a reasonable explanation for non‑attendance at the insurer’s examination. Notwithstanding a failure to comply with section 44, the Tribunal retains discretion under section 55(2) to allow an application to proceed, subject to such terms and conditions as it deems appropriate.
10The chronology is not in dispute. On July 5, 2023, the respondent denied the psychological assessment plan and required the applicant to attend a psychological insurer’s examination. The examination was rescheduled to September 22, 2023, and the applicant again failed to appear. After the second missed appointment, the record shows no contemporaneous communication clarifying the respondent’s position on future insurer examinations.
11More than a year later, on January 17, 2025, the respondent scheduled a further examination for March 7, 2025. The applicant again failed to attend. On March 11, 2025, the respondent advised that it would reschedule the examination only upon receipt of written confirmation of the applicant’s intention to attend and a reasonable explanation for the prior non-attendance. On July 27, 2025, the applicant’s counsel requested that the examination be rescheduled. The respondent refused, citing the imminent hearing and the absence of the requested explanation.
12The applicant asserts that the Tribunal should exercise its discretion under section 55(2). She contends that the respondent permitted extended periods of inactivity after her earlier absences, imposed additional preconditions for rescheduling that were not set out in the Schedule, and ultimately declined to reschedule when she sought to move the matter forward.
13The respondent argues that the applicant’s repeated failure to attend scheduled examinations, without providing a reasonable explanation or confirming future attendance, justifies barring the claim. The respondent also argues that insurers are not obliged to continue scheduling examinations indefinitely when an insured repeatedly fails to attend, particularly given that insurers often incur cancellation fees.
14I find that the applicant’s conduct weighs significantly against her. She failed to attend multiple properly scheduled insurer examinations and did not provide contemporaneous explanations for these failures. Established jurisprudence makes clear that the burden is on the applicant to justify non-attendance. It was not unreasonable for the respondent, after multiple missed appointments, to require written confirmation of attendance and a reasonable explanation before agreeing to reschedule another examination.
15While the respondent was under no obligation to continue rescheduling insurer examinations after the applicant’s repeated non‑attendance, its conduct after the missed September 22, 2023, examination remains relevant to the Tribunal’s exercise of discretion under section 55(2). Although the respondent was entitled to cease further scheduling efforts, the record does not show that it clearly communicated to the applicant that no further examinations would be arranged unless the applicant provided written confirmation of attendance or a reasonable explanation for prior non‑attendance. Instead, the respondent did not communicate a clear position at the time, left the file inactive for an extended period, and, on its own initiative, later scheduled another examination for January 2025. In these circumstances, the evidentiary record does not allow the Tribunal to conclude that, by September 2023, the applicant appreciated the potential procedural consequences of continued non‑attendance, a consideration that informs, but does not determine, the exercise of discretion under section 55(2).
16Repeated non‑attendance at insurer examinations generally justifies an insurer’s decision to suspend further scheduling efforts, and the applicant remains responsible for explaining any failure to attend. Nothing in the Schedule obliges an insurer to continue rescheduling examinations or to accommodate further non‑attendance. That said, section 55(2) confers a residual discretion on the Tribunal to permit an application to proceed where strictly enforcing section 55(1) would be disproportionate in the circumstances. In this case, taking into account the extended procedural history, including periods when no examination was pursued, and the respondent’s subsequent decision to schedule an additional examination despite earlier non‑attendance, I find that permanently barring the application would be disproportionate. This conclusion does not diminish the applicant’s obligation to attend insurer examinations, nor does it alter the ordinary operation of the Schedule. It reflects the limited, fact‑specific exercise of discretion under section 55(2).
17The Tribunal’s discretion under section 55(2) must be exercised in light of the purpose of the Schedule and the specific circumstances of the case. In this matter, the applicant’s non‑attendance is a significant procedural failure; however, it must be assessed in the context of the overall record, including the application’s procedural posture and the largely documentary nature of the evidence before the Tribunal. In these circumstances, refusing to permit the application to proceed would elevate a procedural breach over a final determination of the merits. Allowing the matter to proceed, therefore, is a proportionate exercise of discretion in this case and does not undermine the applicant’s ongoing obligation to attend insurer examinations.
18Accordingly, I exercise my discretion under section 55(2) of the Schedule and determine that the applicant is not barred from pursuing her claim for a psychological assessment.
SUBSTANTIVE ISSUES ANALYSIS
Are the applicant’s injuries predominantly minor?
19I find that the applicant’s accident‑related injuries are predominantly minor under the Schedule.
20Section 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.”
21An 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.
22The applicant seeks removal from the MIG on the basis of chronic pain with functional limitations and psychological impairments.
Chronic Pain with functional limitations
23I find that the applicant has not demonstrated chronic pain with functional impairment sufficient to justify her removal from the MIG.
24The applicant submits that the medical record shows more than typical sprain or strain injuries. She relies primarily on the orthopaedic chronic pain assessment by Dr. Osama Benmoftah, dated July 17, 2023; the Disability Certificate (OCF‑3), dated September 7, 2022; and rehabilitation clinic records documenting ongoing symptoms and limited improvement over time.
25The respondent argues that the applicant has not met her burden. It cites the section 44 assessments by Dr. Charanjit Sandhu (internal medicine, December 30, 2022) and Dr. Ahmad Belfon (physician, September 5, 2023), both of whom found the applicant’s impairments minor. The respondent also highlights the lack of objective findings, such as fractures, neurological injuries, or soft-tissue tears, as well as the absence of immediate hospital visits.
26The OCF‑3, signed by chiropractor Jacob Ceccanese on September 7, 2022, documents cervicalgia, thoracic spine pain, muscle contracture, headaches, dizziness, and giddiness, as well as functional limitations during prolonged standing, sitting, walking, bending, and lifting, with an expected recovery period exceeding 12 weeks. While this document confirms early post‑accident symptoms and functional complaints, it reflects a typical presentation of soft‑tissue injuries often considered within the MIG and, on its own, does not establish chronic pain with lasting functional limitations.
27In his orthopaedic chronic pain assessment dated July 17, 2023, Dr. Benmoftah diagnosed a chronic pain disorder with regional sprains and strains affecting the cervical, thoracic, and lumbar spine, as well as the bilateral shoulders and hips. He also noted sleep disturbances and psychological symptoms to be managed by the applicant’s primary care and mental health providers. His report relied on validated outcome measures, including a Neck Disability Index of 72%, a Roland–Morris score of 21/24, and a Pain Inventory score of 55/70, and concluded that the applicant met more than three of the six chronic pain criteria outlined in the American Medical Association (“AMA”) Guides (6th edition). He described significant interference with activities of daily living, including caregiving, household tasks, and social participation. Although this report is detailed and thorough, it is largely based on self-reported symptoms and questionnaire-based measures obtained nearly eleven months after the accident. Its probative value must be considered within the context of the overall medical record.
28Notably, the applicant did not submit post‑accident clinical notes or records (“CNRs”) from a family physician documenting ongoing pain complaints, pain‑management prescriptions, or referrals to pain specialists. The family physician records from Dr. Sheila Thakkar at Mackenzie Health primarily concern pregnancy‑related care from 2020–2021 and clearly predate the accident. They do not support claims of accident‑related chronic pain or functional decline.
29The only contemporaneous CNRs following the accident are from chiropractic treatment at Mackenzie Medical and Rehabilitation. These records primarily reflect the applicant’s subjective symptom reporting and document routine conservative treatment commonly associated with soft‑tissue injuries addressed within the MIG. They do not contain clinical findings, treatment responses, or other objective indicators suggesting that the applicant’s injuries or recovery trajectory fell outside the type or degree ordinarily managed within the MIG.
30Unlike the applicant’s primarily symptom‑based treatment records and the single chronic pain assessment conducted nearly a year after the accident, the section 44 assessments provide contemporaneous, independent medical evaluations that address both diagnosis and prognosis. In his December 30, 2022, assessment, Dr. Sandhu identified residual myofascial sprains of the cervical and lumbar spine and the shoulders, with associated post‑traumatic headaches, and concluded that these impairments fell within the definition of minor injuries. Similarly, Dr. Belfon’s September 5, 2023, assessment acknowledged ongoing myofascial pain but found no objective evidence of fracture, neurological compromise, or soft‑tissue tear, and determined that the applicant’s condition remained minor, with an expected recovery consistent with the MIG.
31Although the applicant reports persistent pain, the Tribunal has consistently held that ongoing pain alone does not justify removal from the MIG. The evidence must demonstrate a level of functional disability that significantly exceeds the typical recovery from minor injuries. On this record, that standard has not been met.
32I assign limited weight to Dr. Benmoftah’s July 17, 2023, assessment because it is a single medico‑legal evaluation conducted well after the accident and relies heavily on self‑reported symptoms and questionnaire results, without corroboration from ongoing physician‑directed treatment or objective clinical findings over time. Although the assessment identifies functional limitations, it does not reconcile those findings with earlier medical evidence indicating a minor injury, nor does it explain the absence of sustained medical management for chronic pain.
33By contrast, I prefer the opinions of Dr. Sandhu and Dr. Belfon because they are consistent with one another, aligned with the contemporaneous treatment record, and supported by objective clinical assessments conducted at different stages of recovery. Both assessors acknowledged the applicant’s reported pain and considered functional complaints, yet concluded, based on physical examination findings and the absence of structural or neurological injury, that the impairments remained minor. Their opinions are further supported by the lack of sustained physician‑led treatment, pain management intervention, or clinical escalation typically associated with chronic pain resulting in significant functional impairment.
34Therefore, I find that the applicant has not demonstrated chronic pain with functional impairment sufficient to warrant removal from the MIG.
Psychological impairments
35I also find that the applicant has not demonstrated accident-related psychological impairments that would justify removal from the MIG.
36In support of this position, the applicant relies on a psychological pre‑screen interview conducted on June 21, 2023, by Dr. Betty Kershner, and on a proposed psychological assessment (OCF‑18) dated June 2023.
37The respondent submits that the section 44 assessments by Dr. Sandhu and Dr. Belfon support a finding that the applicant’s impairments remain predominantly minor, and that the psychological material relied on by the applicant does not establish a compensable psychological impairment arising from the accident.
38The psychological pre‑screen documents the applicant’s self‑reported symptoms, including disturbed sleep, nightmares, headaches, fatigue, anxiety, and fear of driving or riding as a passenger. These complaints are described in the context of ongoing physical pain and emotional distress following the accident, and the report notes the applicant’s interest in psychological support.
39The applicant’s psychological evidence is limited to a pre‑screen interview and a proposed assessment. There is no completed psychological or psychiatric assessment, no formal accident‑related psychological diagnosis, and no evidence of ongoing clinician‑directed mental health treatment. The record also lacks corroborating post‑accident clinical notes from a family physician, psychologist, psychiatrist, or other mental health professional documenting referrals, prescribed medication, treatment plans, or functional impairment attributable to a psychological condition arising from the accident.
40This finding should not be read as characterizing psychological impairments as minor injuries. Rather, it reflects the applicant’s failure to establish, on the evidence, the existence of a diagnosable accident‑related psychological impairment. In the absence of a completed assessment or longitudinal mental‑health treatment establishing an independent accident‑related psychological condition with associated functional impairment, the Tribunal is unable to conclude that the applicant has proven a psychological impairment that would remove her from the MIG.
41Accordingly, I am not satisfied, on a balance of probabilities, that the applicant has established accident‑related psychological impairments sufficient to warrant removal from the MIG.
MIG Conclusion
42Considering the evidence as a whole, particularly the applicant’s failure to provide longitudinal physician‑led treatment records, completed psychological assessments, or other medical evidence demonstrating impairments outside the MIG, I find that the applicant has not met her burden of establishing entitlement to removal from the MIG.
43As a result, on a balance of probabilities, the applicant remains subject to the Minor Injury Guideline, and the $3,500.00 limit applies.
Is the applicant entitled to the disputed treatment and assessment plans?
44Since I have determined that the applicant remains within the MIG, it is not necessary to assess the reasonableness and necessity of the disputed treatment and assessment plans.
Interest
45Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. Since I have determined that the applicant is not entitled to any benefits, interest is not payable.
Award
46The 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.
47In light of my findings and the information reasonably available to the respondent at the time of the denials, I am not satisfied that the respondent’s conduct meets the high threshold required for an award. The respondent obtained section 44 assessments, relied on them to maintain its position on MIG applicability, and handled the claim in a manner consistent with the medical evidence and the requirements of the Schedule.
48Accordingly, the applicant is not entitled to an award.
ORDER
49On the preliminary issue, I find that the applicant is not barred from proceeding with the treatment plan for a psychological assessment.
50On the substantive issues, I find that:
i. The applicant’s accident‑related injuries are predominantly minor; thus, the applicant remains subject to the MIG.
ii. Since the applicant is within the MIG, I do not need to assess the reasonableness and necessity of the disputed treatment and assessment plans.
iii. The applicant is not entitled to interest or an award.
iv. The application is dismissed.
Released: April 17, 2026
Harouna Saley Sidibé
Adjudicator