Citation: Boakye v. Belair Insurance Company Inc., 2026 ONLAT 24-014421/AABS - A

Licence Appeal Tribunal File Number: 24-014421/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:

Kwame Boakye

Applicant

and

Belair Insurance Company Inc.

Respondent

AMENDED DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Anna Korolkova, Paralegal

For the Respondent:

Navjot Banipal, Counsel

Sabina Arulampalam, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Kwame Boakye, the applicant, was involved in an automobile accident on April 9, 2021, 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:

1. 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?

2. Is the applicant entitled to the treatment plans/OCF-18s proposed by 101 Physio and 101 Assessments, as follows:

a. $2,171.02, for physiotherapy services, in a plan submitted October 27, 2023,

b. $3,790.70 for psychological services, in a plan submitted June 8, 2023, and

c. $2,460.00 for a psychological assessment, in a plan submitted June 9, 2021.

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

3In his submissions the applicant withdrew disputes of the following plans:

i. $157.19 ($1287.49 less $1,130.30 approved) for physiotherapy services,

ii. $2,204.69 for physiotherapy services,

iii. $2,460.00 for a cognitive assessment,

iv. $2,460.00 for an orthopaedic assessment.

RESULT

4The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

5Since the applicant is subject to the MIG, analysis of whether the treatment plans in dispute are reasonable and necessary is not warranted.

6The applicant is not entitled to interest.

ANALYSIS

MIG

7I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

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.

10The applicant makes arguments addressing three principal positions to support removal from the MIG.

Documented pre-existing injury

11The applicant argues that he has a documented pre-existing injury or condition which precludes recovery if he were kept within the confines of the MIG.

12The respondent argues, and I find, that the applicant has not provided any pre-accident medical records to establish there was a documented pre-existing injury or condition. Further, I find that the applicant has not led compelling medical evidence that such an injury or condition would preclude recovery if he was subject to the MIG.

13Indeed, the applicant refers me to clinical notes and records of Dr. Laham, family physician, dated April 20, 2023, which are post-accident records, and there is no reference to any pre-existing injury or condition. I note that the applicant also refers to a pre-existing phobia diagnosis, but the evidence suggests this is a post-accident diagnosis by Dr. Papazoglou as addressed in the context of a psychological condition later in this decision. I note that the Disability Certificate dated July 23, 2021, states there are no prior and concurrent conditions under Part 8. In addition, as the respondent argues, the applicant has not addressed the requirement to lead compelling medical evidence identifying and stating that a documented pre-existing injury or condition precludes recovery if the applicant is kept within the MIG. Rather, the applicant refers me to Dr. Latham’s CNRs dated May 3, 2021 which state that the assessment is mild whiplash associated disorder and that the applicant can expect to do quite fine with some stretching, heat, massage, and physiotherapy.

14For these reasons, on a balance of probabilities, I find that the applicant has not established that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if he is kept within the confines of the MIG.

Chronic pain with functional impairment

15The applicant’s submissions make a general argument and refer me to the family doctor’s CNRs dated April 20, 2023 to establish complaints of lower back pain.

16The respondent argues that the applicant did not visit his family doctor after the May 3, 2021 visit reviewed above, until July 12, 2022. The respondent refers me to the records of Appletree Medical Group noting the applicant injured his left elbow when he fell striking the back of his elbow on or around July 12, 2022. It is also noted that the applicant denied any other injuries at the time, reported to be in good health, and confirmed he was not taking any medications. In light of this evidence, the applicant has not referred to evidence of either a chronic pain diagnosis or sufficient particulars establishing accident-related pain that developed into chronic pain with a functional impairment.

17I find, on a balance of probabilities, that the applicant has not established that there is corroborating or contemporaneous evidence suggesting the applicant’s pain developed into chronic pain with a functional impairment warranting removal from the MIG.

Psychological condition; Specific (Isolated) Phobia (Driving/Passenger).

18The applicant further submits that he should be removed from the MIG on the grounds of a psychological condition. To establish his claim, he relies on the s. 25 report of Dr. Konstantinos Papazoglou, psychologist, dated October 17, 2021, who diagnosed the applicant with F40.2 Specified (Isolated) Phobia (Driving/Passenger) under the ICD-10.

19The respondent argues that the s.25 psychological report by Dr. Papazoglou should be given no weight because it does not address the MIG. Further, there is a single ICD-10 diagnosis and no DSM diagnosis. It further argues that a s.44 assessment by Dr. Arnold H. Rubenstein, psychologist, opines the applicant does not meet the criteria for any DSM diagnosis and has not been rebutted, that there is no corroborating evidence of a psychological condition arising from the accident, Dr. Papazoglou did not indicate any review of medical records and the assessment is based on self-reporting by the applicant.

20In the context of removal from the MIG, the respondent did not establish a foundation for disregarding a diagnosis on the basis of it being made under the ICD-10, when OCF forms such as the Disability Certificate specifically request ICD-10 codes for accident-related injuries and sequalae.

21I find that the applicant’s position that his self-reported severe anxiety when it comes to driving at night, driving in snow, driving in rain, highway driving, driving in heavy traffic, driving in the location of the accident, driving on pleasure trips, and being the passenger, is not supported by any contemporaneous or corroborating medical evidence. The applicant has not referred to any psychological complaints to the family doctor post-accident and the Disability Certificate does not suggest any psychological injury or sequalae. Dr. Papazoglou’s report does not address whether the applicant’s psychological condition is associated sequalae of a minor injury or outside the definition of a minor injury under the Schedule. I note that the Superintendent’s Guideline No. 01/14, Minor Injury Guideline includes consideration of “supportive interventions such as advice/education to deal with accident-related psycho-social issues, such as but not limited to: distress; difficulties coping with the effects of his/her injury; driving problem/stress.”

22For the reasons above, on a balance of probabilities, I find that the applicant has not established a psychological condition that warrants removal from the MIG. Accordingly, I find that the applicant’s injuries are predominantly a minor injury as defined by the Schedule.

23Since the applicant is subject to the MIG, analysis of whether the treatment plans in dispute are reasonable and necessary is not warranted.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because there are no overdue benefits.

ORDER

25For the reasons above, I make the following orders:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

ii. Since the applicant is subject to the MIG, analysis of whether the treatment plans in dispute are reasonable and necessary is not warranted.

iii. The applicant is not entitled to interest.