Licence Appeal Tribunal File Number: 24-006307/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:
Nigel Phillip
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Ada Lika, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Nigel Phillip, the applicant, was involved in an automobile accident on January 8, 2023, 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
2Preliminary Issue: The preliminary issue to be decided is:
- Is the applicant barred from proceeding to a hearing for the following benefit: Bio-Psychosocial Assessment, because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?
3Substantive issues: The 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 (“MIG”) limit?
Is the applicant entitled to the assessments/treatment plans/OCF-18s (“plan”) proposed by Toronto Medical Centre, as follows:
i. $1,581.98 for Chiropractic Services, in a plan dated June 19, 2023;
ii. $87.19 ($1,356.35 less $1,269.16 approved) for Chiropractic Services, in a plan dated April 14, 2023; and
iii. $1,748.05 for a Bio-Psychosocial Assessment, in a plan dated March 29, 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?
RESULT
4On the preliminary issue, I find that:
- The applicant is barred from proceeding to a hearing before the Tribunal with respect to the March 29, 2023, bio-psychosocial assessment.
5On the substantive issues, I find that:
The applicant’s injuries are predominantly minor; thus, the MIG monetary limits apply.
Since the applicant is within the MIG, I do not need to assess whether the disputed treatment plans are reasonable and necessary.
The applicant is not entitled to interest or an award.
PRELIMINARY ISSUE ANALYSIS
6The preliminary issue is whether the applicant is barred from proceeding with his dispute regarding the March 29, 2023, treatment and assessment plan for a bio-psychosocial assessment in the amount of $1,748.05, due to his failure to attend insurer examinations (IEs) requested under section 44 of the Schedule.
7For the reasons that follow, I find that the applicant is barred from proceeding with the dispute for the bio-psychosocial assessment because he failed to attend the insurer’s examinations as required under section 44 and has not provided a reasonable explanation or resolved the non-compliance, as outlined in section 55(1)2 of the Schedule.
8Section 37 of the Schedule permits an insurer to request an IE under section 44 to determine an insured person’s entitlement to a benefit. A section 44 IE is an assessment arranged and paid for by the insurer, conducted by a qualified health professional, for the purpose of independently evaluating whether a claimed benefit or proposed treatment plan is reasonable and necessary. Section 37 expressly includes the insurer’s ability to use a section 44 IE to evaluate whether a proposed assessment itself meets that standard. Section 55(1)2 further provides that an insured person may not apply to the Tribunal in respect of a benefit if they fail to attend a section 44 IE, unless they can demonstrate a reasonable explanation for missing the examination.
9The applicant submits that he should not be barred from proceeding with the dispute. He argues that any failure to attend was not wilful or in bad faith and may have resulted from miscommunication or reasonable circumstances. He further asserts that procedural fairness requires that he be permitted to proceed or cure the default by attending a rescheduled IE.
10The respondent submits that it scheduled a psychology IE to address the March 29, 2023, bio-psychosocial assessment and that the applicant failed to attend on two occasions. It relies on correspondence dated April 14, June 21, and August 16, 2023, which confirm the scheduling of the IE, the applicant’s non-attendance, and the IE's request that the applicant provide a reasonable explanation and written confirmation of his willingness to attend before arranging a third appointment.
11The respondent argues that, pursuant to section 55(1)2, the applicant is barred from bringing this dispute before the Tribunal. It cites DS v The Personal Insurance Company, 2019 CanLII 94051 (ON LAT), and J.D.S. v Aviva General Insurance, 2019 CanLII 43896 (ON LAT), as authority that the onus is on the applicant to establish a reasonable explanation for non-attendance and that, in the absence of such explanation, the Tribunal should find the applicant statute-barred.
12The evidence shows that the respondent received the March 29, 2023, treatment and assessment plan on March 30, 2023. On April 14, 2023, the respondent wrote to the applicant, advising that it was arranging an IE to determine whether the proposed assessment was reasonable and necessary, and requesting supporting medical documentation.
13The insurer scheduled the section 44 IE with psychologist Dr. Amena Syed for June 15, 2023. The Notice of Examination stated that the applicant was required to attend the in‑person assessment because the insurer was not conducting a paper review. The applicant did not attend the appointment, and the clinic subsequently advised the insurer of the missed IE.
14On June 21, 2023, the respondent sent a Notice of Examination rescheduling the IE for July 26, 2023, reiterating the purpose of the examination and citing the statutory provisions requiring attendance. The applicant again did not attend.
15On August 16, 2023, the respondent wrote to the applicant, advising that, due to the applicant's repeated non-attendance, the bio-psychosocial assessment was denied. The letter requested that, within 10 business days, the applicant (a) confirm in writing his willingness to attend a further rescheduled IE; and (b) provide a reasonable explanation for his previous non-attendance before any further IE would be booked.
16There is no evidence that the applicant or his representative provided the requested explanation or a written confirmation of attendance at a rescheduled IE.
17In his reply submissions, the applicant states generally that any non-attendance was not wilful and was due to miscommunication or reasonable circumstances, and that he is willing to attend a rescheduled IE. However, he provides no particulars or documentation of the alleged miscommunication or circumstances, nor does he explain why no response was provided to the respondent’s August 16, 2023, letter.
18The Tribunal has consistently held that the onus rests with the applicant to establish a reasonable explanation for failing to attend a properly scheduled IE, and that a bare assertion is insufficient. While prior decisions are not binding, I find the reasoning in DS v The Personal Insurance Company and J.D.S. v Aviva General Insurance persuasive. Those cases emphasize that an applicant must provide a concrete, credible reason, supported by some evidence, before an explanation can be considered reasonable. Examples accepted in past cases have included medical emergencies, unforeseeable circumstances, or situations genuinely beyond the applicant’s control. In both DS and J.D.S., the applicants did not offer such an explanation and were therefore deemed statute‑barred until they complied with the IE request.
19On the evidence before me, I find that the insurer provided clear written notice of the IE request, including the statutory basis, the purpose of the examination, the date, time, and location, as well as an explicit warning about the consequences of non‑attendance. The applicant failed to attend two scheduled IEs and did not respond to the insurer’s subsequent written request asking for an explanation and confirmation that he remained willing to attend. To meet the threshold of a reasonable explanation, an applicant must provide a concrete and credible account, supported by some evidence, demonstrating why attendance was not possible in the circumstances. A general or unsubstantiated assertion is insufficient. In this case, the applicant’s later statement, which refers only to “miscommunication” without any details or supporting information, does not establish why he could not attend either appointment. As such, I find that the applicant has not provided a reasonable explanation for his failure to attend.
20I therefore find that the applicant has failed to establish a reasonable explanation for his non-attendance at the psychology IE. Pursuant to section 55(1)2 of the Schedule, he is barred from proceeding to a hearing before the Tribunal with respect to the March 29, 2023, bio-psychosocial assessment.
21As a result, I make no findings on the merits of the reasonableness or necessity of that assessment.
SUBSTANTIVE ISSUES ANALYSIS
Are the Applicant’s injuries predominantly minor and subject to the MIG?
22I find that the applicant’s impairments are predominantly minor within the meaning of s. 3 of the Schedule and are therefore subject to the MIG.
23Section 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.”
24An 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.
25The applicant submits that his impairments fall outside the MIG due to chronic pain and psychological impairments.
Chronic Pain
26I find that the applicant has not established the presence of a chronic pain condition warranting removal from the MIG.
27The applicant relies on hospital records, a family physician’s clinical note, and an OCF‑3 dated January 24, 2023, completed by chiropractor Dr. Sarah Rodfar. He states that these documents show multiple soft-tissue injuries to the cervical, thoracic, and lumbar spine, as well as the right wrist and shoulder girdle, accompanied by headaches and sleep disturbance. He reports ongoing pain and functional limitations affecting daily activities, including sitting, standing, walking, lifting, and overhead reaching.
28The respondent submits that the applicant’s impairments are minor and that the MIG applies. It relies on the limited pattern of post‑accident care, normal diagnostic imaging, and the insurer’s general practitioner's IE report of Dr. Pravesh Jugnundan dated October 5, 2023. The respondent notes the applicant presented to Cortellucci Vaughan Hospital on January 9, 2023, with right wrist and back pain, but that lumbar spine and wrist x‑rays were normal. Naproxen was prescribed but not filled. The respondent further relies on the applicant’s OHIP summary, which shows no accident‑related physician visits between March 22, 2023, and July 19, 2024, and on the absence of treatment records beyond two early visits. It submits that this pattern of care is inconsistent with a severe or chronic pain condition and that no corroborating evidence has been submitted to establish impairments beyond the MIG or a chronic pain syndrome.
29Based on the Cortellucci Vaughan Hospital records from January 9, 2023, I find that the applicant’s initial presentation was consistent with acute soft‑tissue injuries, specifically, left‑sided lumbar strain and right wrist discomfort, without radicular features and with normal lumbar spine and wrist x‑rays. These clinical findings align with the respondent’s position and do not, on their own, demonstrate impairments that would remove the applicant from the MIG.
30I have also considered the applicant’s February 15, 2023, visit with his family physician, Dr. Wayne Thai. Dr. Thai documented ongoing back pain, noted that the applicant was performing modified administrative duties, and assessed soft‑tissue neck and back injuries, recommending medication, massage therapy, and physiotherapy. I accept that this record supports the applicant’s position that he continued to experience discomfort several weeks post‑accident. However, while I give this evidence weight as confirmation of early soft‑tissue symptoms, it does not establish a level of impairment that would remove the applicant from the MIG. Dr. Thai’s findings remained consistent with uncomplicated soft‑tissue injuries, and there is no indication in the record of escalating symptoms, functional deterioration, or the development of a condition outside the scope of the MIG.
31I have also considered the OCF‑3 completed by Dr. Rodfar on January 24, 2023. The form documents multiple soft‑tissue injuries consistent with sprain/strain and whiplash‑type conditions and notes that activities such as sitting, standing, walking, and lifting aggravated the applicant’s symptoms. I accept that this early disability certificate supports the applicant’s position that he experienced functional limitations in the immediate post‑accident period. However, in weighing this evidence, I give it limited probative value on the issue of MIG removal. The opinions regarding a complete inability to carry on a normal life and a substantial inability to perform housekeeping are not supported by contemporaneous objective findings, and there is no evidence of sustained or escalating impairment in the months that followed. When assessed alongside the sparse treatment record, normal imaging, and lack of ongoing clinical documentation, I find that Dr. Rodfar’s OCF‑3 does not establish that the applicant’s impairments exceed the MIG.
32The OHIP summary indicates two accident‑related physician visits (hospital and family physician) and no further physician visits between March 22, 2023, and July 19, 2024. The Manulife explanation of benefits shows a single extended health claim for a chiropractic visit on April 14, 2023.
33I assign significant weight to the IE report of general practitioner Dr. Pravesh Jugnundan dated October 5, 2023, as it provides the most detailed and comprehensive clinical assessment in the record. Dr. Jugnundan diagnosed mechanical low‑back pain without neurological findings, non‑specific upper‑back soft‑tissue injuries, and a right wrist sprain/strain. He opined that these injuries remained within the definition of minor injuries under the MIG, that the applicant’s prognosis was good, and that treatment beyond the MIG was neither reasonable nor necessary. I accept these conclusions, as they are consistent with the applicant’s normal diagnostic imaging, limited treatment history, and the absence of evidence demonstrating functional deterioration or chronicity. Accordingly, I find that this IE report supports the conclusion that the applicant’s impairments do not exceed the MIG.
34I accept that the applicant experienced pain. The issue is whether, on a balance of probabilities, he has shown that his impairments exceed the definition of a minor injury as defined by the Schedule.
35The available medical evidence does not demonstrate persistent functional impairment associated with chronic pain. I find the applicant’s imaging was normal, and there were no abnormal neurological findings or specialist referrals, and the clinical notes do not document ongoing limitations. The absence of physician visits for more than a year after February 2023, and only a single chiropractic session, suggests minimal ongoing treatment was required for his accident-related pain. These factors undermine his position that he has chronic pain that has resulted in a sustained functional impairment, which is the test he must meet for removal from the MIG on this ground.
36Rather, I assign greater weight to the IE report of Dr. Jugnundan than to the expansive, OCF‑3 check‑box statements, primarily where the latter identifies concerns “not diagnosed” and is not supported by subsequent medical follow‑up or objective findings. The IE examination was thorough, documented functional findings, and is consistent with soft‑tissue injuries that typically fall within the MIG framework.
37The applicant has not provided medical evidence of a chronic pain diagnosis or chronic pain with associated functional impairment. On the record before me, his reported symptoms improved over time, his functional exam was essentially normal, and his pattern of care was limited. These factors, taken together, do not discharge the burden to establish removal from the MIG.
38On a balance of probabilities, I find the applicant has not established that he has chronic pain with a functional impairment that warrants removal from the MIG.
Psychological Impairments
39I find that the applicant has not established that he sustained psychological impairments that would warrant removal from the MIG.
40The applicant submits that he experienced psychological symptoms following the accident, including depressed mood, nervousness, irritability, and post‑traumatic stress‑type symptoms.
41The respondent submits that the applicant has not sustained psychological impairments. It notes that in the nearly two years following the accident, the applicant attended only two accident‑related medical visits, one at the hospital and one with his family physician. During the February 15, 2023, visit with Dr. Thai, the applicant was diagnosed with soft‑tissue injuries, and no cognitive or psychological symptoms were recorded.
42There is no evidence before the tribunal that any physician or psychologist formally diagnosed the applicant with a psychological disorder that would fall outside the MIG. The hospital records and Dr. Thai’s clinical note do not reference psychological complaints. Nor is there evidence of any subsequent psychological assessment, referral, or ongoing psychological treatment that would corroborate the applicant’s position.
43I find that the psychological indications checked off in the January 24, 2023, OCF‑3 completed by chiropractor Dr. Rodfar carry limited evidentiary weight. The form lists several psychological concerns—such as non‑organic sleep disorder, depressed episode, nervousness, irritability, and post‑traumatic stress disorder—but these are presented only as check‑box selections and are not accompanied by any clinical observations, assessment notes, diagnostic criteria, or referrals to a qualified mental‑health practitioner. This is important because the identification or diagnosis of psychological conditions falls outside a chiropractor’s scope of practice, and the Schedule requires that impairments relied upon for MIG removal be supported by credible, objective clinical evidence. In the absence of corroborating psychological assessments or treatment records from an appropriate provider, I am unable to place weight on these entries as establishing a psychological impairment that would remove the applicant from the MIG.
44On the balance of probabilities, I find that the applicant has not discharged his burden to establish that he sustained psychological impairments that fall outside the MIG. The contemporaneous medical records do not document psychological complaints, and there is no evidence of formal diagnosis or treatment. The OCF‑3 references psychological concerns but does not provide diagnostic confirmation or objective findings. In the absence of compelling medical evidence, I cannot conclude that the applicant’s psychological symptoms exceed the definition of a minor injury or justify removal from the MIG on this ground.
45Accordingly, I find that the applicant has not established psychological impairments that warrant removal from the MIG.
46In summary, the applicant has not met his onus to demonstrate that his impairments are more than minor injuries. The MIG therefore applies.
Is the applicant entitled to the disputed treatment plans?
47Since the applicant remains within the MIG, I do not need to evaluate whether the disputed treatment plans are reasonable and necessary.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit is due, interest does not apply.
Award
49The 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.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
50The applicant submits that the respondent unreasonably withheld or delayed payment by denying treatment and assessment plans without proper consideration of the clinical evidence and by rigidly applying the MIG classification. He argues that the denial letters were generic and failed to address the specifics of his impairments, which he says meet the threshold for an award.
51The respondent submits that it acted reasonably throughout. It notes that it paid medical benefits within the MIG, commissioned a general practitioner IE to address the June 19, 2023, plan and the MIG issue, and attempted to arrange a psychology IE regarding the March 29, 2023, assessment. The respondent relies on M.E. v Aviva Insurance Canada, 2019 CanLII 119735 (ON LAT), for the principle that an insurer is not penalized merely for being wrong; there must be evidence of unreasonable, imprudent, or stubborn conduct.
52I have determined that the applicant is not entitled to any of the disputed benefits, and the lack of eligibility is an essential contextual factor in evaluating the reasonableness of the insurer’s conduct.
53The evidence shows that the respondent funded treatment within the MIG, monitored benefits, and retained Dr. Jugnundan to conduct a s. 44 IE addressing the reasonableness of the June 19, 2023, plan and the applicability of the MIG. It also attempted to arrange a psychology IE and sent multiple letters following the applicant’s non‑attendance.
54Given the limited medical evidence, normal imaging, sparse treatment history, and the IE findings, I am satisfied that the respondent’s decision to classify the injuries as minor and deny treatment outside the MIG was reasonably based on the information available. There is no evidence of bad faith, delay, or conduct that could be characterized as excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
55Accordingly, the applicant is not entitled to an award under s. 10 of Regulation 664.
ORDER
56For the above reasons, it is ordered that:
i. The applicant is statute-barred from proceeding to a hearing before the Tribunal with respect to the March 29, 2023, bio-psychosocial assessment.
ii. The applicant’s injuries are predominantly minor; thus, the MIG monetary limits apply.
iii. Since the applicant is within the MIG, I do not need to assess whether the disputed treatment plans are reasonable and necessary.
iv. The applicant is not entitled to interest or an award.
Released: January 22, 2026
Harouna Saley Sidibé
Adjudicator