Licence Appeal Tribunal File Number: 24-002913/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:
Evan Belfitt
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Ilona Agivaeva, Counsel
For the Respondent:
Jenna Ng, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Evan Belfitt, the applicant, was involved in an automobile accident on August 2, 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 s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $3,162.87 for a chronic pain assessment, proposed by Medex Assessments Inc. in an OCF-18/treatment plan (“plan”) dated December 3, 2022?
iii. Is the applicant entitled to $2,690.40 for physiotherapy services, proposed by Focus Health Physiotherapy + Wellness in a plan dated February 14, 2024?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The 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.
4As the applicant is in the MIG, it is not necessary to consider if the treatment plans are reasonable and necessary. The disputed plans are not payable pursuant to s. 38(11).
5The applicant is not entitled to interest.
6The application is dismissed.
ANALYSIS
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
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.
Chronic Pain
10The applicant argues that he has developed chronic pain with a functional impairment sufficient to warrant removal from the MIG. The applicant was diagnosed with mechanical back pain by his family doctor, Dr. Wilder Leduc, on August 17, 2023, approximately three years post-accident. Dr. Leduc also notes the applicant’s subjective complaints as:
i. “Here for chronic low back pain,
ii. Pain is mostly when doing activities, bumpy roads,
iii. Struggling with work, on modified duties,
iv. Pain with standing up after sitting for prolonged period of time.”
11While there is no chronic pain diagnosis, the applicant argues that the Tribunal should consider that the pain has persisted for more than three to six months and is chronic in nature, sufficient to warrant removal from the MIG. In this regard, the applicant refers me to C.G. v The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT)(“CG”). The applicant relies on paragraphs 34-39 of CG to assert that a documented development of chronic pain is sufficient to fall outside the definition of a minor injury. This decision is not binding on me, and it is distinguishable. Upon review, the referenced paragraphs were specifically addressing the question of whether a formal diagnosis of chronic pain is required, which is not what this hearing turns on. In CG, the Tribunal was considering unique facts, including the issue of causation, which included evidence of the applicant’s functional impairments pre- and post-accident.
12I find that the applicant has not discharged his evidentiary burden. The Tribunal has held that pain which lasts past the period in which soft tissue or minor injuries should have been resolved is sequelae within the confines of the MIG without particulars and evidence regarding the level of pain, functional impairment, and how bearable the pain is without treatment. The applicant has not referred me to evidence establishing these particulars.
13The applicant argues that he has consistently reported back pain post-accident, and it impacts his daily activities, including his ability to work at his pre-accident capacity. I do not have evidence before me that would establish the applicant is impaired in his daily activities, or to what extent he may be impaired in his ability to work. The applicant’s self-report in Dr. Leduc’s notes that he struggles at work and is on modified duties is not supported by evidence and I am not referred to particulars. The respondent submits that the applicant did not work prior to the accident, which was not rebutted. This further brings into question what the applicant defines as his ability to work at his pre-accident capacity.
14The applicant’s medical evidence includes seven clinical notes and records (“CNRs”) from his family doctors and an initial report by Lynne Ouellette Prisque, physiotherapist. Dr. Leduc’s CNR dated August 21, 2024 states that the applicant reported he continues suffering from low back pain and that although he had physiotherapy treatment in the past, it provided a slight improvement in his discomfort, and he does not currently have coverage for physiotherapy. The applicant’s submissions suggest that he stopped getting treatment because of a lack of funding from the respondent insurer. However, whether the applicant has exhausted the MIG limit is unclear from the evidentiary record I am referred to. It is unclear because while the applicant suggests he did not have funding to continue treatment, the respondent’s submissions suggest the applicant has funds available under the MIG but was discharged via OCF-24 from CBI Health Centre on November 17, 2020 for non-attendance. Further, the two denial notices for the plans in dispute also suggest that the MIG had not been exhausted at the time they were delivered. For example, the February 29, 2024 notice confirms the applicant is entitled to receive treatment under the MIG and to submit an OCF-23. The Case Conference Report and Order required the parties to identify the amount remaining in their submissions but neither party has clearly done so. In any case, while clarity on this would provide helpful overall context of the file, it is not directly relevant to whether the applicant has chronic pain with a functional impairment that warrants removal from the MIG. As it relates to Dr. Leduc’s opinion that the applicant requires massage, physiotherapy and chiropractic treatment for his back pain and strain, a referral for further treatment is not sufficient to warrant removal from the MIG.
15The respondent refers me to the six criteria in The American Medical Association’s, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, (“AMA Guides”). The Tribunal has held that they are a helpful tool in the assessment of chronic pain. While the AMA Guides criteria for chronic pain were not incorporated into the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes in the absence of a diagnosis of chronic pain. The applicant has not addressed the criteria in submissions. I find that the applicant has not been diagnosed with chronic pain and that the applicant has not addressed the AMA Guides criteria to assist me in my analysis. Further, the evidence referred to by the applicant does not contain any meaningful particulars of the applicant’s condition, either about his pain or his functional impairment, that would establish that removal from the MIG is warranted.
16Based on the above, on a balance of probabilities, I find that the applicant has not established he has chronic pain with a functional impairment that warrants removal from the MIG.
The applicant is not entitled to payment in the amount of $3,162.87 for a chronic pain assessment, and $2,690.40 for physiotherapy services
17Since the applicant is subject to the MIG, an analysis of whether the proposed plans are reasonable and necessary is unwarranted. However, the applicant also argues that the denial notices for both plans are deficient because while they contain reasons, they do not contain any medical reasons that are specific to the applicant’s condition. I find that the amounts of $3,162.87 for a chronic pain assessment, and $2,690.40 for physiotherapy services are not payable pursuant to s. 38(11).
18Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
Chronic pain assessment notice dated December 15, 2022 and physiotherapy services notice dated February 29, 2024
19I find that the respondent’s notice dated December 15, 2022 includes medical reasons by specific reference to the applicant’s uncomplicated soft tissue injuries. The February 29, 2024 notice references the applicant’s family doctor’s diagnosis of mechanical back pain being within the definition of a minor injury, and the opinion of a s. 44 assessor that his injuries are within the definition of a minor injury. Both correspondence include a notice of examination by a s. 44 assessor. I find the respondent’s denial is compliant with s. 38(8).
20Accordingly, I find on a balance of probabilities that the respondent’s notices comply with s. 38(8) of the Schedule.
Interest
21There are no overdue benefits subject to interest under s. 51 of the Schedule.
ORDER
22For the reasons above, I make the following orders:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
ii. The proposed plans are not payable pursuant to s. 38(11).
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: January 19, 2026
Amar Mohammed
Adjudicator