Citation: Betlejemski v. Belair Insurance Company Inc., 2026 ONLAT 24-007665/AABS

Licence Appeal Tribunal File Number: 24-007665/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:

Bonny Betlejemski

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

For the Applicant: Laura Zeleznik, Counsel

For the Respondent: Eluxmeenah Rishihesan, Counsel

HEARD: By way of written submissions

1Bonny Betlejemski, the applicant, was involved in an automobile accident on July 13, 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 $1,994.28 for an occupational therapy assessment, proposed by St. Joseph Health Care, London in a treatment plan/OCF-18 dated June 14, 2022?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. The applicant is removed from the MIG;

ii. The applicant is entitled to the treatment plan in dispute, plus interest; and

iii. The respondent is not liable to pay an award.

PROCEDURAL ISSUES

4On June 12, 2025 the applicant filed a Notice of Motion (“NOM”) requesting that the timeline for her written hearing submissions be extended by one day. The NOM explained that the June 11, 2025 deadline had inadvertently been missed due to an administrative error by the applicant’s counsel. The NOM stated that the one day extension would not create any prejudice and would be in keeping with the principles in Rule 9 of the Licence Appeal Tribunal Rules. The respondent did not file responding motion submissions to dispute the extension of the timeline.

5The applicant’s request for an extension of time to file her written hearing submissions, is granted.

6The applicant filed her written hearing submissions one day after the deadline stipulated in the Case Conference Report and Order, and I note that the respondent did not dispute the extension of time. The respondent was also able to provide its responding submissions on June 27, 2025. When considering the principles in Rule 9 of the LAT Rules, I find that the respondent is minimally prejudiced by the one-day delay. However, the applicant would be significantly prejudiced if the extension was not granted and she was prohibited from presenting the entirety of her case. Accordingly, the applicant’s request for a one-day extension is granted.

ANALYSIS

Minor Injury Guideline

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

8An insured person 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.

The applicant is removed from the MIG on the basis of chronic pain

9I find the applicant has provided sufficient evidence to support her claim that she suffers from a chronic pain condition with functional impairment as a result of the accident.

10Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, she must demonstrate that her pain causes a functional impairment which adversely affects her well-being. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.

11The applicant relies on a July 3, 2024 report of Dr. Lipson, physiatrist. Dr. Lipson diagnosed the applicant with chronic pain syndrome, sprain/strain of her cervical spine and right shoulder girdle, cervicogenic headaches, and chronic sleep disruption due to chronic pain. The applicant was found to have reduced range of motion in her right shoulder and a high degree of pain and apprehension was noted on examination. Dr. Lipson noted that these impairments affected her activities of daily living, such as driving, housework, some of her self-care activities and some recreation and leisure activities.

12I find that Dr. Lipson’s chronic pain diagnosis is supported by the medical record. The medical evidence establishes that the applicant persistently complained of right shoulder and neck pain in the years post accident. The hospital records reveal that the applicant reported shoulder and neck pain immediately after the accident. The clinical notes and records (“CNRs”) of her family doctor Dr. Peter Labruzzo establish that the applicant continued to report right shoulder and neck pain persistently from August 2020 to February 2023. Prescription pain medication was prescribed, with the applicant reporting to Dr. Labruzzo that Tylenol 3 was helpful, and pregabalin was prescribed for a trial period. A June 28, 2021 ultrasound of the right shoulder and neck confirmed right rotator cuff tendinopathy and a January 2, 2023 MRI confirmed mild supraspinatus tendinosis and a possible small partial thickness tear. Cortisone injections in the right shoulder were also attempted, though the applicant reported they were also not helpful.

13These pain reports are corroborated by the CNRs of the applicant’s treating psychiatrist, Dr. Sharma, who had been treating the applicant for her pre-accident conditions of bi-polar disorder, depression and anxiety. From 2020 to 2024 the applicant repeatedly reported pain in her shoulder, neck and headaches to Dr. Sharma. In a November 7, 2020 CNR entry, Dr. Sharma noted that the applicant’s neck and shoulder pain affected her daily functioning and worsened her symptoms of depression, and the applicant’s dose of Trazodone was temporarily increased.

14In addition to persistent reports of pain, the medical evidence also supports Dr. Lipson’s findings of functional impairment due to pain. The applicant reported to Dr. Labruzzo on December 10, 2020, and January 7, 2021 that she was unable to complete chores such as house cleaning, due to her right shoulder and neck pain. In a June 9, 2022 assessment, Dr. Labruzzo found that the applicant had decreased external and internal right shoulder rotation due to pain.

15The applicant also persistently reported functional impairments due to pain to her treating psychiatrist Dr. Sharma. In CNR entries dated November 7, 2020, February 6, 2021, August 7, 2021, and May 7, 2022 Dr. Sharma noted that the applicant’s pain symptoms affected her daily activities, such as carrying groceries, cleaning and housekeeping tasks. The applicant also reported to Dr. Sharma in a number of visits that her neck and right shoulder pain interfered with her sleep. In a June 1, 2024 CNR entry Dr. Sharma stated that he supported the applicant’s use of an adjustable bed, as she suffered from poor sleep, in part, due to her physical pain. In A November 2, 2024 CNR entry, Dr. Sharma noted that the applicant continued to experience a lot of pain in her shoulder which affected her functioning. Accordingly, I agree with the applicant that the medical evidence establishes she suffered from functional impairment due to her right shoulder and neck pain.

16The respondent argues that the applicant has not established functional impairment due to pain. It relies on the occupational therapy (“OT”) assessment report dated January 19, 2023 of Demetrios Kostadopoulos. It argues that Mr. Kostadopoulos found that the applicant was managing well with her activities of daily living. The respondent further argues that the December 3, 2024 report of Jacqueline Toman found that there was a high range of symptoms exacerbation concerns and that functional testing did not reveal anything substantial.

17I am not persuaded by the respondent’s argument that its s. 44 OT assessments establish that the applicant did not experience functional impairment due to pain. In my view, the objective medical record, being the CNRs of the applicant’s treating family physician and treating psychiatrist, reveal consistent reports of functional impairments due to pain in the years post-accident. I place significant weight on the records of the applicant’s treating doctors and find that they provide persuasive evidence of functional limitations.

18For the reasons outlined above, I find that the applicant has proven on a balance of probabilities that she suffers from chronic pain with functional impairment, that warrants removal from the MIG.

OCF-18 dated June 14, 2022 for an occupational therapy assessment in the amount of $1,994.28

19I find the applicant has established that the proposed occupational therapy assessment is reasonable and necessary.

20To receive payment for a treatment plan under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify that the goals of treatment are reasonable, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable. In the context of an assessment, while the applicant does not need to prove the condition exists, she must prove with persuasive evidence, that there is some accident-related condition that warrants investigation via the proposed assessment.

21The OCF-18 proposed an OT assessment to compare the applicant’s pre-accident function to present function and to assess and make recommendations for in home supports to aid recovery. The stated goals of the treatment plan were a return to the activities of normal living and a return to pre-accident work activities.

22The respondent relies on its OT assessment to argue that the applicant’s request for an OT assessment was not reasonable and necessary. Mr. Kostadopoulos found that the applicant’s range of motion over all domains was functional and that the proposed OCF-18 was not reasonable and necessary as the applicant was managing well with her activities of daily living. The applicant relies on the incurred OT assessment of Jacqueline Toman dated December 3, 2024. Ms. Toman found that the applicant experienced significant functional limitations due to persistent neck, right shoulder pain, fatigue and emotional distress. Occupational services were recommended to assist the applicant in implementing strategies to manage her symptoms and return to daily activities.

23I find that the applicant is entitled to the treatment plan for an occupational therapy assessment. As concluded above, I have found that the applicant has proven on a balance of probabilities that she suffered from chronic pain as a result of the accident. Therefore, in the context of the occupational therapy assessment proposed, she has provided persuasive evidence that she suffered some accident-related condition that warrants investigation via the proposed assessment. I find based on her reported functional limitations, which were supported by the medical evidence at the time the treatment plan was proposed, she has proven that the occupational therapy assessment was reasonable and necessary.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the occupational therapy treatment plan.

Award

25The applicant sought an award under s. 10 of Reg. 664. Under s. 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 applicant argues that the respondent has been unduly unyielding in its position that she remains within the MIG.

26I find that the applicant has not established a basis for an award. Although she provides the general submission that the respondent was unyielding in its determination that she remains in the MIG, she does not direct me to specific examples of the unreasonable withholding of benefits. While I agreed with the applicant that her accident-related impairments warranted removal from the MIG, it is well-settled that an award is not granted simply because an insurer made an error. Accordingly, the applicant has not established that she is entitled to an award.

ORDER

27I find that: