Licence Appeal Tribunal File Number: 24-014517/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:
Leanda Johnson
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Moninder Khattra, Counsel
For the Respondent:
Paras Gogna, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Leanda Johnson, the applicant, was involved in an automobile accident on July 24, 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
2The issues in dispute 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?
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from February 1, 2024 to ongoing?
Is the applicant entitled to the services proposed by North Toronto Rehabilitation and Physiotherapy Clinic, as follows:
i. $1,555.05 for physiotherapy services, in a treatment plan/OCF-18 (“treatment plan”) dated April 18, 2024
ii. $284.71 ($1,300.00 less $1,015.29 approved) for physiotherapy services, in a treatment plan dated October 11, 2023;
iii. $3,589.89 for physiotherapy services, in a treatment plan dated August 10, 2023;
iv. $2,381.91 for physiotherapy services, in a treatment plan dated October 10, 2023;
v. $1,986.41 for physiotherapy services, in a treatment plan dated November 10, 2023; and
vi. $1,697.86 for physiotherapy services, in a treatment plan dated January 11, 2024?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
The applicant is subject to the MIG and its $3,500.00 funding limit.
The applicant is not entitled to an IRB.
As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
As no payments are owing, no interest is due.
The application is dismissed.
ANALYSIS
Applicability of the MIG
4I find that the applicant has not established on a balance of probabilities that she sustained injuries as a result of the accident that warrant her removal from the MIG.
5Section 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.”
6An 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.
Pre-existing condition
7I find that the applicant has not established on a balance of probabilities that she has a pre-existing condition that warrants her removal from the MIG.
8The applicant submits that prior to the accident the applicant had been diagnosed with carpal tunnel syndrome, hypertension, ankle fracture and calcific tendinosis in her right shoulder, and had fractured her left hand in a fall on February 19, 2023, five months before the accident. The applicant relies on the clinical notes and records of her family doctor, Dr. Ullanda Neil dated July 22, 2022 through November 28, 2023.
9The respondent argues that the applicant has not met her onus to prove that she had pre-existing conditions that would warrant her removal from the MIG. The respondent relies on the s.44 insurer’s examination report of Dr. Matthew Krievins, physician, dated December 11, 2023, in which Dr. Krievins opined that the applicant’s pre-existing conditions would not prevent the applicant from recovering from her accident-related injuries within the MIG funding limit.
10The evidence reveals that the applicant sustained a fracture of her left hand on February 19, 2023, for which she was undergoing physiotherapy and occupational therapy, and that she had a history of bilateral carpel tunnel syndrome, for which she had surgery prior to 2022.
11However, it is not enough to demonstrate that an applicant had a documented, pre-existing condition to meet the test for removal from the MIG based on s. 18(2) of the Schedule. An applicant must also provide “compelling evidence” that the pre-existing condition will “prevent the insured person from achieving maximal recovery from the minor injury” if held to the MIG. The applicant did not direct me to any medical evidence to establish that her pre-existing conditions would preclude recovery from her accident-related injuries within the MIG to meet the second part of the test.
12As a result, I find that the applicant has not met her onus to prove on a balance of probabilities that she has a pre-existing condition that warrants her removal from the MIG.
Chronic pain
13I find that the applicant has not established on a balance of probabilities that she has chronic pain with functional impairment as a result of her accident-related injuries that warrants removal from the MIG.
14The applicant submits that she should be removed from the MIG because she suffers from ongoing pain in her neck and back since the accident. In addition to Dr. Neil’s CNRs, the applicant relies on the CNRs of the Scarborough Health Network emergency department, and the CNRs of North Toronto Rehabilitation and Physiotherapy, dated July 28, 2023 through May 23, 2024.
15The respondent argues that the applicant has not met her onus to prove that she suffers from chronic pain with functional impairment, as she has not been diagnosed with chronic pain and that she had reported to Dr. Krievins that she was independent in her personal care and housekeeping activities. The respondent relies on Dr. Krievins, December 11, 2023 general practitioner insurer examination (“IE”) report, in which he opined that there was no objective evidence of an ongoing impairment as a result of the accident, and that the applicant’s injuries were consistent with a “minor injury” as defined in the Schedule. The respondent further relies on Dr. Krievins subsequent IE paper reviews, and a further IE conducted on June 26, 2024, in which he confirmed his opinion that the applicant’s soft tissue injuries fell within the MIG.
16I accept that the applicant experienced ongoing pain in her back and neck in the 4 months following the accident, however I find that the applicant has not established on a balance of probabilities that she suffers from chronic pain with functional impairment as a result of her accident-related injuries.
17The CNRs of Scarborough Health Network – General emergency department reveal that the applicant attended the hospital on July 25, 2023, the day after the accident. She reported that she had not been injured in the accident, but that the accident was loud, and she complained of a headache since the accident. The applicant also complained of pain in her right ankle from a fall two to three weeks before the accident.
18The evidence reveals that the applicant complained of back and neck pain to her family doctor on July 31, 2023, six days after the accident, and was diagnosed with acute whiplash, prescribed with pain medication, and referred for physiotherapy. Dr. Neil’s CNRs reveal only one complaint of back pain by the applicant on August 21, 2023, when the applicant reported that her neck was no longer stiff, but she had pain and stiffness in her lower back. However, I note that Dr. Neil’s CNRs also reveal that she completed a disability claim form for a third party insurer on November 1, 2023, 3 months after the accident, indicating that the applicant had a “slight limitation of functional capacity,” and that the applicant was capable of moderate activity, however modified work duties were not available to her. The applicant has not directed me to any CNRs from Dr. Neil after November 28, 2023 that support that she has chronic pain with a functional limitation.
19The applicant submits that she complained of back and neck pain on almost every visit to her physiotherapy providers. However, I find that the CNRs of North Toronto Rehabilitation and Physiotherapy shed little light on the applicant’s accident-related back and neck pain, as they are hand-written and mostly illegible.
20Further, the applicant has not made submissions or directed me to further medical or other evidence with respect to the impact of her accident-related pain on her function.
21For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she has chronic pain with functional impairment as a result of her accident-related injuries.
22Accordingly, the applicant remains subject to the MIG and its $3,500.00 funding limit.
Is the applicant entitled to an IRB of $400.00 per week from February 1, 2024 to ongoing?
23I find that the applicant has not established on a balance of probabilities that she is entitled to an IRB of $400.00 from February 1, 2024 to date and ongoing.
Pre-104 Week IRB
24To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
25Although the issue in dispute as set out in the Case Conference Report and Order (“CCRO”) is the applicant’s entitlement to an IRB from February 1, 2024 and ongoing, the applicant submits that she is entitled to an IRB from February 1, 2024 to August 6, 2024, because she was unable to return to work due to her accident-related injuries until that date.
26The respondent argues that it approved an IRB for the applicant on December 9, 2023, in the amount of $51.03 weekly backdated to August 23, 2023, which was stopped on February 1, 2024, following the January 26 IRB assessment IE reports of Dr. Krievins and Dr. Reza Nabavi, chiropractor.
27The applicant has not made submissions of directed me to evidence with respect to the essential tasks of her employment, which tasks she is unable to perform, or the extent that she is unable to perform them to meet the pre-104 week test.
28For these reasons, I find that the applicant has not met her onus to prove on a balance of probabilities that she is entitled to an IRB in the amount of $400.00 per week from February 1, 2024 to August 6, 2024.
29As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.
ORDER
31I find that:
The applicant is subject to the MIG and its $3,500.00 funding limit.
The applicant is not entitled to an IRB.
As I have found that the applicant remains subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
As no payments are owing, no interest is due.
The application is dismissed.
Released: May 7, 2026
Kathleen Wells
Adjudicator