Licence Appeal Tribunal File Number: 24-007406/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:
Joseph Louis
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Estella Muyinda
APPEARANCES:
For the Applicant:
Julia Logoutova, Counsel
For the Respondent:
Christina Campoli, Counsel
HEARD:
By way of written submission
OVERVIEW
1Jospeh Louis, the applicant, was involved in an automobile accident on October 25, 2022, 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 (“MIG”) limit?
Is the applicant entitled to $2,461.62 for physiotherapy services, proposed by 2430307 Ontario Ltd. operated as Assessment Services in a treatment plan/OCF-18 (“plan”) submitted June 13, 2023, and denied August 2, 2023?
Is the applicant entitled to $3,185.19 for physiotherapy services, proposed by 2430303 Ontario Ltd. operated as Winford Clinic in a plan submitted May 19, 2023, and denied May 29, 2023?
Is the applicant entitled to $2,227.73 for physiotherapy services, proposed by 2430303 Ontario Ltd. operated as Winford Clinic in a plan submitted August 22, 2023, and denied September 5, 2023?
Is the applicant entitled to $1,749.00 for physiotherapy services, proposed by 2430303 Ontario Ltd. operated as Winford Clinic in a plan submitted October 11, 2023, and denied October 24, 2023?
The applicant entitled to $2,300.00 for a psychological assessment, proposed by 2430307 Ontario Ltd. operated as assessment service in a treatment plan submitted August 1, 2023, and denied September 21, 2023?
Is the applicant entitled to interest on any overdue payment of benefits for issues 3, 4 & 5.
RESULT
3The applicant has not met his burden in establishing that his accident-related injuries warrant removal from the MIG.
4As the applicant remains in the MIG, it is not necessary for me to consider if the treatment plans for physiotherapy services and a psychological assessment are reasonable and necessary.
5The applicant is not entitled to interest.
6This application is dismissed.
PROCEDURAL ISSUES
7The respondent submits that the Tribunal should not admit as evidence the clinical notes and records from Dr. Ishaan Arora, of Town Care Medical Clinic dated March 13, 2025, because the applicant did not serve these records in accordance with the Case Conference Report and Order (“CCRO”). The respondent submits that it received Dr. Arora’s records from the applicant in her written hearing submissions.
8The respondent argues that according to the CCRO both parties are required to exchange all “other documents” the parties intend to rely on as evidence at the hearing, no later than 75 calendar days after the case conference. The respondent states the CCRO requirement to exchange “all other documents” does not refer to the documents the parties previously exchanged which they intend to rely on as evidence at the hearing.
9The applicant did not submit any evidence or response to the respondent’s allegation concerning his filing of Dr. Arora’s clinical notes and records. As well the applicant did not file a motion to the Tribunal seeking to add or include the clinical records from Dr. Arora.
10I agree with the respondent that the applicant did not file the clinical notes by no later than 75 calendar days after the case conference as required by the CCRO dated October 17, 2024.
11The applicant has not provided any submissions as to why I should exercise my discretion to admit the late-filed evidence. The applicant did not provide any submissions on the factors in Rule 9.3 of the LAT Rules, including the prejudice to the parties, the reasons for non-compliance or relevance. When I look at the other factors in Rule 9.3, the respondent opposes the admission of the documents, and the information was not within the knowledge of the respondent. Given the lack of submissions from the applicant and the prejudice to the respondent, it would be procedurally unfair to admit these documents.
12Accordingly, I find that the applicant may not rely on the clinical records by Dr. Arora as evidence and decline to admit them into the evidentiary record.
ANALYSIS
Minor Injury Guideline
13I find that the applicant has not met his onus to establish that his accident-related injuries fall outside the definition of a “minor injury,” as set out in s. 3(1) of the Schedule.
14Section 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.”
15An 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 condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
16In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
17The applicant submits that he should be removed from the MIG on the grounds that he sustained a psychological injury and chronic pain because of the accident. The respondent disagrees.
Chronic Pain
18The applicant submits that he developed a chronic pain condition, and he needed treatment to assist him with pain reduction.
19The applicant submits that because of the accident, he sustained injuries to his mid back, low back, left elbow, right shoulder and a significant loss of function. The applicant submits that he was diagnosed with scoliosis and disc space narrowing and damage to the collateral ligaments of the elbow, thus, he developed a chronic pain condition.
20The applicant relies on the clinical notes and records from Town Care Medical Clinic, that list a record of the injuries he was experiencing. As well, the applicant relies on the CNRs by Dr. Ishaan Arora, family doctor, but as per my procedural order, the CNRs have not been admitted as evidence at this hearing.
21The applicant relies on the CNRs of Dr. Mohammad Abounaja, medical doctor, for the period of October 25, 2019, to July 2024. The applicant submits that the CNRs of Dr. Abounaja contain records about the back pain he experienced in October 2021, anxiety in May 2022 and complaints of right shoulder pain post-accident in February 2023.
22The CNRs reveal that at a check up on October 15, 2021, it was noted by Dr. Abounaja that the applicant had presented with a history of back pain in January 2021 following an accident. Given that the subject accident happened on October 25, 2022, I find that this note is not relevant to the dispute because it refers to an accident that happened a year earlier in 2021, and not to the subject accident. Furthermore, the applicant relies on the evidence of Dr. Paul Bruni, chiropractor, to support his claim that he experiences chronic pain. In the additional notes to the treatment plan dated May 16, 2023, Dr. Bruin stated that the applicant’s injuries are chronic because the applicant has not recovered in the usual healing time and diagnosed the applicant with chronic pain.
23The respondent relies on the opinion of Dr. Pravesh Jugnundan in three Insurer Examination (IE) Reports dated June 21, 2023, July 21, 2023, and September 8, 2023. Dr. Jugnunandan opined that the applicant sustained soft tissue injuries as a result of the subject accident and, therefore, his injuries fall under the MIG.
24Further, the respondent argues that the evidence of Dr. Paul Bruni, chiropractor, indicating that the applicant has developed chronic pain should not be given any weight. The respondent argues that according to Williams v. Aviva Insurance Company, 2023 ONLAT 21-002404/AABS, at para 32, chiropractors do not have the authority to diagnose chronic pain under the MIG. I accept the respondent’s argument, and as a result, I place no weight on Dr. Bruni’s diagnosis of “chronic pain” because I find that under ss. 3 and 4 of the Chiropractic Act, 1991, SO 1991, c. 21 (“Chiropractic Act”), it is not within chiropractor’s scope of practice to diagnose chronic pain. Accordingly, I find that Dr. Bruni’s diagnosis of chronic pain is outside his scope as a chiropractor.
25The applicant has not led evidence of chronic pain from his treating doctors or treatment providers. Nor has he submitted corroborating medical evidence from his medical service providers that establish he is experiencing chronic pain. The applicant has not submitted evidence of prescription medication or any consistent pain reports.
Functional Impairment.
26The applicant did not provide any medical evidence that showed that she continued to suffer from pain following the accident, nor did the applicant provide any evidence that she suffered functional impairment due to her accident-related injuries.
27Based upon the foregoing, I conclude that the applicant has not sustained a chronic pain condition as a result of the accident. As such, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.
Psychological Injury
28The applicant submits that he sustained psychological injuries that included depressive episode, malaise and fatigue, disorder of sleep-wake schedule and nervousness. He further argues that as a result of the accident, he developed symptoms of increased stress, anxiety and psycho-emotional symptoms.
29The applicant relies on the clinical notes and records from Dr. Abounaja to say that he experienced anxiety in May 2022. However, the CNR from Dr. Abounaja do not reveal any records or point to the applicant’s psychological injuries resulting from the accident.
30The applicant has not pointed me to any psychological diagnosis or medical evidence to establish that he suffers from a psychological injury due to the accident.
31I find that the applicant has not submitted corroborating medical evidence from his medical service providers that would establish his experience of a psychological injury as a result of the accident.
32I find that the applicant has not provided any medical evidence to establish that he suffers from a psychological injury due to his accident. Accordingly, this failure is enough to dismiss the applicant’s argument about a psychological injury. However, for completeness, I will briefly mention the respondent’s position.
33The respondent relies on its s. 44 assessor Dr. Kelly McCutcheon, psychologist, who found that the applicant does not have psychological impairments. The respondent submits that Dr. McCutcheon, previously assessed the applicant on April 14, 2023, and she found no diagnosable psychological condition or functional limitations, Further, the respondent argues that the applicant has never reported psychological complaints to his family doctor or attended psychological treatment.
34Having considered the applicant’s onus of proof and the evidence before me, I find that the applicant has not proven that they should be removed from the MIG on the basis of a psychological injury.
Non-Compliance with s.38 of the Schedule
35I find that the denial letters complied with s. 38(8) of the Schedule,
36Section 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 a impairment to which the MIG applies.
37The applicant submits that the denial letters dated May 29, 2023, August 2, 2023, September 5, 2023, October 24, 2023, and September 21, 2023, are not compliant with s.38(8) of the Schedule. The applicant argues that the respondent failed to advise the applicant about the injuries and symptoms listed in the treatment plans in dispute; and failed to compare the injuries listed in treatment plans in dispute to the Minor Injury Guideline.
38The respondent submits that it complied with s. 38(8) of the Schedule for all the treatment plans and provided its response within 10 days of receipt of the treatment plans. The respondent stated in the denial letters that the applicant sustained primarily uncomplicated musculoskeletal soft tissue strain/sprain/contusion injuries as a direct result of the accident that would be classified as minor injuries as defined by the MIG. Further, the respondent submits that the s.44 assessors it relied upon opined that the applicant’s injuries were within the MIG.
39I find that the respondent complied with section 38(8). I have reviewed the respondent’s denial letters of May 29, 2023, August 2, 2023, September 5, 2023, October 24, 2023, and September 21, 2023, for a psychological assessment and physiotherapy services treatment plans that were based on the s. 44 IE Report of Dr. Jugnundan dated July 21, 2023, in which he opined that the treatment plans were not reasonable and necessary. As well, the chronic pain assessment treatment plan denied on September 21, 2023, that was based upon the IE Reports of Dr. McCutcheon and Dr. Jugnundan, who opined that it is not reasonable and necessary, and the applicant remains in the MIG.
40I find that the respondent was compliant with s. 38(8) because the respondent offered an explanation why it denied the treatment plans and the denial letters included clear and sufficient medical reasons. I find that the denial letters complied with s. 38(8) of the Schedule, and therefore the treatment plans are not payable on account of s. 38(11).
Non-Compliance with s.44 of the Schedule
41I find that the respondent has complied with s.44(5) of the Schedule.
42Section 44(5)(a) states that, if an insurer requires an examination under this section, the insurer shall give the insured person a notice setting out the medical and any other reasons for the examination, whether the attendance of the insured person is required, the name of the person conducting the examination, any regulated health profession to which they belong including their titles, and designations indicating their specialization, if any. The notice must also include the day, time, and location of the examination and if the examination will require more than one day, the same information for the subsequent days is also required.
43The applicant relies on Le v. TD Insurance Meloche Monnex, 2023 CanLII 15062 (ON LAT) to state that the respondent did not comply with the requirements of s.44(5) of the Schedule. The applicant submits that all the Notices failed to provide the clear medical reasons for the examination.
44Further, the applicant submits that his attendance at the medical insurer examination and that the results of the examinations should be considered invalid, and relies on Moiz Taskali and Aviva Insurance Company, 2023 ONLAT 21-004696/AABS.
45The respondent submits that it complied with s.44 of the Schedule. The respondent states that the physiological services claimed by the applicant were deemed not reasonable and necessary based on an Insurer’s Examination report completed by Pravesh Jugnundan, medical doctor, on June 21, 2023. Further the respondent pointed to correspondence dated June 29, 2023, which references the applicant’s medical conditions and medical reasons for the denial.
46Upon review, I find that the denial letters referenced the s.44 assessments of Dr. Pravesh Jugnundan who opined that the applicant’s injuries remained in the MIG, and the treatment plans were not reasonable and necessary. Further, the denial letters provided clear and sufficient medical reasons. Accordingly, I find that the respondent complied with s.44 of the Schedule.
47Furthermore, the applicant attended and participated in the assessments with Dr. Pravesh Jugnundan and Dr. McCutcheon without any protest, and as such, I find that the applicant’s arguments of the admissibility of the IE reports, and the respondent’s reliance on them in denying treatment plans are a moot point. I find that the respondent was entitled to rely on the resulting s. 44 report.
48As the applicant remains in the MIG, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits have been found to be owing, interest is not applicable.
ORDER
49The applicant has not met his burden in establishing that his accident-related injuries warrant removal from the MIG.
50As the applicant remains in the MIG, it is not necessary for me to consider if the treatment plans are reasonable and necessary.
51The applicant is not entitled to interest.
52This application is dismissed.
Released: May 28, 2026
Estella Muyinda
Adjudicator