Citation: McAlpine v. Wawanesa Mutual Insurance Company, 2026 ONLAT 24-011941/AABS

Licence Appeal Tribunal File Number: 24-011941/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:

Tara McAlpine

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Daniel Fenwick, Counsel

For the Respondent: Aliza Lalji, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tara McAlpine, the applicant, was involved in an automobile accident on March 3, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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?
2. Is the applicant entitled to $2,404.00 for physiotherapy services, proposed by Pulse Physiotherapy in a treatment plan/OCF-18 (“treatment plan”) submitted April 21, 2023?
3. Is the applicant entitled to $469.00 for physiotherapy services, proposed by Pulse Physiotherapy in a treatment plan submitted November 22, 2022?
4. Is the applicant entitled to $868.00 for physiotherapy services, proposed by Pulse Physiotherapy in a treatment plan submitted November 18, 2024?
5. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is subject to the MIG and its $3,500.00 funding limit
2. As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
3. As no payments are owing, no interest is due.
4. The applicant is not entitled to an award.
5. The application is dismissed.

ANALYSIS

Applicability of the MIG

4Section 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.”

5An 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.

6The applicant argues that she should be removed from the MIG because she suffers from chronic pain with functional impairment as a result of the accident.

Chronic Pain

7I 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 the accident.

8The applicant submits that she should be removed from the MIG as she suffers from chronic pain in her lower back, hips, knees, wrists, and neck due to her accident-related injuries. She relies on the April 29, 2024 s. 25 chronic pain assessment report of Dr. Kevin Rod, physician, who diagnosed the applicant with chronic pain, and the April 16, 2025, the s. 25 Future Cost of Care Report prepared by Marla Tennen, Registered Nurse and Certified Life Care. The applicant also relies on the March 3, 2025 occupational health consultation report of Dr. Craig Winsor, physician.

9Although the applicant directed me to the above-noted reports, I note that she also referenced her “treating physician’s recommendations” in her submissions. However, the applicant did not name her physician or provide pinpoint references to her or any other treatment provider’s clinical notes and records (“CNRs”) in her submissions. The applicant’s document brief is more than 2300 pages in length. Consistent with the Divisional Court holding in Dooman v. TD Insurance Co . 2025 ONSC that upheld the Tribunal’s finding that it is not appropriate for an adjudicator to go through the applicant’s evidence and make their case for them, I have not considered evidence to which the parties have not directed me.

10As such, I will consider the evidence of the applicant’s treatment providers submitted by and referred to by the respondent, including the CNRs of Ross Memorial Hospital dated March 3, 2020, and the CNRs of the applicant’s family doctor, Dr. Nayana Suchak, from 2017 to December 2021, which include reports from the applicant’s rheumatologist, Dr. Jody Lewtas.

11The respondent argues that the applicant has not met her onus to prove that she has chronic pain as a result of the accident, because it is not supported by the contemporaneous medical evidence in the year following the accident, and the applicant was not diagnosed with chronic pain in the 4 years after the accident. The respondent further argues that the applicant had been treated for psoriatic arthritis since 2017. The respondent further submits that the reports of Dr. Rod, Ms. Tennen and Dr. Winsor were all written more than 4 years after the accident, and after the applicant was hospitalized for meningitis and septic arthritis in February 2024, and therefore these reports should be assigned little weight.

12I accept that the applicant has experienced ongoing knee and hip pain after the accident, however I find that the evidence does not establish on a balance of probabilities that the applicant experienced chronic pain with functional impairment as a result of her accident-related injuries. The medical evidence submitted by the respondent reveals that the applicant attended the Ross Memorial Hospital emergency department after the accident and complained of ankle and shin pain. She was sent for x-ray imaging and was diagnosed with a sprain to her ankle and discharged with crutches.

13The respondent argues that the applicant’s actions are not consistent with “urgent or disabling impairments” because the applicant did not begin physiotherapy until January 21, 2021, more than ten months after the accident, and did not submit the Disability Certificate (“OCF-3”) dated February 16, 2021 until May 29, 2021, more than a year after the accident.

14The CNRs of the applicant’s family doctor, Dr. Suchak, reveal that the applicant complained of knee and ankle pain, and eventually hip pain, on 5 occasions in the 18 months following the accident. Although, Dr. Lewtas stated in a letter to the respondent on September 24, 2024 that the applicant’s hip and leg pain “definitely began the day after the accident,” there is no evidence before me that the applicant complained of hip pain prior to a July 14, 2024 telephone consultation with Dr. Lewtas, four months after the accident. Dr Suchak first references hip pain in her CNRs on February 1, 2021, more than ten months after the accident.

15In the OCF-3. Dr. Suchak indicated that the applicant had soft tissue injuries to her ankle, knee, and hip, and had difficulty driving, but that she had returned to work, and was able to work from home. Dr. Suchak also indicated that the applicant had a substantial inability to complete her household chores. There is no evidence before me that the applicant complained to her family doctor of pain again until seven months later on September 21, 2021.

16The applicant submits that Dr. Rod’s April 29, 2024 s. 25 chronic pain assessment report establishes that the applicant has chronic pain with functional impairment that meets the threshold for her removal from the MIG. The respondent argues that I should assign little weight to Dr. Rod’s report because it took place more than four years after the accident, and Dr. Rod did not review any of the applicant’s medical records.

17However, the April 19, 2024 report reveals that Dr. Rod reviewed the applicant’s medical records and summarized a total of ten ”relevant” records, from the applicant’s family physician, rheumatologist, physiotherapist, and hospital records between March 31, 2017 and June 12, 2023. These records included CNRs for physiotherapy treatment for back pain in 2022, which was attributed to childcare. Dr. Rod did not include summaries of any records from the applicant’s more recent hospital stay for meningitis and septic arthritis, or any other records from the 10 months preceding his assessment.

18In his report, Dr. Rod diagnosed the applicant with chronic pain and opined that the applicant was moderately limited and substantially disabled, and noted a decline in her functional status. I find that Dr. Rod’s report sheds little light on the applicant’s pain resulting from her accident-related injuries, in part because while Dr. Rod opined that “the list of conditions and their apparent severity are consistent with the mechanism of the accident,” he diagnosed the applicant with pain in multiple locations including her head, neck, shoulder, wrist, and upper back, which were not among the sprain and strain injuries to her knee and ankle diagnosed at the time of the accident, or in the OCF-3 a year later. Further, Dr. Rod did not mention the applicant’s psoriatic arthritis or that she was off work at the time of the assessment recovering from meningitis and septic arthritis.

19For these reasons, I assign little weight to Dr. Rod’s April 29, 2024 report.

20The applicant requests that I assign significant weight to Ms. Tennen’s April 16, 2024 s.25 future cost of care report, because it clearly identifies the applicant’s functional impairment.

21The respondent argues that the report should be assigned little weight because Ms. Tennen’s assessment was conducted by videoconference and relies on the applicant’s self-reports with respect to the course of her symptoms and function. The respondent further argues that the report’s recommendations for future care are related to the applicant’s recovery from meningitis and septic arthritis.

22I am not persuaded that Ms. Tennen’s report reflects that the applicant has functional impairment associated with accident-related chronic pain. The April 16, 2024 report sets out a chart which outlines the applicant’s pre-accident, post-accident, and current function, which indicates a significant deterioration in the applicant’s function after her February 2024 hospitalization. The applicant’s reports of functional limitation post-accident indicate that the applicant was independent in her personal care, working full time, and could walk one kilometer. The chart indicates that apart from changing bed linens, which her husband performed, and laundry, which they shared, the applicant maintained the same housekeeping responsibilities as prior to the accident. Further, the chart is silent on the effects of the impact of psoriatic arthritis, or the back pain the applicant attributed to caring for her grandchildren, neither of which are accident-related.

23Further, as the respondent notes, the recommendations for future care address the applicant’s function at the date of the report, which was significantly impacted by her recent hospitalization for meningitis and septic arthritis.

24I also assign little weight to the March 3, 2025 occupational health physician consultation report of Dr. Winsor, which is dated five years after the accident. Dr. Winsor opined that the applicant has long-term medical limitations, including difficulty driving for sustained periods. Dr. Winsor based his opinion on interviews with the applicant’s physician and physiotherapist, who told him that the applicant’s condition had improved but that the applicant should be limited to 30 minutes of driving because of her impairment. He opined that the applicant had a long term medical impairment, a “secondary injury” in 2020, with “some residual impairment,” and attributed the applicant’s residual impairment in her right leg to her 2024 “primary medical impairment,” In my view, the lack of detail in Dr. Winsor’s report is appropriate for the human resources purpose for which it was written, but it is not sufficiently clear or detailed to support a finding of chronic pain with functional impairment as a result of the accident.

25Overall, 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 the accident.

26The applicant remains within the MIG.

27As I have found that the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

29The 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 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.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

30As the applicant has not made submissions that the respondent’s conduct has met the bar set out above, and I have found that no payments have been unreasonably denied or withheld, I find that the applicant is not entitled to an award.

ORDER

31I find that:

1. The applicant is subject to the MIG and its $3,500.00 funding limit
2. As I have found that the applicant is subject to the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
3. As no payments are owing, no interest is due.
4. The applicant is not entitled to an award.
5. The application is dismissed.