Licence Appeal Tribunal File Number: 24-006288/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:
Nicole Hutchinson
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
VICE-CHAIR:
Henry Harris
APPEARANCES:
For the Applicant:
Michelle Arzaga, Counsel
For the Respondent:
Farzana Merchant, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Nicole Hutchinson (the “applicant”) was involved in an automobile accident on June 15, 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 Belair Insurance Company Inc. (the “respondent”) 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 $87.19 ($1,241.45 less $1,154.26 approved) for chiropractic services, proposed by Healthbound Health Network in a treatment plan/OCF-18 (“plan”) submitted December 5, 2022, and partially denied February 15, 2023?
iii. Is the applicant entitled to $2,073.51 ($2,750.97 less $677.46 approved) for chiropractic services, proposed by Healthbound Health Network in a plan submitted November 10, 2023, and partially denied November 27, 2023?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Healthbound Health Network in a plan dated February 14, 2023, and denied March 1, 2023?
v. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by Excel Medical Diagnostics in a plan submitted March 15, 2024, and denied April 1, 2024?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
viii. Is the respondent entitled to costs for this proceeding?
3For issue iv above, the case conference report and order dated October 21, 2024 (the “CCRO”) refers to a plan submitted February 22, 2022. However, in reviewing the plan it is signed by the applicant on February 14, 2023, which I have reflected above.
RESULT
4The applicant remains subject to the MIG.
5As the applicant remains in the MIG, I have not considered if any of the plans in dispute are reasonable and necessary.
6The applicant is not entitled to interest or an award.
7The application is dismissed.
8The respondent is not entitled to costs.
ANALYSIS
The applicant remains within the Minor Injury Guideline (MIG)
9I find that the applicant has not established on a balance of probabilities that she suffers from an accident-related injury or condition that warrants removal from the MIG.
10Section 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.”
11An 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 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.
12In all cases, the burden of proof lies with the applicant.
13The applicant submits that she should be removed from the MIG because she:
a) suffers from chronic pain symptoms as a result of the accident; and
b) sustained accident-related psychological injuries.
a) The applicant is not removed from the MIG on the basis of chronic pain
14I find that the applicant has not proven on a balance of probabilities that she has accident-related chronic pain with functional impairment that would preclude recovery if held within the MIG.
15The applicant submits that she should be removed from the MIG due to her accident-related chronic pain symptoms. She submits that, in the days and weeks following the accident, she began to experience musculoskeletal pain, together with psychological issues.
16In support of her position, the applicant relies on the clinical notes and records (“CNRs”) of her family doctor, Dr. Margaret Glinski-Oomen, commencing August 16, 2023, the report of Dr. Adnan Methiwalla, Newmarket Pain Clinic, dated November 13, 2023 and an MRI report of the left spine dated December 30, 2023. Dr. Methiwalla diagnosed the applicant with Adjustment Disorder, with myofascial pain, mechanical low back pain, piriformis irritation syndrome, greater trochanteric bursa syndrome and chronic pain syndrome.
17The respondent counters that the applicant sustained soft-tissue sprain/strain injuries as a result of the accident, all of which fall under the definition of minor injuries in the Schedule. Further, the respondent holds that there is no evidence of chronic pain with functional impairment that would warrant the applicant’s removal from the MIG. The respondent contends that the applicant should be held within the MIG.
18The respondent relies on the s. 44 insurer’s examination (“IE”) report of Dr. Pankaj Bansal, general practitioner, dated June 17, 2024, and an addendum paper review report dated October 30, 2024. Dr. Bansal diagnosed the applicant with uncomplicated, self-resolving, soft tissue type injuries involving her low back. He concluded that the applicant’s soft-tissue injuries were minor in nature and that MIG applied. He further noted that there were no valid signs of musculoskeletal, orthopedic or neurological injury.
19I find that the applicant has not provided compelling medical evidence to show that she has accident-related chronic pain with functional impairment that would preclude recovery if held within the MIG, for the following reasons.
20While the applicant submits that “minor injury” as defined in the Schedule does not encompass chronic pain and thus chronic pain is outside of the MIG, I agree with the applicant only in part. As noted earlier, the Tribunal has determined that chronic pain with functional impairment may warrant removal from the MIG. Accident-related chronic pain alone is not enough for an applicant to be removed from the MIG; it must be accompanied by ongoing functional impairment evidenced through the impact of chronic pain on the applicant’s daily life and/or work.
21Although diagnosed with chronic pain, the applicant has not met the second part of the test of demonstrating functional impairment. She reported to Dr. Bansal that she is independent with her activities of daily living, self-care tasks and household tasks. She continues to work full-time in the same pre-accident job as a production assembly associate at Honda, installing automobile parts in an assembly line. She did not take any time off due to the accident and there was no indication of modifications or accommodations due to accident-related injuries.
22I find Dr. Bansal’s IE general practitioner report to be persuasive. Dr. Bansal found his neurological examination of the applicant was normal; she had full cervical and thoracolumbar active range of movement without any mention of pain or discomfort on examination, including bending, extension and axial twisting. He found that there were no valid signs of musculoskeletal, orthopedic or neurological injury. He also reviewed the medical imaging, including the December 31, 2023 MRI report which found mild degenerative changes at the L5-S1 without significant nerve impingement. Further, as previously noted, the applicant reported she is independent with her activities of daily living, self-care and household tasks and she did not report any functional deficit.
23Accordingly, I find that the applicant has not established on a balance of probabilities that she has accident-related chronic pain with a functional impairment to warrant removal from the MIG.
b) The applicant has not sustained psychological injuries
24I find that the applicant has not proven on a balance of probabilities that she sustained a psychological injuries due to the accident that warrants removal from the MIG.
25Psychological impairments are not included in the minor injury definition and a finding that the applicant sustained psychological impairment as a result of the accident would permit them to seek treatment outside of the MIG. An impairment is defined in s. 3(1) of the Schedule as a “loss or abnormality of a psychological, physiological or anatomical structure or function.”
26The applicant submits that she suffers from a psychological injuries as a result of the accident and, as such, should be removed from the MIG. In support of her position, the applicant relies on one of the plans in dispute, an OCF-18 dated February 14, 2023 prepared by Dr. Sharleen McDowall, psychologist, seeking funding for a psychological assessment. The applicant refers to the additional comments section of the OCF-18, in which Dr. McDowall opined that the applicant should not be subject to the MIG due to the serious and acute nature of her ongoing physical pain and psychological impairment as a direct result of the accident.
27The respondent counters that the applicant has not established that she has any psychological impairments as a direct result of the subject accident. The respondent relies on the IE report of Mr. Medhi Lotfalizadeh, psychologist, dated April 14, 2024. Mr. Lotfalizadeh opined that the applicant did not suffer from any psychological impairment as a result of the accident, and that her injuries were minor and fell within the MIG.
28I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment due to the accident. While the applicant included a treatment plan/OCF-18 as evidence, her submissions make no mention of psychological injury nor is there reference to any medical evidence to support such a claim, including the CNRs of her family doctor. I acknowledge the applicant made reference to a pre-accident history of anxiety and depression surrounding her prior pregnancies. However, there is no indication of the applicant making any post-accident complaints of psychological impairments to her family doctor or any treating practitioners. A treatment plan alone is not sufficient to satisfy the burden for removal from the MIG, and in this case, there is an absence of corroborating medical evidence in support of the applicant having an accident-related psychological impairment.
29Accordingly, for these reasons, I find that the applicant has not proven on a balance of probabilities that she sustained a psychological injury due to the accident that would warrant removal from the MIG. Therefore, I find that the applicant is subject to the MIG.
30As I have found that the applicant is not removed from the MIG, it is not necessary to engage in an analysis of whether the disputed plans are reasonable and necessary as a result of the accident.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, interest does not apply.
Award
32The 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.
33As the respondent did not unreasonably withhold or delay payment of benefits, no award is payable.
Costs
34The respondent’s request for costs is denied.
35The respondent, in its submissions, requested that the application should be dismissed, with costs. No further submissions on costs were provided. Rule 19.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) allows a party to make a request for costs in writing or orally at a hearing at any time before a decision or order is released. I have added the issue on this basis. However, Rule 19.4 states that the party submission on costs shall set out the reasons for the request and the particulars of the other party’s conduct that are alleged to be unreasonable, frivolous, vexatious, or in bad faith. As the respondent provided no such reasons or particulars, it has not met its onus, and I decline to order costs.
ORDER
36For the reasons outlined above, I find that:
a. The applicant shall remain in the MIG;
b. As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary;
c. The applicant is not entitled to interest or an award;
d. The application is dismissed; and
e. The respondent is not entitled to costs.
Released: January 30, 2026
__________________________
Henry Harris
Vice-Chair