Licence Appeal Tribunal File Number: 24-006359/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:
Frances Ann Alexander
Applicant
and
Unifund Assurance Company
Respondent
DECISION
VICE-CHAIR:
Henry Harris
APPEARANCES:
For the Applicant:
Bianca Crocetti, Paralegal
For the Respondent:
Jaskiran Gill, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Frances Ann Alexander (the “applicant”) was involved in an automobile accident on January 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 Unifund Assurance Company (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 an income replacement benefit (“IRB”) in the amount of $400.00 per week from February 1, 2022 to February 28, 2022?
iii. Is the applicant entitled to $3,498.48 for physiotherapy services, proposed by Physiocare and Wellness Clinic in a treatment plan/OCF-18 (“plan”) dated May 26, 2022?
iv. Is the applicant entitled to $1,757.00 ($3,395.00 less $1,638.00 approved) for physiotherapy services, proposed by Physiocare and Wellness Clinic in a plan dated November 9, 2022?
v. Is the applicant entitled to $3,307.58 for chiropractic services, proposed by Physiocare and Wellness Clinic in a plan dated August 28, 2023?
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?
3In her submissions, the applicant withdrew issue 6 as listed in the case conference report and order dated October 15, 2024 (the “CCRO”).
RESULT
4The applicant remains subject to the MIG.
5As the applicant remains in the MIG, I have not considered if any of the disputed plans are reasonable and necessary.
6The disputed plans are not payable pursuant to s. 38(11) of the Schedule.
7The applicant is not entitled to an IRB.
8The applicant is not entitled to interest or an award.
9The application is dismissed.
PROCEDURAL ISSUES
Exclusion of evidence
10The respondent objected to the applicant relying on the following documents as evidence, due to the applicant failing to provide such documents to the respondent:
i. Clinical notes and records (“CNRs”) of Dr. Frederick Forbes, family doctor, after May 8, 2024; and
ii. CNRs of Brampton Physiocare and Wellness Clinic (“Brampton Physiocare”).
11The respondent advises that these documents are included in the applicant’s document brief but that the applicant did not previously serve the respondent with such documents. The respondent submits that such documents should not be admitted or given any weight by the Tribunal, due to the applicant’s failure to comply with the CCR O, which required the applicant to provide the respondent with the CNRs of Dr. Forbes to the date of the case conference, October 9, 2024, by 60 days from the date of the case conference. The applicant had only provided the respondent with CNRs of Dr. Forbes up to May 8, 2024 in connection with the exchange of documents required under the CCRO. Further, the respondent argues that all CNRs of Brampton Physiocare included in the applicant’s document brief, should not be admitted due to failure to comply with the CCRO, which requires the parties to exchange all documents and things they intend to rely on as evidence at the hearing, no later than 75 days from the date of the case conference.
12The respondent submits that admitting such documents would be inherently prejudicial to it and against the principles of procedural fairness and natural justice.
13The applicant did not file a reply submission.
14Rule 9.3 states that if a party fails to comply with a direction with respect to disclosure, the party may not rely on the document as evidence without the permission of the Tribunal. Rule 3.1 also requires me to facilitate a fair, open and accessible process and to allow effective participation by all parties.
15Failure to make disclosure as required by the Tribunal frustrates the Tribunal’s ability to determine issues and the parties’ ability to make full and fair submissions. The applicant did not address such non-compliance in its submissions or make any reply submissions.
16I find that the applicant has not complied with the CCRO, as she included these documents in her document brief without previously providing them to the respondent, thus not satisfying the time periods required under the CCRO for exchange of documents as set out above by the respondent. Further, the applicant has not provided any reasons for such non-compliance. However, in considering the factors for making a determination under Rule 9.3, I find the respondent has not established that it has suffered any actual prejudice from the applicant’s non-compliance, submitting it is inherently prejudicial. The applicant, however, would potentially be significantly prejudiced if such documents forming part of her medical record were excluded from consideration by the Tribunal.
17In weighing the prejudice to the parties, the respondent’s request to exclude the documents is denied.
ANALYSIS
The applicant remains within the Minor Injury Guideline (MIG)
18I 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 or a documented pre-existing condition that precludes recovery if kept within the confines of the MIG.
19Section 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.”
20An 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.
21In all cases, the burden of proof lies with the applicant.
Pre-existing condition
22The applicant submits that she should be removed from the MIG because she suffered from chronic pain prior to the accident which has been exacerbated by the accident, and warrants her removal from and treatment beyond the MIG limit. She argues she has right shoulder pain since the accident, as well as neck and lower back pain.
23In support of her position, she relies on the June 9, 2022 OCF-3 Disability Certificate, completed by Dr. Riaz Mohammed, chiropractor (the “OCF-3”); the CNRs of Dr. Forbes, family doctor; and the CNRs of Brampton Physiocare. The applicant submits that these records detail injuries that are not predominantly minor.
24The respondent argues that the limited evidence produced by the applicant fails to provide a compelling basis to support that her injuries and/or impairments are not treatable within the MIG. The respondent relies on the following s. 44 insurer’s examination (“IE”) reports:
i. General practitioner (“GP”) report of Dr. Sabrina Ming-Wai Tu, GP, dated November 21, 2023;
ii. GP report of Dr. Saurabh Pandalai, GP, dated January 31, 2025; and
iii. Psychology report of Dr. John Lee, psychologist, dated January 7, 2025.
25I find that the applicant has not provided compelling medical evidence to show that she has a documented pre-existing condition which prevents her from recovery if she is kept within the confines of the MIG, for the following reasons.
26The evidence indicates that the applicant has pre-existing degenerative disc disease of the lumbar spine. This is confirmed by a June 24, 2024 MRI report which found chronic moderate-sized left paracentral disc herniation at L5-S1 compressing S1 nerve root. The report noted the findings were similar to a previous examination of the applicant in February 2019. In addition, the applicant points me to a referral letter for a sore throat on February 2, 2023 in which Dr. Forbes includes chronic back pain in a list of past medical history. I find that the applicant has established that she has a pre-existing condition.
27However, the applicant has not met the second part of the test in s. 18(2). She has not pointed me to compelling medical evidence that the condition precludes recovery if kept within the MIG. In the IE reports of both Dr. Tu and Dr. Pandalai, they found that while the medical history shows pre-existing degenerative disc disease, the applicant reported she was asymptomatic without pain symptoms prior to the accident. She indicated that she did not have any lower back pain for many years prior to the accident, and denied having neck, shoulder, or back pain prior to the accident. Both doctors were of the opinion that the applicant has no pre-existing conditions or concurrent medical conditions contributing to her present condition or which would prevent her from achieving maximum medical recovery.
28I find the IE reports of Dr. Tu and Dr. Pandalai to be persuasive in establishing that the applicant does not have a pre-existing condition that would prevent maximal recovery within the MIG. Section 18(2) requires there to be compelling evidence that the pre-existing condition would preclude recovery from the accident-related minor injury if kept with the MIG limits. In the present case, the applicant has not directed me to compelling medical opinion that speaks to the second part of the test.
29Accordingly, I find that the applicant has not established on a balance of probabilities that she has a documented pre-existing condition which prevents her from recovery if she is kept within the MIG.
Accident-related physical impairments
30The applicant further submits that she should be removed from the MIG due to accident-related physical impairments that she believes fall outside of the MIG. She argues that since the accident she has right shoulder pain, as well as neck and lower back pain radiating down to her legs.
31The applicant relies on the OCF-3, as well as the CNRs of Dr. Forbes and the CNRs of Brampton Physiocare. The applicant submits that these records detail injuries that are not predominantly minor.
32I find that the applicant has not established on a balance of probabilities that she suffers from an accident-related physical injury that warrants removal from the MIG. The OCF-3 documents various sprains and strains, which I find are consistent with the definition of minor injury. As well, the applicant relies on the CNRs of Dr. Forbes and Brampton Physiocare, to establish that she continued to complain of shoulder, neck and back pain. However, I do not find that these reported complains alone support removal from the MIG. As set out above, the Tribunal has established that chronic pain with a functional impairment warrants removal from the MIG, but complaints of pain are not sufficient to establish a non-minor injury.
33In addition, both Dr. Tu and Dr. Pandalai opined in their IE reports that the applicant sustained minor injuries as defined in the Schedule. They found there was no objective musculoskeletal impairments as a result of the accident, and that the musculoskeletal, accident-related injuries she sustained are most consistent with sprain/strain to the cervical spine, right shoulder and the lumbosacral spine. They found she sustained uncomplicated soft tissue injuries only as a direct result of the accident.
34I find these IE reports to be persuasive on the issue of accident-related physical impairments. Both doctors conducted in-person assessments more than one year apart from each other. The reports review the applicant’s medical history and the doctors conducted physical examinations that were consistent in their findings. As well, Dr. Pandalai noted that the applicant took approximately 6 weeks off work after the accident and returned to work without modified duties.
35Accordingly, I find that the applicant has not established on a balance of probabilities that she suffers from a physical impairment as a result of the accident that warrants removal from the MIG. Therefore, I find that the applicant is subject to the MIG.
36As 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.
37The applicant also argued that the disputed plans are payable under s. 38 of the Schedule. I will now consider this argument.
The applicant has not established that the denials were non-complaint
38I find that the applicant has not established on a balance of probabilities that any of the respondent’s denials for the plans in dispute were non-compliant with s. 38(8) of the Schedule.
39Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within 10 business days after it receives a plan which goods, services, assessments and examinations that the insurer does and does not agree to pay for. The insurer must also provide medical and other reasons why it considers any of the goods and services to not be reasonable and necessary.
40If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:
i. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies; and
ii. The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8).
41There are three plans in dispute. The applicant raised the issue that the denials for the plans in dispute were not in compliance with s. 38(8). She argues that the denials did not provide specific medical reasons why the respondent considers any of the goods and services to not be reasonable and necessary. The applicant submits that it is insufficient for the adjuster to state that based on the medical evidence provided, they believe the injuries will not fall outside of the MIG. She asserts that the statements appear to be boilerplate responses that provide an opinion of the injuries from the adjuster’s perspective rather than from a medical one.
42The respondent submits that its denials of the plans were compliant with s. 38(8). In particular, the respondent submits it relies on the IE reports of Dr. Tu and Dr. Pandalai, along with the Schedule, in support of the denials.
43In reviewing the denial letters dated June 9, 2022, November 15, 2022, September 19, 2023 and December 5, 2023, such denials specify that there is insufficient medical documentation to support removal from the MIG or persuade the respondent that the applicant’s accident-related injuries fall outside of the MIG. I find that the respondent stating that it believes the MIG applies, satisfies the requirement for providing a medical reason in the context of s. 38(8). Further, the denials advise the applicant to provide supporting documents if she believes her injuries fall outside of the MIG, with the September 19, 2923 denial letter specifically requesting the CNRs of the family doctor from January 20, 2020 to date. The December 5, 2023 denial letter attached a copy of the IE of Dr. Tu and cited Dr. Tu’s opinion that the applicant sustained minor injuries as a result of the accident in support of its denial. As such, I do not agree with the applicant’s characterization of this reasoning as “boilerplate”.
44Accordingly, I find that the denials are compliant with s. 38(8) of the Schedule.
The applicant is not entitled to an IRB
45To 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.
46In calculating the weekly amount of an IRB payable, a deduction is made under s. 7(1) for the total of all other income replacement assistance for an insured for the particular week the benefit is payable.
47The applicant submits that she is entitled to an IRB in the amount of $400.00 per week from February 1, 2022 to February 28, 2022. The applicant argues that the respondent has been provided with sufficient medical documentation supporting on a balance of probabilities that she was substantially unable to perform essential tasks of her employment as a production assembly line worker due to the injuries sustained as a result of the collision. Other than referencing an OCF-2 Employer’s Confirmation dated June 1, 2022 (the “OCF-2”), the applicant did not indicate what medical evidence she was relying on in support of her position.
48The respondent submits that it is relying on four IRB IE reports in support of the denial of IRB:
i. Neurology report of Dr. Davar Kikneshan, neurologist, dated March 29, 2023;
ii. GP report of Dr. Tu, dated February 22, 2023;
iii. Functional abilities evaluation report of Mr. Michael Drinkwater, physiotherapist, dated February 22, 2023; and
iv. Job site evaluation report of Mr. Drinkwater dated February 22, 2023.
49The respondent further argues that, should the Tribunal find the applicant is eligible to receive an IRB, its position is that she has been compensated for IRBs for the period in dispute by way of her short-term disability benefits with Sun Life Insurance.
50I find that the applicant has not satisfied her burden to establish on a balance of probabilities that she is entitled to an IRB. The applicant has not identified what medical evidence she was relying on in support of her position on IRB eligibility, other than referencing the OCF-2.
51Without submissions and evidence on the essential tasks of her employment, which tasks she is unable to perform and to what extent she is unable to perform them due to her accident-related impairments, I cannot establish entitlement under s. 5. While I note a February 18, 2022 entry in the CNRs of Dr. Forbes indicating soft tissue injuries, that modified work hours could not be accommodated and recommending she return to work on February 28, 2022, this is not sufficient to meet the legal test, and it is not the Tribunal’s role to go through a party’s evidence to make their case for them: see Dooman v. TD Insurance Company, 2025 ONSC 184 at para. 50 (Div. Ct.).
52Even if it was found that the applicant is eligible to receive an IRB, I find the correspondence with Sun Life establishes that the applicant was entitled to short-term disability benefits from Sun Life for the period in dispute, and that the elimination period was waived. In such case, the respondent would be entitled to make a deduction for such collateral benefit under the employer sponsored plan. The applicant did not make a reply submission addressing the respondent’s argument on collateral benefits.
53Accordingly, for these reasons, I find the applicant has not established entitlement to an IRB for the period in dispute.
Interest
54Interest 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
55The 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.
56As the respondent did not unreasonably withhold or delay payment of benefits, no award is payable. In addition, the applicant made no submissions on why it should be granted an award.
ORDER
57For the reasons outlined above, I find that:
i. The applicant shall remain in the MIG;
ii. As the applicant is in the MIG, it is not necessary to consider if the plans in dispute are reasonable and necessary;
iii. The plans are not payable pursuant to s. 38 of the Schedule;
iv. The applicant is not entitled to an IRB;
v. The applicant is not entitled to interest or an award; and
vi. The application is dismissed.
Released: February 5, 2026
__________________________
Henry Harris
Vice-Chair