Category: Minor Injury Guideline

Co-operators Insurance Company v. Bennett (2024 ONSC 467)

The insurer appealed the Tribunal’s decision that the claimant was entitled to an attendant care assessment due to having pre-existing conditions, despite suffering only minor injuries. The insurer argued that the minor injury bar still applied to attendant care benefits and assessments for persons with pre-existing conditions who were not subject to the $3,500 MIG limit. The Court dismissed the appeal, holding that the Tribunal correctly determined that a person with pre-existing conditions could receive attendant care benefits and an assessment. The insurer’s argument was held to be too focused on single words and phrases in the SABS, rather than focusing on the entire structure of the SABS.

Krzweski v. CUMIS General Insurance Company (20-013665)

The claimant disputed entitlement to a chronic pain assessment and a psychological assessment. The claimant argued that in denying these plans, the insurer did not specify a medical basis for the denial or request further medical documentation from the claimant. The claimant further contended that the insurer failed to provide a medical ground for maintaining the MIG designation of the claimant, and that, regardless of whether the proposed treatment plans were deemed reasonable and necessary, sections 38(8) and 38(11) of the SABS preclude the insurer from maintaining such designation. The insurer argued that, contrary to section 33.1(1) of the SABS, the claimant failed to provide her family doctor’s CNRs in support of her proposed OCF-18s as requested until approximately two years after the accident. Furthermore, the insurer submitted that sections 38(8) and 38(11) of the SABS were fulfilled by its request for the CNRs. Adjudicator Roswell preferred the insurer’s argument, holding that insurers have the right to reject treatment and assessment plans during the time when a claimant is eligible for goods and services under the MIG where the claimant submits requested medical information past the deadline specified in the SABS and does not exhaust the MIG. A medical basis is only a prerequisite for an insurer’s denial of proposed OCF-18s where the relevant medical records are produced by the claimant in the time frame prescribed by 33.1(1) of the SABS, which the claimant failed to do. Adjudicator Roswell also noted that, under s.38(6) of the SABS, the insurer’s decision to refuse a treatment and assessment plan under s. 38(5) is final and cannot be reviewed. Therefore, Adjudicator Roswell found that the insurer’s denial notice was sufficient. In addition, Adjudicator Roswell held that the claimant’s pre-existing psychological conditions, evidenced in the CNRs, constituted evidence sufficient to remove the claimant from the MIG.

Amalathasan v. Certas Home and Auto Insurance Company (21-006393)

The claimant applied to the LAT for entitlement to medical benefits outside of the MIG. Adjudicator Cavdar found that the issue of whether the claimant sustained predominantly minor injuries was already determined by the LAT in a 2020 decision and was, therefore, res judicata. Accordingly, the claimant remained in the MIG and was not entitled to the treatment plans in dispute.

Sagastume v. Allstate Insurance Company of Canada (20-014755)

The claimant disputed entitlement to ACBs and medical benefits that were denied because the claimant was within the MIG. The Tribunal found that the claimant failed to demonstrate that his injuries warranted removal from the MIG. The Tribunal rejected the argument that an insurer is required to re-schedule an IE within 10 days of an applicant agreeing to re-attend same and held that IEs are not mandatory. The claimant was not entitled to the disputed benefits.

Shaikh v. Economical Insurance Company (20-009837/AABS)

The claimant brought a LAT application to dispute NEBs and his MIG designation. Adjudicator Flude found that the claimant was not entitled to NEBs because he had failed to submit a signed application for NEBs until June 8, 2020, approximately a year after the accident of July 16, 2019. Adjudicator Flude confirmed that an application for NEBs could not be considered complete until a signed OCF-3 has been submitted. The claimant was found to be ineligible for NEBs in the period following the submission of his application because he failed to respond to a s. 33 request issued by the insurer. Adjudicator Flude also found that the claimant’s injuries fell within the MIG. The claimant had failed to report his significant pre-accident history with his medical examiners, which rendered their diagnoses regarding his impairments unreliable. The Adjudicator noted that the claimant’s medical records reflected an improvement of his symptoms from July 2019 to November 2019. He drew an adverse inference from the claimant’s failure to produce further medical records after November 2019 and opined that the records would have reflected an improvement of the claimant’s symptoms. Adjudicator Flude concluded that the claimant did not suffer from chronic pain syndrome as a result of the accident and that his injuries were minor in nature.

Prillo v. Coseco Insurance Company (20-014401/AABS-R)

The claimant filed a request for reconsideration arising from an October 14, 2022 decision, in which Adjudicator Pahuta ruled that the claimant sustained “minor injuries” and was not entitled to further treatment outside of the MIG. The claimant filed for reconsideration under Rule 18.2 (b), alleging that Adjudicator Pahuta made an error of law or fact. The claimant also argued that they suffered from chronic pain, which would remove them from the MIG. Adjudicator Pahuta noted that the claimant’s evidence was considered in full, including the chronic pain report of Dr. Robertus, which was weighed against the overall medical evidence and family doctor records showing only minor pain complaints post-accident, with most entries being for unrelated issues. The claimant made several other allegations, including that pre-accident back pain and osteoporosis would have resulted in a MIG removal, an OCF-3 was not properly considered, and that the disputed OCF-18s were not properly viewed for necessity. Adjudicator Pahuta noted that many of these arguments were not made in the original submissions, and it appeared that the claimant was attempting to re-litigate the original issues by way of making alternative arguments not originally made at the hearing. While all of the issues brought up by the claimant were considered, the same issues were now being re-argued with several new and alternative arguments being introduced. As the claimant’s evidence related to issues already fully considered and addressed in the original decision, the request for reconsideration was denied.

Bennett v. The Co-operators (20-014453/AABS)

The claimant filed a LAT Application disputing several OCF-18s with interest. A special award was also claimed. The claimant argued that her worsening pre-accident fibromyalgia had resulted in numerous falls prior to the accident which required physical treatment. The main issue was payment of an OCF-18 for an attendant care assessment. The assessment had been incurred and a Form 1 recommending $1,231.30 in attendant care had been submitted. The Co-operators denied the OCF-18. The Co-operators argument involved s. 25 and s. 14. They argued that the claimant’s issues and injuries were not as a result of the accident, and while she had in fact been removed from the MIG due to her pre-exisiting conditions, the attendant care assessment would not be payable as any injury was pre-existing and not “as a result of the accident”, which would not allow access to attendant care. Furthermore, they argued that under s. 18(2), the claimant would only be removed from the cap on MR funding, and that under s. 25(2) or s. 14, this would not establish entitlement to an attendant care assessment solely based on a pre-existing condition. Adjudicator Grant disagreed, noting that the Co-operators appeared to be conflating the intentions of s. 25 and s. 14 in order to split impairments from access to funding. He further noted that a plain reading of s. 14(2) showed that once the insured had received notice of removal from the MIG, it was final and complete — there was no “partial removal”. Adjudicator Grant found the occupational therapy report submitted by the claimant to be persuasive compared to her medicals, and ruled that the OCF-18 and resulting report were reasonable and necessary in order to establish her post-accident level of functioning.

Liu v. Certas Direct Insurance Company (20-012975/AABS)

The claimant disputed entitlement to NEBs, several treatment plans, and whether her injuries fell under the MIG. Adjudicator Maedel found that the claimant’s injuries fell outside of the MIG due to psychological impairments. Despite the insurer’s arguments that the claimant’s psychological report was based entirely on subjective reporting and not on contemporaneous medical records, Adjudicator Maedel relied on the claimant’s report because the insurer did not have a report to respond to the claimant’s report. The claim for NEBs was rejected because the claimant failed to produce evidence regarding her pre-accident lifestyle to establish how she suffered a complete inability to carry on a normal life. The disputed chiropractic treatment plan was rejected because the claimant failed to produce medical evidence to support that the treatment was reasonable and necessary. Finally, Adjudicator Maedel found that the psychological assessment was reasonable and necessary based on his finding that the claimant suffered from psychological impairments.

Rosoli v. Aviva General Insurance (21-009076)

The claimant had previously filed a LAT Application in 2018 disputing IRBs and several treatment plans. The Application proceeded to a hearing and was dismissed. The claimant did not request a reconsideration of the decision nor did she pursue an appeal. On July 9, 2021, the claimant filed a second LAT Application disputing IRBs, the MIG and several treatment plans. The insurer argued that the claimant’s application for benefits was barred due to res judicata based on her prior LAT Application regarding the same accident, which was previously dismissed at a hearing. The insurer noted that while the disputed treatment plans for the current Application had different dates on them, they were for the exact same services that were addressed in the prior Decision. The insurer argued that res judicata would prevent the claimant from bringing multiple claims for the same relief simply by changing the grounds (or date) on which the claim was made. The claimant argued that the treatments plans were in fact new issues, and that medical evidence showed she required updated treatments as she had yet to reach maximal medical recovery and required additional treatment. Adjudicator Kaur opined that res judicata had been met. A review of the medical records indicated no additional evidence that would warrant avoiding the application of res judicata, in fact, the new records indicated that the claimant had reached maximal medical recovery and that no further treatment was warranted. Adjudicator Kaur dismissed the Application.

McKay v. Travelers Insurance (20-008456)

The claimant brought an initial application in which the sole issue being raised was whether her injuries fell under the MIG. Adjudicator Watt found that the LAT did not have jurisdiction under the SABS to determine the issue of MIG in in the absence of any specific treatment plan(s) in dispute. Adjudicator Watt stated that a MIG designation did not constitute a guarantee or refusal for payment of a treatment plan. Rather, the MIG permitted a claimant to apply for benefits within its prescribed limits. Adjudicator Watt noted that the LAT could only determine the applicability of the MIG in conjunction with the reasonableness and necessity of a disputed benefit. The claimant’s application was dismissed for a lack of jurisdiction.