Category: Minor Injury Guideline

Phan v. Security National Insurance Company (20-011925)

The claimant brought an initial application where the LAT held that her impairments were predominantly minor, that she was subject to the MIG, and denied her claim for six treatment plans because her MIG limits were exhausted. The claimant brought a subsequent application seeking entitlement to nine treatment plans and assessments. The insurer brought a preliminary motion to dismiss the claim on the grounds of res judicata. Vice Chair Flude found that the claimant failed to bring forward evidence of recent deterioration in her condition that resulted in her impairments no longer being the result of predominantly minor injuries. The only new evidence that was provided by the claimant involved complaints of back pain, but which did not tie that complaint to impairments sustained in the accident. Vice Chair Flude refused to consider imaging reports relied on by the claimant during oral submissions, as these reports were previously available for disclosure in the first hearing and no reason was provided as to why it was not disclosed at that time. As such, Vice Chair Flude held that res judicata applied to bar her claim.

Galang v. Coseco Insurance Company (20-008382)

The claimant was injured in an accident on April 30, 2018. She sought entitlement to various treatment plans, including a chiropractic treatment plan submitted on May 15, 2018, and a physiotherapy treatment plan submitted on July 19, 2018. The insurer denied the claimant’s chiropractor treatment plan and partially approved the physiotherapy plan. The claimant was removed from the MIG on August 24, 2018. Adjudicator Deol held that the claimant was not entitled to the denied chiropractic treatment plan as it was properly denied under s. 38(5) of the Schedule, as the insurer was entitled to refuse a non-MIG treatment plan while the claimant was still within the MIG. In rejecting the claimant’s treatment plan for chiropractor treatment, the insurer clearly advised the claimant that their OCF-18 was being denied pursuant to ss. 38(5) and 38(6). However, Adjudicator Deol held that the insurer’s denial of the claimant’s physiotherapy treatment plan was not valid pursuant to s. 38(5). The insurer did not “refuse to accept” the disputed OCF-18, as it partially approved the OCF-18 and the denial letter did not reference ss. 38(5) and 38(6).

Pham v. Coseco Insurance Company (20-004749)

The claimant commenced two applications for treatment and assessment plans. The first application dealt with certain disputed treatment and assessment plans, and the Insurer’s determination that the claimant sustained a minor injury. The second application concerned the claimant’s chronic pain treatment plan. A motion decision ordered that the decision rendered in the first application regarding the MIG would apply to the second application. In the first application, the Tribunal held that the claimant fell within the MIG. For the second application, the claimant argued that she was entitled to the treatment plan because the insurer failed to respond in accordance with s. 38 of the SABS, and that the treatment was reasonable and necessary. The insurer argued that the Tribunal had already held the Plaintiff was subject to the MIG, the claimant’s fresh evidence did not impeach the original decision, and thus not entitled to the chronic pain treatment plan. Adjudicator Norris agreed with the Insurer, and held that the claimant was not entitled to the disputed chronic pain treatment plan as her injuries fell within the MIG.

Kanama v. Waterloo Insurance (19-006369)

In a prior decision, the Tribunal held that the claimant’s injuries were minor, and subject to the $3,500 MIG limit. The claimant reapplied to the tribunal, seeking an income replacement benefit and entitlement to treatment plans. The claimant asserted that his condition had worsened, and provided updated medical records. The insurer argued that the applicability of the coverage limit had already been previously decided by the tribunal. Vice Chair Flude held that the claimant failed to establish a material change occurred in his condition that would change the Tribunal’s previous decision. The claimant’s records did not establish that his condition deteriorated. The claimant’s back issues were largely unchanged, the imaging studies showed no change, and the claimant’s physiatrist did not change his recommendation despite numerous visits. However, the claim for IRBs was permitted to proceed.

Pihokker v. The Personal (20-011554)

The claimant was involved in an automobile accident, and sought certain benefits that were subsequently denied by the insurer. The claimant previously applied to the Tribunal, where Adjudicator Ferguson released his decision (“the 2019 Decision”) which found that the claimant’s injuries fell within the MIG. The claimant did not seek reconsideration or judicial review of the 2019 Decision. The claimant subsequently submitted another treatment plan for chiropractor services along with updated records from his treating orthopaedic surgeon, which the insurer denied. The claimant commenced this new application before the LAT. The insurer argued that the application was subject to res judicata, as the claimant had not provided fresh evidence to impeach the Tribunal’s 2019 Decision. Adjudicator Kepman agreed with the insurer, and held that the application was barred by res judicata. The 2019 Decision held that the claimant fell within the MIG, and Adjudicator Kepman found that the new records and treatment plans would not have removed the claimant’s injury from the MIG.

Johnson v The Dominion of Canada General Insurance Company (20-001056)

The claimant was involved in a motor vehicle accident and sought benefits pursuant to the SABS. On January 24, 2019, the claimant filed a LAT application to determine whether her injuries fell within the MIG as well as her entitlement to various treatment plans. On February 4, 2020, the claimant filed a second application which again included the issue of the MIG and entitlement to additional treatment plans. On June 9, 2020, Adjudicator Johal released the decision for the first LAT application, concluding that the claimant’s injuries fell within the MIG. The claimant did not request reconsideration nor did she pursue an appeal. Adjudicator Kaur found that the claimant’s second LAT application was barred by the doctrine of res judicata. The claimant relied on additional assessment obtained after the first LAT hearing but failed to explain why this evidence was not available at the material time. Adjudicator Kaur noted that even if the reports were admissible, they were based heavily on the claimant’s self-reporting and lacked persuasive value.

F.T. v. The Co-Operators Insurance Company (19-001291)

The self-employed claimant applied to the LAT seeking entitlement to medical benefits outside of the MIG and a determination of the quantum of IRBs. The insurer had paid IRBs in the amount of $59 per week, based on its expert accounting report. The claimant sought IRBs in the amount of $400 per week, based on his own accounting report. Adjudicator Chakravarti found that the claimant was outside of the MIG as a result of a psychological injury. The claimant was not entitled to the disputed OCF-18 for chiropractic treatment and massage. Adjudicator Chakravarti noted that the only evidence before the LAT recommending chiropractic and massage treatment was the OCF-18 itself, which was not sufficient to prove that the proposed treatment was reasonable and necessary. With regards to IRB quantum, Adjudicator Chakravarti found that the claimant’s accounting report made questionable assumptions that were not in keeping with the documentary evidence. Adjudicator Chakravarti also found that there were no documents showing that alleged pre-accident gross partnership income was reported as income to the CRA and, therefore, the gross partnership income could not form part of the IRB calculation. In addition, the claimant failed to prove that alleged post-accident losses were reasonable in the circumstances and necessary to prevent a loss and/or a result of the accident. The claimant was not entitled to further IRB payments.

Bobak v. Travelers Insurance (21-004004)

The Tribunal was asked to determine whether the claimant’s injuries were within the Minor Injury Guideline, but no benefits were disputed. Prior to the case conference, the insurer filed a motion to dismiss the claim without a hearing on the basis that the subject matter of the application fell outside of the Tribunals jurisdiction. The insurer highlighted that when filing the application for the LAT, the claimant listed the MIG determination as the only issue in dispute. The insurer argued that the MIG is not a benefit. Adjudicator Lester agreed with the insurers submissions, concluding that under statutory interpretation, the Tribunal does not have jurisdiction to deal with the issue of the MIG unless a benefit is tied to it. The MIG itself is not a statutory accident benefit; it is a guide that defines a minor injury and provides the treatment framework for medical providers. Accordingly, the Tribunal does not have jurisdiction and the application was dismissed.

Villegas v. Travelers Canada (20-007827)

The claimant disputed the MIG determination and entitlement to chiropractic treatment outside of the MIG. The claimant argued that he had pain in his neck, back, and shoulder, as well as psychological symptoms that justified removal from and treatment beyond the MIG. Vice Chair Boyce dismissed the application. The physical injuries identified in the OCF-3 and medical records were soft-tissue injuries that clearly fell within the definition of a minor injury under section 3(1). Further, the claimant had not been diagnosed with a psychological impairment or been prescribed medication for his psychological complaints. As the MIG limits had been exhausted, Vice Chair Boyce did not consider whether the treatment plans in dispute were reasonable and necessary.

Villegas v. Travelers Canada (20-007827)

The claimant disputed the MIG determination and entitlement to chiropractic treatment outside of the MIG. The claimant argued that he had pain in his neck, back, and shoulder, as well as psychological symptoms that justified removal from and treatment beyond the MIG. Vice Chair Boyce dismissed the application. The physical injuries identified in the OCF-3 and medical records were soft-tissue injuries that clearly fell within the definition of a minor injury under section 3(1). Further, the claimant had not been diagnosed with a psychological impairment or been prescribed medication for his psychological complaints. As the MIG limits had been exhausted, Vice Chair Boyce did not consider whether the treatment plans in dispute were reasonable and necessary.