Category: Minor Injury Guideline

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.

Marsh v. Allstate Insurance Company of Canada (20-002936)

The claimant sought removal from the MIG and entitlement to various treatment plans. The insurer argued that the claimant was barred from claiming accident benefits due to section 61 of the SABS. The claimant was employed as a personal support worker at the time of the accident, and was driving from one client to another client when the accident occurred. The claimant filed a Form 7 with the WSIB stating that she intended on making a claim through her auto insurance. The claimant submitted an OCF1 to the insurer, and did not complete a WSIB election form. Counsel for the claimant wrote to WSIB six months after the accident stating that she intended on suing the at-fault driver. A statement of claim was issued five months after that. The insurer argued that the claimant was claiming accident benefits without the primary intention of seeking damages from the third party. Adjudicator Hines rejected the insurer’s arguments, and found that the claimant did intend on pursuing a court action against the third party, and the insurer could not show that the tort claim was frivolous or invalid. Adjudicator Hines did not find the timing of the claimant’s statement of claim issuance to be suspect, as it was commenced within one year of the accident. As to the benefits in dispute, Adjudicator Hines concluded that the claimant suffered a predominantly minor injury, and dismissed the claimed medical benefits.

Abadicio v. Economical Insurance Company (20-000099)

The claimant sought removal from the MIG and entitlement to three assessments. The insurer sought repayment of $7,120 in IRBs. Adjudicator Farlam held that the claimant failed to prove that she did not suffer a minor injury. She also concluded that the insurer was entitled to repayment of IRBs. The claimant had returned to work October 25, 2017 (one month after the accident) but did not notify the insurer until early 2018. There was no evidence that the claimant communicated the return to work at an earlier date, despite having a clear duty to advise the insurer. Adjudicator Farlam concluded that the claimant willfully misrepresented his work status while continuing to collect IRBs even though he no longer met the disability test. The insurer’s notice complied with section 52 even though the initial quantum of repayment increased later as more information became available. Additionally, the one year limitation on repayment did not apply, as the claimant made a willful misrepresentation regarding work status.