Category: Minor Injury Guideline

Shpati v. Travelers Canada (19-008988)

The claimant disputed the insurer’s determination that her injuries fell within the MIG, as well as her entitlement to various medical/rehabilitation benefits. The claimant made no submissions and made no reference to any evidence of a non-MIG injury, but rather made a broad claim that all of the insurer’s denials failed to comply with section 38 of the SABS. Adjudicator Norris dismissed the application, as the claimant failed to make a direct reference to any specific denial or document to support her position. He went on to note that in any event, the claimant had not proven that she incurred the goods and services in dispute, which she was required to do if she wished to claim entitlement due to the insurer’s failure to comply with section 38.

Abou Hussini v. Travelers Insurance (19-002005)

The claimant sought entitlement to IRBs, removal from the MIG, and various medical benefits. Adjudicator Reilly dismissed all the claims. She held the claimant failed to prove that his accident-related injuries were non-minor, or that she suffered a pre-existing condition that would prevent maximal recovery under the MIG. She found that the allegations of chronic pain, concussion, and psychological impairment were not proven. Similarly, Adjudicator Reilly held that the claimant did not suffer a substantial inability to complete the tasks of his pre-accident employment. The claimant continued to work as an Uber driver for almost one year after the accident. He also started a new business during COVID.

Nelson v. Travelers Insurance Company of Canada (19-012673)

The claimant sought entitlement to ongoing IRBs, removal from the MIG, and four treatment plans for physiotherapy and two assessments. Vice Chair McGee dismissed the claims. She held that the claimant failed to prove that she suffered from a non-minor injury. Her alleged chronic pain was not serious enough to qualify as non-minor. The claimant did not use medications, she returned to college within a few months of the accident, and she was largely independent with personal tasks and chores. The claimant also did not meet the IRB disability test. She returned to college shortly after the accident after quitting her job so that she could upgrade her credentials. She planned on returning to college before the accident occurred. The claimant did not look for a job while in college because she did not believe she could handle both a job and her studies. After graduating from college, the claimant’s inability to find employment was due to COVID rather than any physical impairment. Finally, Vice Chair McGee held that even if the claimant met the IRB disability test, she would not be entitled to claim IRBs until her completed election was submitted, as the OCF-3 supported both IRB and NEB.

F.C. v. Aviva General Insurance (19-003936)

The claimant disputed her MIG determination and her entitlement to medical benefits. In regard to the MIG, Adjudicator Moten found the claimant’s prior injury to her coccygeal region prevented maximal recovery if she were limited to the $3,500 minor injury limits. Adjudicator Moten also found there was compelling evidence in the claimant’s health practitioners’ medical records to support that her pre-existing injury prevented from reaching maximum recovery under the MIG even though none of the evidence explicitly stated that conclusion. In regard to the disputed treatment plans for chiropractic treatment, Adjudicator Moten determined the claimant had satisfied her onus the proposed treatment was reasonable and necessary and she was entitled to payment of those treatment plans along with interest. However, Adjudicator Moten found the claimant had not shown the treatment plan for a psychological assessment was reasonable and necessary.

C.P. v Aviva Insurance Canada (18-004460)

The claimant applied to the LAT seeking a determination that his accident-related impairments were outside of the MIG and entitlement to two treatment plans for medical benefits. A hearing was held in August 2019. Several months later, the LAT was informed that the claimant had passed away. At a subsequent teleconference hearing, the insurer argued that the claimant’s passing rendered the LAT proceeding moot. The deceased claimant’s estate argued that it required a decision on the interest in dispute, and that a decision from the LAT would assist the claimant’s estate in pursuing a tort claim. Adjudicator Mazerolle found that the question of MIG determination was not moot as it was possible that the LAT could find that benefits in dispute were deemed incurred pursuant to s. 3(8) of the SABS. Adjudicator Mazerolle then found that the claimant was within the MIG, and the benefits in dispute were not deemed incurred. The interest in dispute was found not payable, as there was no OCF-21 detailing incurred services and no other evidence that a payable amount was overdue.

Thomas v. Coseco Insurance Company (20-001397)

The claimant applied to the LAT seeking a determination that her accident-related impairments were outside of the MIG and entitlement to psychological and chronic pain assessments. The insurer argued the claimant was barred from proceeding with the application for MIG determination as the issue had already been adjudicated and decided by the LAT in a previous application. Adjudicator Lake found that the doctrine of res judicata applied, and the claimant was barred from seeking a determination on whether her impairments were outside of the MIG. The application was dismissed.

Jeevakumaran v. Unifund (20-001025)

The claimant sought to be removed from the MIG and entitlement to medical benefits. Adjudicator Mazerolle concluded that the claimant established that he suffered from an accident-related psychological impairment. As such, he was no longer held to the funding and treatment limits of the MIG and s. 18(1) of the Schedule. Adjudicator Mazerolle found that the totality of the records established that psychological symptomology had affected some aspects of the claimant’s daily life. The medical benefits at issue were a psychological assessment, psychological services, and physical therapy. While Adjudicator Mazerolle accepted that the claimant suffered from a psychological impairment, he did not find that the proposed psychological services were payable, due to s. 47(2) of the Schedule. Once the insurer introduced the possibility of the claimant accessing publicly funded therapy through OHIP, the onus shifted to the claimant to rebut this proposition. What is more, the insurer supported this assertion by filing an information sheet from the Centre for Addiction and Mental Health (CAMH) that listed a number of publicly funded clinics and service providers—evidence that this treatment was (in the words of s. 47(2)) “reasonably available to the insured person”. However, Adjudicator Mazerolle could not draw the same conclusion about s. 47(2) for the psychological assessment, as there is no indication whether a similar service was “reasonably available” to be paid through OHIP. Therefore, Adjudicator Mazerolle found the psychological assessment to be payable by the insurer. Finally, Adjudicator Mazerolle was not satisfied that the physical therapy services were necessary for the claimant’s recovery as there was evidence that physical therapy was no longer assisting the claimant with his accident-related impairments.

Ramlal v. Aviva General Insurance (19-011325)

The claimant sought to be removed from the MIG and sought entitlement to three treatment plans and the cost of an orthopaedic assessment. Adjudicator Hines concluded that the claimant sustained a minor injury, but was entitled to payment for the disputed treatment plans if they had been incurred prior to receiving proper notice from the insurer denying the benefits. Adjudicator Hines found that the insurer failed to provide adequate medical and other reasons for denying the treatment plans because the insurer’s denial of the treatment plans failed to refer to the claimant’s medical condition. Further, the notices did not state that the MIG applied, which is mandatory under section 38(9). In addition, the insurer failed to reference any medical records that it had received or to request additional medical records. Finally, Adjudicator Hines agreed with the arbitrator’s interpretation in Ferawana v. State Farm, that whether the treatment plans are reasonable and necessary is irrelevant to whether the mandatory payment consequence of section 38(11)(2) applies. Adjudicator Hines also agreed that nothing in the Schedule relieves an insurer of its liability from the mandatory payment provision on the basis that a treatment plan is not reasonable and necessary.

C.E. v. Aviva General Insurance Company (18-002591)

This is a reconsideration decision. The hearing decision found that the claimant sustained minor injuries and was subject to the MIG. The claimant requested reconsideration of the hearing decision based on new evidence that was not before the Tribunal at the time of the written hearing and which, he submitted, would likely have affected the result. The claimant also submitted that the LAT erred in law by failing to request the claimant’s medical records from his treating psychiatrist. The request for reconsideration was dismissed. The claimant did not file the “new” evidence with the request for reconsideration (the records had been requested but not received by the claimant). In addition to noting the new evidence had not been filed and was therefore not available for consideration by the LAT, Adjudicator Neilson found that the claimant did not satisfy his onus to show that the psychiatrist’s records could not have reasonably been obtained before the hearing. Adjudicator Neilson found that applicants to the Tribunal are obligated to make their own case, and the Tribunal did not make an error in law by not requesting the psychiatrist’s records prior to making a hearing decision. Adjudicator Neilson held that a reconsideration is not an opportunity to re-argue a case.

Namasivayam v. Certas Direct Insurance Company (19-010862)

This was the claimant’s second LAT dispute. The claimant sought entitlement to NEBs, removal from the MIG, and various medical benefits. The insurer argued that the claimant could not re-litigate the applicability of the MIG. Adjudicator Farlam agreed with the insurer that the applicability of the MIG was res judicata and that the claimant could not seek the same relief that had been denied in the first hearing. Most of the claimant’s arguments were an attempt to re-litigate the same claim on the same facts. The claimant did not seek reconsideration or judicial review of the earlier decision, so it was a final judgment. This second LAT dispute was not to be used as a reconsideration or judicial review. All of the submissions that the claimant made in this dispute had already been considered in the earlier dispute. Because the MIG could not be re-litigated, the disputed treatment plans were also dismissed. Adjudicator Farlam denied the claim for NEBs. She held that the evidence showed the claimant remained able to complete housekeeping chores, was independent in personal care, and cared for her young child on her own. The claimant failed to put forward reliable medical evidence that she was prevented from carrying on a normal life.