Licence Appeal Tribunal
Tribunal File Number: 18-002321/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits
Between:
M.S. Applicant
and
Unifund Assurance Company Respondent
DECISION
ADJUDICATOR: Craig Mazerolle
APPEARANCES:
For the Applicant: Mireille Dahab, Counsel For the Respondent: Ken Yip, Counsel
Held by In-Person Hearing: January 30, 2019
OVERVIEW
1The applicant was injured in a motor vehicle accident on August 3, 2016. To assist in her recovery, she applied for medical benefits payable under the Statutory Accident Benefits Schedule (the “Schedule”).1 When the respondent decided to restrict her treatment to the $3,500.00 funding limit under the Minor Injury Guideline (the “MIG”), she applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
2In addition to physiotherapy services, the applicant is requesting two temporomandibular joint (“TMJ”) assessments and a psychological assessment.
3For the following reasons, I find that the applicant is subject to the funding limit of the MIG. The respondent is to pay any remaining amounts left under the MIG limit to cover expenses incurred by the applicant from the physiotherapy services treatment plan.
4The applicant is not entitled to an award.
MINOR INJURY GUIDELINE
5Entitlement to medical benefits is determined by ss. 14 and 15 of the Schedule. Briefly, the applicant has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of injuries caused by the accident.
6In the present case, the applicant also has the onus of demonstrating that her injuries do not fall within the funding limit of the MIG. That is, if an insured person has only suffered a “minor injury” as a result of an accident, s. 18(1) of the Schedule places a $3,500.00 limit on treatment coverage. As of November 15, 2018, the respondent has paid the applicant $3,034.03 in medical and rehabilitation benefits.
7The main means of removal from the application of the MIG is when an insured person demonstrates that they sustained an impairment that is not “predominantly a minor injury”. A “minor injury” is defined in the Schedule as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. Psychological impairments are not captured under this definition.
8Further, s. 18(2) states that the MIG will not apply if an applicant can demonstrate that they suffered from a pre-accident, medical condition that will “prevent [them] from achieving maximal recovery from the minor injury if… subject to the $3,500 limit”. This pre-existing condition must have been documented before the accident, and there must be compelling evidence that it will prevent maximal recovery.
PARTIES’ POSITIONS
9The applicant submitted that she suffers from severe psychological symptoms as a result of the accident, particularly driving-related phobia