Licence Appeal Tribunal File Number: 20-012795/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
John Fonseca
Applicant
and
Dominion of Canada General Insurance Company (Travelers)
Respondent
DECISION
ADJUDICATOR:
Amanda Marshall
APPEARANCES:
For the Applicant:
Golan Mergui, Counsel
For the Respondent:
Anna Dylewski, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant was involved in an automobile accident on May 28, 2019, and sought benefits from the respondent, Dominion of Canada General Insurance Company (“Travelers”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied the treatment plan in dispute because the respondent determined that his accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
- Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
- Is the applicant entitled to $2,460.00 for a psychological assessment recommended by 101 Assessments in a treatment plan (OCF-18) date November 8, 2019?
RESULT
3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.
ANALYSIS
Applicability of the MIG
4The Minor Injury Guideline (“MIG”) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains impairments that are predominantly a minor injury in accordance with the MIG.
6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment.
7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.1
8The applicant submits that he should be removed from the MIG as he has pre-existing issues with his back and hip as documented in the clinical notes and records from the Community Walk-in Clinic. He also submits that he experienced a post-accident psychological injury as diagnosed by Ms. Lital Grinberg, Psychotherapist.
9The respondent submits the applicant suffered sprain/strain-type injuries as a result of the accident. The respondent further submits the applicant did not provide evidence of a psychological injury that would fall outside of the minor injury definition, nor that he suffered from a pre-existing medical condition that would prevent him from achieving