Licence Appeal Tribunal File Number: 24-002210/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:
Richard Mcdonald
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Amar Mohammed
APPEARANCES:
For the Applicant:
Bianca Pirrotta-Iaccino, Paralegal
For the Respondent:
Jessica Telfer, Counsel
HEARD:
By Way Of Written Submissions
OVERVIEW
1Richard Mcdonald, the applicant, was involved in an automobile accident on October 26, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to the treatment plans/OCF-18s (“plans”) proposed by Alma Rehab, as follows:
a. $3,157.39 for chiropractic services submitted March 23, 2022;
b. $2,912.56 for chiropractic services submitted December 22, 2022; and
c. $2,580.54 for chiropractic services submitted June 14, 2023?
iii. Is the applicant entitled to $2,397.75 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre Inc. in a plan submitted November 23, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant withdrew the issue disputing a plan proposing $1,995.33 for a psychological assessment.
RESULT
4The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is not entitled to interest. The application is dismissed.
ANALYSIS
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 MIG limit?
5I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
7An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing medical condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof is on the applicant.
8The applicant’s position is that he should be removed from the MIG because of his chronic back pain. The applicant refers me to the clinical notes and records (“CNRs”) of Bramalea Community Health Centre. The CNR dated October 3, 2022 notes the applicant’s complaint of intermittent back pain and that he has not been going to physiotherapy. The doctor assessed chronic back pain. On May 24, 2023, it is noted that he was complaining of chronic back pain since the accident and that this was a phone-call visit. The applicant was advised to visit in-person. On June 2, 2023, it is noted that the applicant experiences back pain two to three times per week lasting an hour each time and that therapy improved his condition. Also, that the applicant missed some therapy but plans to continue going.
9The applicant has also referred me to a chiropractic assessment dated October 27, 2021, which notes decreased functional ability. This reference is from the day after the accident noting, the applicant’s affected abilities to include “sit, stand, walk, bend, lift, reach, kneel, stairs”. A question regarding barriers to recovery is answered in the positive but the recommendations to overcome barriers is left blank. In subsequent chiropractic assessments, no functional abilities are marked as being affected, barriers to recovery are still marked in the positive but recommendations to overcome barriers remain blank.
10In contrast, the respondent refers me to a December 22, 2021, CNR of Bramalea Community Health Centre marked as a follow-up visit related to the accident. It is noted that the applicant’s muscle pains resolved, he was back to driving and doing well. The respondent also refers me to a CNR dated May 16, 2022, in which the applicant rated the severity of his back pain to be 3/10. According to this note, the applicant needed one Tylenol per week at most. I give more weight to these CNRs because they are contemporaneous, contain specific details about the applicant’s pain, functional ability, and the need and frequency of medication. I find that I do not have corroborating evidence of functional impairment complaints made to the chiropractic assessor.
11The applicant also refers me to C.G. v The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT) (“CG”). The applicant relies on paragraphs 36-38 of CG to assert that a documented development of chronic pain is sufficient to fall outside the definition of a minor injury. This decision is not binding on me, and it is distinguishable. Upon review, paragraphs 36-38 were specifically addressing the question of whether a formal diagnosis of chronic pain is required which is not what this hearing turns on. In CG, the Tribunal was considering unique facts, including the issue of causation, which included evidence of the applicant’s functional impairments pre- and post-accident.
12In sum, I find that the applicant has not established that he has chronic pain with a functional impairment that would warrant removal from the MIG.
13For the reasons above, I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.
Is the applicant entitled to the plans in dispute?
14As the applicant is in the MIG, it is not necessary to assess whether the plans in dispute are reasonable and necessary.
Interest
15The applicant is not entitled to interest because there are no overdue benefits to which interest would apply pursuant to s. 51 of the Schedule.
ORDER
16For the reasons above, I make the following orders:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.
ii. As the applicant is in the MIG, is it not necessary to consider if the plans in dispute are reasonable and necessary.
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: October 29, 2025
Amar Mohammed
Adjudicator