Licence Appeal Tribunal File Number: 24-001619/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:
Reginald Boutilier
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Alex Nikolaev, Counsel
For the Respondent:
Yuliya Yarema, Paralegal
HEARD:
In Writing
OVERVIEW
1Reginal Boutilier, the applicant, was involved in an automobile accident on August 11, 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, Economical 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 $150.00 ($1,248.50 less $1,098.50 approved) for physiotherapy services, proposed by We Care Rehab in a treatment plan/OCF-18 (“plan”) dated February 1, 2022?
iii. Is the applicant entitled to $3,253.05 for physiotherapy services, proposed by We Care Rehab in a plan dated May 12, 2022?
iv. Is the applicant entitled to $3,090.53 for physiotherapy services, proposed by We Care Rehab in a plan dated December 8, 2023?
v. Is the applicant entitled to $2,598.81 for a neurological assessment, proposed by Prime Health Care in a plan dated May 1, 2024?
vi. Is the applicant entitled to $2,486.00 for a psychiatric assessment, proposed by Injury Management & Medical Assessments in a plan dated May 10, 2024?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. The applicant has not met the onus to establish he should be removed from the MIG. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. No interest or award are payable.
ANALYSIS
Minor Injury Guideline
4The applicant has not met the onus to establish he should be removed from the MIG.
5Section 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.”
6An 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 injury or 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 lies with the applicant.
7The applicant submits he should be removed from the MIG because he has suffered a mild traumatic brain injury with persistent concussion symptoms, posttraumatic headaches / migraines, vertigo and tinnitus.
8The applicant also argues he has sustained a psychological injury, and suffers from major depressive disorder, post-traumatic stress disorder and a neurocognitive disorder.
9To support his claim the applicant relies on two s.25 reports – a Neurologists report from Neurologist Dr. Vincenzo Basile, dated June 13, 2024, and a Psychiatric report from Psychiatrist Dr. Leslie Kiraly dated July 22, 2024. The applicant also relies upon Clinical Notes and Records (‘CNRs’) from a walk-in clinic following the accident, as well as CNRs from We Care Rehab Clinic from August 2021 to June 2024.
10The applicant also filed CNRs from Queenston Walk-in clinic related to a GP visit in August 2023 with his reply submissions. The notes are handwritten and illegible, although I note they make reference to ‘RT ELBOW INJURY’.
11The respondent argues that the applicant has suffered minor sprain and strain type injuries. They rely upon a s.44 assessment conducted by GP Dr. Allan Kopyto on March 1, 2024. They also argue that the respondent has attempted to arrange additional s.44 assessments with a psychologist, but the applicant has refused to attend.
Is the applicant removed from the MIG on the basis of a concussion?
12I find the applicant has not met the onus to demonstrate he should be removed from the MIG based on a concussion or post-concussion symptoms.
13Upon review of the CNRs from We Care Rehab Clinic, I see a history of neck and shoulder complaints and treatment for the same. I was not directed to records indicating vertigo or other post-concussion symptoms or psychological injuries. There is an isolated reference to ‘post concussion syndrome’ on December 8, 2023 in a progress report authored by physiotherapist Nileshkumar Patel. It is unclear if Mr. Patel was offering a diagnosis or reporting what the applicant stated. Mr. Patel is a physiotherapist and therefore not qualified to diagnose a concussion.
14I put little weight on the reporting of Mr. Patel because I find that the single reference in the notes to “post concussion syndrome” is not corroborated by the preponderance of the medical evidence which indicates that the applicant experienced Musculo-skeletal injuries. In essence, the contemporaneous medical evidence provided from the time of the accident does not reference or otherwise support the claim that the applicant has suffered a concussion.
15While the onus is on the applicant to prove he should be removed from the MIG, he has not provided medical evidence that supports a finding that he has an accident-related concussion.
Does the applicant have a psychological impairment that would remove him from the MIG?
16I find the applicant has not met the onus to establish he has suffered a psychological injury.
17The applicant relies on both the Neurological Report from Dr. Basile and the Psychiatric report from Dr. Kiraly. The reports were authored in Summer 2024 – nearly three years after the date of the accident.
18The respondent submits the applicant has not attended section 44 assessments. The applicant acknowledges the non-attendance but submits that the requested s.44 appointments would have been too late for the Tribunal to consider, regardless of attendance.
19I put little weight on the reports from Dr. Basile and Dr. Kiraly because I find they are not contemporaneous to the accident.
20I have not been directed to supportive contemporaneous medical evidence which indicates the applicant has requested psychological support or complained of psychological concerns in the three years since the accident. The clinical notes and records submitted appears to indicate Musculo-skeletal concerns.
21In summary, although the applicant is claiming serious post-concussion symptoms and psychological injuries were suffered in a motor vehicle accident, I have not been provided with supportive medical evidence to support this claim. For this reason, I find the applicant has not, on a balance of probabilities, met the onus to establish removal from the MIG.
22As I have found that the applicant is being held to the MIG and confined to treatment within the $3,500 monetary limit, it is not necessary for me to consider if the treatment plans in dispute are reasonable and necessary.
Interest
23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
Award
24The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no benefits were unreasonably withheld or delayed, no award is payable.
ORDER
25The application is dismissed.
i. The applicant has not met the onus to establish removal from the MIG.
ii. As the applicant is in the MIG, it is not necessary to consider if he is entitled to the treatment plans in dispute.
iii. Interest or an award are not payable.
Released: November 12, 2025
Jeff Chatterton
Adjudicator