Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-001897/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:
Anna Garito
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Julia Zhiyuan Hou, Counsel
For the Respondent: Marcus Rozsa, Counsel
HEARD: By way of written submissions
OVERVIEW
1Anna Garito, the applicant, was involved in an automobile accident on May 3, 2022, 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 section 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 $1,275.95 for physiotherapy services, proposed by Maple Healthcare in a treatment plan/OCF-18 (“plan”) dated November 8, 2022?
iii. Is the applicant entitled to $1,275.95 for physiotherapy services, proposed by Maple Healthcare in a treatment plan dated June 20, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The parties agree the MIG limits have not been exhausted and there is $1,070.24 remaining.
RESULT
4The applicant is subject to the MIG.
5As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
6As there are no overdue benefits, the applicant is not entitled to interest.
ANALYSIS
Application of the Minor Injury Guideline
7I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.
8Section 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.”
9The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.
10The applicant submits that she has a pre-existing traumatic brain injury that prevents maximal recovery, and her accident-related injuries include a head injury, chronic neck stiffness, pain, whiplash and headaches, and that she has a functional impairment.
11The applicant relies on the clinical notes and records (“CNRs”) of Toronto Western Emergency Room, her family physician, and the neurology specialty program reports (“neurology report”).
12The respondent submits the applicant has a pre-existing injury; however, it does not prevent maximal recovery, and she does not suffer chronic pain or a functional impairment due to her accident-related injuries. The respondent relies on the CNRs of Toronto Western Emergency Room, the family physician, the neurology reports, and the section 44 insurer’s examination physician assessment.
Does the applicant have pre-existing conditions that prevent maximal recovery?
13I find the applicant has not met her onus in demonstrating her pre-existing injury prevents maximal recovery and warrants removal from the MIG.
14The parties agree the applicant has a pre-existing injury of mild traumatic brain injury (mTBI) as a result of a work accident. This is confirmed by a neurology report, dated October 18, 2021, prepared by Dr. Gaétan Tardif, physician specialist. At issue is whether the applicant’s mTBI prevents her from achieving maximal recovery.
15The applicant argues that her pre-existing diagnosis of an mTBI due to a work accident was aggravated by the accident and prevents maximal recovery within the MIG. She relies on the neurology reports prepared by Dr. Tardif, and the CNRs of her family doctor, Dr. Robert Ames, family physician.
16The respondent submits the applicant has not met her onus and relies on the section 44 insurer’s examination physician assessment prepared by Dr. Ahmad Belfon, physician, the family doctor CNRs, and the neurology reports prepared by Dr. Tardif.
17The applicant’s family doctor notes on May 3, 2022, the applicant suffered a “head injury” as a result of the accident. Due to her work-related mTBI, the applicant was attending the Neurology Speciality Program with Dr. Tardif. The applicant visited with Dr. Tardif a total of eight times from October 2021 to October 2023.
18On June 27, 2022, Dr. Tardif notes the applicant will be near full recovery within four to six months. In a subsequent visit on October 19, 2023, Dr. Tardif notes the applicant has “reached maximum medical recovery” and he did not opine that the applicant’s pre-existing condition precludes maximal recovery if she is kept within the MIG.
19I find the applicant has not led evidence that the pre-existing condition prevents her from achieving maximal recovery within the MIG.
20I find the applicant has not met her burden of proof to establish on a balance of probabilities that she has a pre-existing condition that prevents her from achieving maximal recovery if kept within the MIG.
Does the applicant have chronic pain with functional impairment?
21I find the applicant has not demonstrated that she suffers from a chronic pain condition that would warrant removal from the MIG.
22The applicant submits that she should be removed from the MIG because she suffers from neck stiffness resulting from her accident-related injuries. The applicant relies on her family doctor’s CNRs, the CNRs of Toronto Western Emergency Room, and the neurology reports of Dr. Tardif.
23The respondent submits the applicant has not met her onus and relies on the section 44 insurer’s examination report and the neurology reports.
24The Emergency Room CNRs dated May 3, 2022, notes the applicant complained of a head injury, “no neck pain” and “normal” CT scan results. On July 24, 2022, almost three months after the accident, her family doctor, notes “ok - c-spine motion and flexion 30°”. The applicant states the accident resulted in neck stiffness. She does not direct me to evidence of a functional impairment.
25The section 44 report prepared by Dr. Belfon notes that the applicant’s “pain persists [and] there are no objective musculoskeletal impairments that should be delaying or preventing her full recovery.” Dr. Belfon notes reduced range of motion in her neck, however, the applicant’s injuries are consistent with uncomplicated, sprain/strain to the cervical spine and lumbosacral spine.
26I find the applicant’s claim is not well supported by the neurology reports, or her family doctor’s CNRs because there is no diagnosis of chronic pain or functional impairment. In particular, Dr. Tardif notes on October 19, 2023 that she complained of “neck stiffness since MVA”, that she is functioning well, and the doctor notes there are no functional restrictions on her as a result of her accident-related injuries.
27I find the neurology reports and the section 44 report do not support the applicant’s ongoing pain is chronic pain or that it has reached a level that affects her functioning. In my view, while the applicant may have some residual accident-related pain, it is not chronic and the medical evidence confirms that the applicant does not have a functional impairment because she has resumed driving, resumed her work duties and responsibilities without modification, and she participates in a daily routine of exercise and self-care.
28I find that the applicant has not met her onus to establish chronic pain with functional limitations warranting removal from the MIG. Considering the evidence before me and with respect to the applicant’s functioning, I find that she does not suffer from chronic pain with a functional impairment that supports removal from the MIG.
29I find on a balance of probabilities that the applicant has not met her onus and is subject to the MIG.
Are the treatment plans reasonable and necessary?
30Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owed, no interest is payable.
ORDER
32The applicant is subject to the MIG.
33As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
34As there are no overdue benefits, the applicant is not entitled to interest.
35The application is dismissed.
Released: November 27, 2025
Aric Bhargava
Adjudicator