Licence Appeal Tribunal File Number: 24-006861/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:
Daniella Haroon
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Raymond Selbie
APPEARANCES:
For the Applicant:
Neisha Moses, Paralegal
For the Respondent:
Lisa Armstrong, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Daniella Haroon, the applicant, was involved in an automobile accident on August 19, 2019, 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, Insurer, 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? Note: The parties agree the MIG limits have not been exhausted and that $936.44 remain at present.
ii. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Prime Health Care Inc. in a treatment plan/OCF/18 (“plan”) dated February 7, 2024?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant sustained physical and psychological impairment that exceeds the definition of a minor injury as found in the Schedule.
4I find that the applicant is entitled to $2,200.00 for a psychological assessment proposed by Prime Health Care Inc. in a treatment plan/OCF/18 (“plan”) dated February 7, 2024.
5I find that the respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
6I find that the applicant is entitled to interest on any overdue payment of benefit.
ANALYSIS
The Minor Injury Guideline (MIG)
7I find that the applicant sustained chronic pain and psychological impairment requiring treatment that exceeds the definition of a minor injury as found in the Schedule.
8The MIG establishes a framework available to injured persons who sustained a minor injury as 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, a contusion abrasion, laceration, subluxation, and includes any clinically associated sequelae to such injury’.
9Section 18 (1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can just demonstrate with compelling evidence that a pre-existing condition, documented by a medical practitioner, prevents maximum recovery of any accident-related minor injury under the MIG or if they can provide evidence of a non-minor injury, such as a psychological impairment or chronic pain with a fundamental impairment. The burden to establish entitlement to coverage beyond the $3,500.00 cap rests on the applicant on the balance of probabilities.
10The applicant submits that she has sustained an injury that results in chronic pain and psychological impairment that do not constitute ‘minor injuries’ per s. 3(1) of the Schedule and therefore she should be removed from the MIG.
11The applicant submits that she suffers chronic pain and psychological symptoms. The history of medical attendances is as follows;
i. Immediately after the accident, the applicant attended at the emergency department of Etobicoke General Hospital complaining of physical injuries and was noted as being anxious;
ii. On September 12, 2019, the applicant attended