Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-010588/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:
Pearl Berance
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR:
Harouna Saley Sidibé
APPEARANCES:
For the Applicant:
Adam Moftah, Counsel
For the Respondent:
Matthew Owen, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Pearl Berance, the applicant, was involved in an automobile accident on August 26, 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 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 $1,422.73 ($3,622.73 less $2,200.00 approved) for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated September 16, 2022?
iii. Is the applicant entitled to $200.50 ($1,300.50 less $1,100.00 approved) for chiropractic services, proposed by Activa Brampton in a plan dated December 8, 2022?
iv. Is the applicant entitled to $2,698.72 for chiropractic services, proposed by Activa Brampton in a plan dated January 12, 2023?
v. Is the applicant entitled to $1,505.00 for chiropractic services, proposed by Activa Brampton in a plan dated January 31, 2023?
vi. Is the applicant entitled to $2,349.60 for chiropractic services, proposed by Activa Brampton in a plan dated April 6, 2023?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons that follow, I find:
The applicant’s impairments are predominantly minor, and thus, the MIG limit applies.
As the applicant is subject to the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary.
The applicant is not entitled to interest.
The application is dismissed.
ANALYSIS
Are the applicant’s injuries minor?
4I find that the applicant’s impairments are minor soft-tissue injuries within the MIG. Therefore, she is not entitled to coverage beyond the MIG monetary limit.
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 reports ongoing low back, cervical, and shoulder pain, headaches, sleep disturbances, and functional limitations. She cites the OCF 3 (Disability Certificate) and subjective symptom lists in the disputed OCF 18s to argue that her condition is more than a minor strain/whiplash and therefore outside the MIG.
8The respondent argues that all contemporaneous medical evidence (hospital discharge, family doctor notes, and an insurer’s examination (IE)) documents only minor soft tissue injury. The applicant has no pre-existing conditions documented prior to the accident and returned quickly to full duties, including gym training and operating a catering business, as shown by social media videos.
9I find that the applicant’s injuries are predominantly minor, as the medical evidence presented to me indicates that the applicant has sustained uncomplicated soft tissue injuries.
10Firstly, the Clinical Notes and Records (“CNR”s) from Humber River Hospital diagnosed the applicant with trapezius pain, full range of motion (“ROM”), no head trauma, no neuro deficit, and no fracture. Specifically, the CNRs dated March 1, 2023, show no significant abnormalities in the applicant’s bones and soft tissues. Additionally, the addendum to the hospital consultation states that there is no tenderness in the spinal or paraspinal muscles.
11Secondly, the CNRs from the family doctor indicate a full cervical range of motion and occasional back pain attributed to gym activities, concluding that the applicant is “healthy and well with occasional back pain.”
12Lastly, the only medical report presented to me is the insurer examination report conducted by Dr. Sabrina Ming-Wai Tu, a Physician, dated August 28, 2023. I place weight on this report because its purpose is to determine, from a musculoskeletal perspective, the nature and consequences of the injuries sustained by the applicant. The report found that the applicant is overall well and has suffered from a lumbar strain due to the accident, along with uncomplicated soft tissue injuries. It concludes that the left shoulder pain began in 2023 and is unrelated to the accident.
13While I am not strictly bound by previous Tribunal decisions, I adopt the principle consistently applied in those cases: that an OCF-18, on its own, is insufficient to meet the applicant’s burden of proof without corroborating and contemporaneous medical evidence. This approach ensures that treatment plans are supported by objective medical findings, thereby strengthening the reliability of the evidence presented. Accordingly, I assign less weight to the OCF-18s submitted by the applicant.
14I also note that the applicant relies on the OCF-3 disability certificate (see para 7), and I apply the same reasoning to that form.
15Overall, I find that on a balance of probabilities, the evidence supports the conclusion that the applicant sustained a minor injury that can be treated within the MIG.
16Consequently, I find that the applicant has not discharged her onus, and her impairments are subject to the MIG.
Is the applicant entitled to the disputed treatment plans?
17Since I have determined that the applicant has not established that her accident-related impairments require treatment beyond the MIG limits, it is unnecessary for me to evaluate the reasonableness and necessity of the disputed treatment plan.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefit is payable, interest does not apply.
ORDER
19For the above reasons, it is ordered that:
The applicant’s impairments are predominantly minor, and thus, the MIG monetary limit applies.
As the applicant is subject to the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary.
The applicant is not entitled to interest.
The application is dismissed.
Released: June 2, 2025
Harouna Saley Sidibé
Adjudicator