Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-010748/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:
Esther Cooper
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Robert Marlow, Counsel
For the Respondent:
Samara Maharaj, Counsel
HEARD: In Writing
OVERVIEW
1Esther Cooper, the applicant, was involved in an automobile accident on May 30, 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, Intact 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? Note: The parties agree that the MIG limits have been exhausted.
ii. Is the applicant entitled to $3,069.00 for chiropractic services proposed by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated July 25, 2023?
iii. Is the applicant entitled to $3,475.15 for chiropractic services proposed by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan dated June 21, 2021?
iv. Is the applicant entitled to $1,750.00 for chiropractic services proposed by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan dated May 10, 2021?
v. Is the applicant entitled to $2,597.87 for psychological services proposed by Medex Assessments Inc. in a treatment plan dated October 3, 2022?
vi. Is the applicant entitled to $1,395.00 for chiropractic services proposed by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan dated June 21, 2022?
vii. Is the applicant entitled to $2,358.00 for chiropractic services proposed by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan dated May 10, 2022?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The application is dismissed. The applicant has not met her onus to warrant removal from the Minor Injury Guideline.
ANALYSIS
Is the applicant subject to the $3,500 MIG limits?
4Section 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.”
5An 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.
6Here, the applicant argues that she should be removed from the MIG on the basis of pre-existing conditions, chronic pain and psychological impairments. I find she has not met her burden to demonstrate that removal from the MIG is warranted on any of these grounds.
Does the applicant suffer from a pre-existing condition which warrants removal from the MIG?
7The applicant has not met her onus to demonstrate that her pre-existing injuries warrant removal from the MIG.
8The applicant submits that she should be removed from the MIG largely on the basis of a pre-existing condition, submitting that she was suffering from pain in her knee and lower back prior to the accident.
9To support her claim, the applicant relies on clinical notes and records (CNRs) from her GP, Dr. Arumugan, which diagnose lumbar strain, coccydynia and sciatica. She has also included ultrasounds and MRI’s of her right knee taken on March 14, 2018 and June 15, 2018 (approximately one year prior to the accident) which document a suspected Baker’s cyst in her right knee with a suspected surfacing tear. In the CNR dated August 22, 2019, Dr. Arumugan notes that the pre-existing tailbone pain was exacerbated by the subject accident.
10The applicant also relies on the CNRs from OHIP-referred orthopaedic surgeon Dr. Khodabendehloo, which outline multiple visits and recommendations for anti-inflammatories, massage and physiotherapy.
11I find the applicant has provided supporting medical evidence to document a pre-existing condition, specifically with her lower back and right knee to satisfy the first prong of the s. 18(2) test.
12The respondent maintains that the applicant’s injuries are sprain and strain-type injuries that do not warrant removal from the MIG. To support its position, the respondent relies on the s. 44 Insurer’s Examination (IE) reports from GP Dr. Michael Hanna, conducted on June 30, 2022, with a follow up paper review conducted August 5, 2022. These assessments reported sprain and strain type injuries which were decidedly minor in nature.
13The respondent also relies on a s. 44 assessment conducted by GP Dr. Shehla Qadeer dated April 27, 2023 (which noted “no objective evidence of any musculoskeletal impairment), and a s. 44 psychological assessment conducted by Psychologist Dr. Arnold Rubenstein on November 9, 2022, which stated the applicant “does not reach even mild levels of symptom expression.”
14Both the applicant and respondent agree the applicant has a pre-existing condition. However, the applicant still has to meet the second part of the test in section 18(2), namely to provide compelling medical evidence stating that her condition precludes recovery if she is held within the MIG.
15In this case, I was not directed to evidence which indicates that the MIG limitations would preclude her recovery, which is the requirement for removal from the MIG under s. 18(2).
16For these reasons, on the balance of probabilities, I find that the applicant has not met her onus to demonstrate that her pre-existing injuries warrant removal from the MIG.
Should the applicant be removed from the MIG on the basis of chronic pain?
17The applicant has not met her onus to demonstrate that she should be removed from the MIG based on chronic pain with a functional impairment.
18The applicant maintains that her injuries are long term and chronic. She submits that she is still, to this day, suffering from knee and lower back pain.
19To support her claim, the applicant again relies on the medical evidence documented above.
20The respondent submits that the applicant has not met her onus to demonstrate that she is suffering from chronic pain with a functional impairment. The respondent also relies upon the medical evidence documented above.
21The onus is on the applicant to demonstrate that she is suffering from chronic pain with a functional impairment. Despite this, I was not directed to evidence of chronic pain or a related functional impairment nor did the applicant make submissions to support her claim.
22For these reasons, I find on the balance of probabilities, that the applicant has not met her onus to demonstrate that she should be removed from the MIG on the basis of chronic pain with a functional impairment.
Should the applicant be removed from the MIG because she has sustained a psychological injury?
23The applicant has not met her onus to demonstrate she should be removed from the MIG based on psychological injury.
24The onus is on the applicant to demonstrate that she has suffered a psychological injury that warrants removal from the MIG. Despite this, I have not been directed to any submissions from the applicant regarding a psychological injury, nor have I been directed to supportive medical evidence indicating she has an accident-related psychological injury.
25For these reasons, I find on the balance of probabilities that the applicant has not met her onus to demonstrate that she should be removed from the MIG on the basis of a psychological injury.
26As the applicant has not demonstrated that removal from the MIG is warranted, it is not necessary to evaluate the treatment plans in dispute to determine if they are reasonable and necessary.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.
ORDER
28The application is dismissed.
i. The applicant has suffered a minor injury, and is subject to the $3,500 treatment limitation under the Minor Injury Guideline.
ii. As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
iii. No interest is payable.
Released: September 12, 2025
Jeff Chatterton
Adjudicator