Licence Appeal Tribunal File Number: 23-013534/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:
Marilena Davies
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
APPEARANCES:
For the Applicant:
Naman Nanda, Counsel
For the Respondent:
Colin Birch, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Marilena Davies, the applicant, was involved in an automobile accident on October 25, 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, TD General 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 an income replacement benefit (“IRB”) of $86.05 per week from November 1, 2021 to July 1, 2022?
iii. Is the applicant entitled to physiotherapy services proposed by Physiomed Milton as follows:
$417.00 in an OCF-18/treatment plan (“plan”) submitted on June 30, 2022?
$2,744.00 in a plan submitted on November 23, 2021?
iv. Is the applicant entitled to $2,486.00 for a TMJ assessment proposed by Downsview Healthcare (“Downsview”) in a plan submitted on May 15, 2023?
v. Is the applicant entitled to $2,486.00 for a psychological assessment proposed by Downsview in a plan submitted on May 17, 2023?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
3In their submissions, both parties agreed that the quantum in dispute for the IRB should be $86.05 per week instead of $400.00 per week. Accordingly, issue 2(ii) above is amended to reflect this.
RESULT
4The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. Therefore, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.
5The applicant is not entitled to an IRB.
6The applicant is not entitled to interest.
7The respondent is not liable to pay an award.
ANALYSIS
Applicability of the Minor Injury Guideline
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.”
9An 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 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 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 suffered from TMJ impairments and a psychological impairment because of the accident, and that she has various pre-existing impairments that were exacerbated by the accident. The respondent submits that the applicant sustained only minor soft tissue injuries and a laceration, which fall within the MIG.
The applicant does not have a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG
11The applicant has not met her onus to prove on a balance of probabilities that she should be removed from the MIG as a result of any pre-existing conditions.
12The applicant refers to medical documentation that indicates that she suffers from the following pre-accident medical impairments: Major Depressive Disorder, ADHD, Borderline Personality Traits, Polysubstance Use Disorder in sustained remission, PTSD in remission, concussions, degenerative signal loss at L5-S1 and posterior central disc protrusion.
13While the applicant has met the first prong of the test, she does not direct me to any medical evidence indicating that any of these conditions preclude recovery if she is kept within the confines of the MIG, which is the requirement for removal from the MIG on this ground under s. 18(2).
14For these reasons, I find that the applicant has not met her onus to demonstrate on a balance of probabilities that she should be removed from the MIG based on any pre-existing conditions.
The applicant does not suffer a psychological impairment as a result of the accident that would take her out of the MIG
15The applicant has not met her onus of establishing on a balance of probabilities that she suffers from a psychological impairment because of the accident that would take her out of the MIG.
16The applicant put into evidence a Disability Certificate (OCF-3) dated April 15, 2022, prepared by Nitin Nair, physiotherapist, indicating that she suffers from generalized anxiety disorder because of the accident.
17The applicant relies on her consultation with Dr. Ron Book, general practitioner, on December 15, 2021, where she reported symptoms of general anxiety, although I note she does not attribute this to the accident. The applicant also submits that she requested counselling from her family doctor on January 12, 2022. The applicant further relies on the s. 44 Insurer’s Examination conducted by Dr. Victoria Squissato, general practitioner, on August 17, 2022, where the applicant reported that she continued to feel anxious and stressed, had frequent thoughts of the accident, and felt nervous driving in traffic.
18The applicant submits that based on her medical records it can reasonably be concluded that she suffered substantial psychological impairments as a result of the accident that are significant and severe enough to take her out of the MIG.
19The respondent submits that no doctor has diagnosed the applicant with a psychological impairment because of the accident, and that her medical records show that her psychological issues are pre-existing and/or unrelated to the accident. The respondent further submits that the applicant refused to attend validly requested s. 44 assessments with a psychologist on June 22, August 28 and November 9, 2023, without explanation.
20I place no weight on the diagnosis of generalized anxiety disorder that was made by Nitin Nair, physiotherapist, because there is no indication on the OCF-3 that there was a review of the applicant’s medical documentation or that any psychological testing was done in coming to this diagnosis.
21Although I find that the applicant suffers from psychological symptoms because of the accident, such as anxiety, frequent thoughts of the accident, and feeling nervous driving, I am not persuaded on a balance of probabilities that these symptoms amount to a psychological impairment justifying removal from the MIG. In my view, and without a medical opinion stating otherwise, these are best captured as clinically associated sequelae to the applicant’s minor injury. This is supported by the fact that the applicant has not directed me to an opinion from a treatment provider that she has suffered from a psychological impairment as a result of the accident or that her pre-existing psychological symptoms were exacerbated by the accident or prevent her recovery under the MIG.
22For these reasons, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that she suffers from a psychological impairment because of the accident that would take her out of the MIG.
The applicant does not suffer from TMJ impairments that would take her out of the MIG
23The applicant has not met her onus of establishing on a balance of probabilities that she suffered from TMJ impairments because of the accident that would remove her from the MIG.
24The applicant submits that she suffered TMJ impairments as a result of the accident and accordingly she should be removed from the MIG.
25The applicant refers to her consultation with Dr. Book on December 15, 2021, where she reported musculoskeletal and TMJ issues from the accident. She did not report specific details. The applicant relies on the OCF-3 dated April 15, 2022, indicating that she suffered with strain and sprain of the jaw. The applicant also refers to clinical notes and records (“CNRs”) from Tomken Centre Dentistry dated June 9, 2022, where she reported that she hit her jaw in the car accident, her front teeth bled and they moved, and her bite was not the same after the accident.
26She further relies on a report dated September 3, 2023 by Dr. Leon Treger, general dentist with a special interest in assessment and treatment of TMJ disorders, indicating that the applicant reported the following accident-related complaints: difficulty opening and closing her mouth and chewing food, broken teeth, jaw pain, pain in front of the ears, pain, ringing and popping noises in the ears, pressure or pain in the eyes, facial pain and neck ache. She also reported that the dislocated jaw she suffered in the accident was moved back into place by her physiotherapist. Dr. Treger diagnosed the applicant with capsulitis of the temporomandibular joint, crepitus of the temporomandibular joint on the right and left sides, pain in the jaw on the right and left sides, and joint stiffness (TMJ) on the right and left sides. Dr. Treger opined that there was at least a fifty percent impairment in function of the cranio-mandibular complex.
27The applicant also refers to Dr. Squissato’s report dated August 26, 2022, where Dr. Squissato diagnoses the applicant with musculoskeletal sprain/strain of the jaw.
28The respondent points out that the first time the applicant reported that she hit her jaw in the accident was on June 9, 2022 and that on that date she does not mention her TMJ having been previously dislocated, or broken teeth. The respondent further submits that the CNRs from Tomken Centre Dentistry dated July 6, 2022 indicate that radiographs were taken and there is a notation that the TMJ was within normal limits.
29The respondent also argues that, during the applicant’s August 7, 2023 assessment by Dr. Treger, her reporting of the circumstances of the accident and her associated injuries was clearly exaggerated. The applicant reported being rear-ended by a vehicle going 80 km/h, striking her head on the steering wheel which left her with a dislocated jaw and multiple broken teeth. She endorsed ongoing pain in multiple areas, headaches, difficulty eating and being completely unable to eat solid foods. The respondent submits that Dr. Treger did not review her medical records to see if her reporting was accurate, and did not review the dental records.
30The respondent refers to the following medical evidence which it argues is inconsistent with the applicant’s reporting to Dr. Treger:
i. The ambulance call report indicates that the applicant was rear-ended in bumper-to-bumper traffic (low speeds). She got out of her car to take a photo of the license plate because she was worried the other driver was going to drive away. As she was chasing the other driver, she scraped her left flank on the guardrail. No centralized neck pain, no loss of consciousness and no headaches/dizziness.
ii. At the hospital, it was noted that she was rear-ended at low speed, got out of her vehicle and fell onto her left flank. She was diagnosed with soft tissue injuries and a laceration.
iii. The applicant met with her family physician, Dr. Adam Norris, on October 28, 2021 and reported that she was rear-ended, that she had a bruise on her chest and pain from a laceration, which was from her seatbelt.
31The respondent submits that the alleged TMJ injury and impairment is fabricated or unrelated to the accident. The respondent submits that there are no references to a facial, TMJ, tooth or jaw injury in the immediate post-accident hospital or the family doctor’s CNRs, despite the applicant’s reporting of a dislocated jaw and broken teeth to Dr. Treger. The respondent further submits that, although Dr. Treger diagnoses a TMJ impairment, the applicant’s dental records clearly show that her TMJ examination was normal.
32Considering that the applicant did not report that she hit her jaw in the accident until June 9, 2022, over seven months after the accident, and that the applicant does not direct me to any complaints relating to her jaw or her teeth that were made to her family doctor at all in relation to the accident or otherwise, I am not satisfied on a balance of probabilities that the applicant suffered from a TMJ injury because of the accident. Further, even if I found that she had, the applicant has not directed me to evidence that her TMJ injury would not be captured by the definition of a minor injury. I note that the OCF-3 dated April 15, 2022 relied upon by the applicant indicates that she suffered with strain and sprain of the jaw. I also note that Dr. Squissato opines in her report dated August 26, 2022 that the applicant’s injuries from the accident, including the musculoskeletal sprain/strain of the jaw, meet the criteria of a minor injury as defined in the Schedule.
33For these reasons, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that she suffered from TMJ impairments because of the accident that would remove her from the MIG.
34For all the reasons set out above, I find that the applicant has not met her onus of proving on a balance of probabilities that her accident-related impairments warrant removal from the MIG.
35As the applicant is in the MIG, it is unnecessary to consider the reasonableness and necessity of the treatment plans in dispute.
The applicant is not entitled to an IRB
36The applicant has not met her onus of establishing on a balance of probabilities that she is entitled to an IRB.
37To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
38The applicant relies on an OCF-3 that was completed by Nitin Nair on November 15, 2021 indicating that the applicant suffered from the following injuries as a result of the accident: strain and sprain of the cervical and thoracic spine and jaw, superficial injury of the shoulder, hip, and thigh, generalized anxiety disorder, and radiculopathy. The assessor opined that the applicant was substantially unable to perform the essential tasks of her employment as a result of and within 104 weeks of the accident because she had difficulty in maintaining prolonged static posture and she was thirty-five weeks pregnant. There is also an indication that the applicant cannot return to work on modified duties and hours.
39The applicant refers to the OCF-2 which indicates that she was working as a “companion” at Lifeguard Homecare Inc., where she started working on January 28, 2021. Her job duties included companion, light housekeeping, and spending time with clients.
40The applicant submits that the medical evidence submitted more likely than not supports her IRB entitlement.
41The respondent points out that no doctor has noted any accident-related complaints which impact the applicant’s ability to work, and no doctor has concluded that she was rendered unable to work because of the accident. Further, the respondent refers to the applicant’s Notices of Assessment which indicate that she earned $21,453.00 in 2021 and $22,837.00 in 2022. The respondent submits that the applicant earned more in 2022, despite her position that she was rendered unable to work from November 1, 2021 to July 1, 2022 by the accident.
42The applicant does not direct me to evidence relating to which tasks she is unable to perform and to what extent she is unable to perform them. Further, the applicant does not direct me to medical evidence from her family doctor or any other treatment provider in support of the OCF-3 that indicates that her accident-related injuries prevented her from working and why.
43For these reasons, I find that the applicant has not met her onus of proving on a balance of probabilities that she suffered a substantial inability to perform the essential tasks of her employment as a result of and within 104 weeks after the accident.
Interest
44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since there are no overdue payments, no interest is ordered.
Award
45The 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. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.
ORDER
46For the above reasons, I find:
i. The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG. Therefore, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.
ii. The applicant is not entitled to an IRB.
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
iv. The respondent is not liable to pay an award.
Released: September 25, 2025
__________________________
Laura Goulet
Adjudicator