Licence Appeal Tribunal
RECONSIDERATION DECISION
Before: Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number: 24-003734/AABS
Case Name: Graeme Gallerno v. Intact Insurance Company
Written Submissions by:
For the Applicant: Nancy M. McAuley, Counsel Jennifer Amer, Counsel
For the Respondent: Eluxmeenah Rishihesan, Counsel
OVERVIEW
1On December 18, 2025, the applicant requested reconsideration of the Tribunal’s decision released December 5, 2025 (“decision”).
2Stemming from an accident on November 17, 2022 and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”), the parties participated in a written hearing. The Tribunal found the applicant was held to the Minor Injury Guideline (“MIG”). As a result, the Tribunal found it was not required to assess the “reasonable and necessary” nature of the two treatment plans in dispute. The Tribunal also dismissed the claims for interest and an award.
3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:
a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;
b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or
c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
4The applicant relies on Rule 18.2(a) and Rule 18.2(b) to support his request. He is asking the Tribunal to vary the decision to find he is removed from the MIG. He is also seeking an order finding he is entitled to the disputed plans, with interest.
5The respondent asks the Tribunal to dismiss the request for reconsideration.
RESULT
6The applicant’s request for reconsideration is granted.
7Pursuant to Rule 18.4, the decision is varied to find the applicant is removed from the MIG. He is also entitled to payment of some, but not all, of the medical benefits in dispute, plus interest.
8He is not entitled to an award.
ANALYSIS
9The test for reconsideration under Rule 18.2 involves a high threshold, and the requesting party must show how or why the decision falls into one of the categories in Rule 18.2. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence.
10I find the applicant has established grounds for reconsideration as it relates to his claim for removal from the MIG based on a concussion. The applicant has shown that the Tribunal erred in its assessment of a CT scan report (dated November 30, 2022).
11At paragraphs 34 and 35 of the decision, the Tribunal reviewed the timeline of events leading up to the applicant’s referral for a CT scan, as well as the results of this scan (emphasis added):
The applicant submits the family doctor, Dr. [Jonas] Vanderzwan, diagnosed a concussion and post-concussive symptoms within days of the accident. The applicant relies on the CNRs of Dr. Vanderzwan, and the OCF-3/Disability Certificate also completed by Dr. Vanderzwan.
Dr. Vanderzwan notes on November 28, 2022 that the applicant suffered whiplash and may have a concussion. The doctor ordered a computer tomography (“CT”) scan “in the interest of patient reassurance” and the subsequent imaging dated November 30, 2022 confirms the applicant did not suffer a concussion.
12According to the applicant, the Tribunal’s finding that this scan “confirms the applicant did not suffer a concussion” is incorrect. The CT scan was not meant to (nor could it) diagnose a concussion.
13I am satisfied that the applicant has shown the Tribunal erred in its assessment of this evidence.
14The CT scan report states there was a “suspect concussion, but need to R/O bleed”. I interpret “R/O” to mean “rule out”. The scan found no “acute intracranial abnormality.”
15When the Tribunal interpreted the reason for referring the applicant for this imaging was to determine whether he sustained a concussion, it disregarded the stated reason for the referral. It also misinterpreted the conclusion of the CT scan, namely, it did not rule out a concussion. The Tribunal committed a factual error in its handling of this evidence. Then, considering the centrality of this finding to the Tribunal’s dismissal of the applicant’s MIG ground based on a concussion, I am further satisfied that he has shown that this error would likely have impacted the outcome of the decision.
16The respondent disputes this ground for reconsideration, claiming that the Tribunal’s denial “was based on the evidence and a lack of a confirmed diagnosis of concussion.” I do not accept this reading of the decision, as it is clear the CT scan played a major role in this dismissal. Therefore, by incorrectly assessing the purpose and findings of this scan, I find the applicant has established an error.
17Taken together, the applicant has established grounds for reconsideration based on Rule 18.2(b). I do not find it necessary to consider the other alleged errors presented by the applicant.
Rule 18.4 – Varying the Decision
18Considering the availability of the parties’ written hearing submissions and evidence, I find I can adequately re-hear their dispute within the confines of this reconsideration decision. I see no prejudice facing the parties from this arrangement, especially as it will foster a timelier resolution of the dispute. Therefore, pursuant to Rule 18.4, I am cancelling the decision and re-hearing the matter.
19Due to the applicant’s withdrawal of several issues from the Case Conference Report and Order (released August 1, 2024), the following issues remain:
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 MIG limit?
ii. Is the applicant entitled to $1,815.85 for occupational therapy services, proposed by Novus Rehab in a treatment plan/OCF-18 (“plan”) submitted December 7, 2022?
iii. Is the applicant entitled to $4,127.31 for physiotherapy and massage services, proposed by Neuphysio North in a plan submitted January 3, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
20I find the applicant has established removal from the MIG. I am further satisfied that he is entitled to payment of some, but not all, of the medical benefits in dispute, plus interest. The applicant is not entitled to an award.
Minor Injury Guideline
21I find the applicant has established removal from the MIG based on an accident-related concussion.
22Section 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.”
23An 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 concussion, a psychological condition, or chronic pain with a functional impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
24The applicant supports the existence of an accident-related concussion by pointing to the clinical notes and records of his family doctor, Dr. Jonas Vanderzwan. In particular, he highlights a note from the days following the accident when he “documented post-concussive symptoms and a concussion diagnosis”. Dr. Vanderzwan also prepared an OCF-3 (dated January 31, 2023) that included a finding of post-concussive syndrome. The applicant then submits that similar symptoms, e.g., headaches, light sensitivity, and dizziness, are found “throughout his medical records.” Finally, the applicant claims that none of the respondent’s experts have opined on the existence of a concussion.
25After detailing the mechanism of the accident (and the applicant’s immediate symptoms), Dr. Vanderzwan made the following findings during a telephone appointment held on November 28, 2022:
I have cautioned [the applicant and his wife] regarding the limitations of this virtual visit, however based on the mechanism of injury and his constellation of symptoms, I suspect it is a whiplash phenomenon plus or minus concussion. I discussed the pathophysiology concussion and the need for cognitive rest and avoidance of any particular activities that exacerbate his headache. I have recommended he start taking the naproxen as well as Robaxacet over-the-counter on a regular basis. I recommend he get involved with physical therapy. More importantly he needs to keep a close eye out for any worsening or new onset neurologic symptoms or pain.
26Dr. Vanderzwan ordered a CT scan of the brain “to rule out any obvious bleed”, and he noted that the applicant reported “an episode where he was incapable of controlling his emotions.” This outburst was thought to be a possible “part of a concussion, but it may have just simply been a delayed reaction to the traumatic event”.
27As noted above, the CT scan was completed on November 30, 2022. It ruled out the existence of any intracranial abnormalities.
28I note that Dr. Vanderzwan’s initial assessment was inconclusive regarding the possibility of a concussion. However, in the months that followed, the applicant consistently reported similar neurological symptoms to those listed in this note, namely, headaches and cognitive fatigue. For example, in a social work assessment conducted shortly after this visit (report dated December 2, 2022), the applicant again reported headaches and fatigue. Similar complaints were made during the occupational therapy assessment completed by Kelly Smale, OT (report dated December 7, 2022). Then, throughout early 2023, there are consistent complaints of headaches recorded in the records from his treating physiotherapy clinic, Neuphysio North.
29Other types of neurological symptoms also begin populating the applicant’s medical records, such as dizziness and visual issues. For instance, Iain Cumberland, physiotherapist, wrote on February 16, 2023 that the applicant was experiencing “mild visuomotor deficits”. The applicant also reported during this visit that he experienced “dizziness when walking up stairs while looking at feet”. Similarly, when he was first assessed by Mr. Cumberland on December 15, 2022, the applicant reported that it “feels as though his brain is ‘misfiring’ and is experiencing headaches.” This comment about his brain “misfiring” was also made during his occupational therapy assessment with Ms. Smale.
30I also note that, while Dr. Vanderzwan was initially uncertain about whether the applicant sustained a concussion, he later opined that the applicant sustained “post-concussion syndrome” as a result of the accident: see the OCF-3, signed January 31, 2023.
31Taken together, I find the consistency and extent of the applicant’s reported neurological symptoms following the accident provides compelling support for me to conclude, on a balance of probabilities, that the applicant sustained an accident-related concussion.
32The respondent does not specifically address the possibility of a concussion in its written hearing submissions. Rather, it focuses on what it sees as “limited” medical evidence from the applicant. It also highlights how its s. 44 assessors both concluded that his injuries did not merit removal from the MIG, as well as the fact he told its GP assessor, Dr. Pankaj Bansal, that he returned to his physically demanding job several weeks after the accident (report dated May 11, 2023).
33I do not find the respondent has successfully challenged my conclusion about the applicant’s concussion. First, as my review above demonstrates, I am satisfied that he provided a significant amount of medical evidence to support his position.
34Second, the respondent’s assessments do not alter my conclusions. In addition to the fact that Dr. Jay McGrory’s report focused on the applicant’s mental health (dated April 14, 2023), I place little weight on Dr. Bansal’s finding that the applicant did not suffer from any neurological impairments. Not only was the applicant still reporting regular, weekly headaches during this assessment, but Dr. Bansal’s document review index does not include the treatment records from Neuphysio North. Mr. Cumberland’s OCF-18 was reviewed, but not the notes themselves. These records provide a consistent account of the applicant’s neurological symptomology in the months following the accident. As such, I find the lack of these records significantly challenges the reliability of Dr. Bansal’s opinion.
35In sum, I conclude the applicant has established removal from the MIG based on an accident-related concussion.
36To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
37Starting with the occupational therapy services plan (submitted December 7, 2022), I find the applicant has demonstrated the reasonable and necessary nature of the proposed occupational therapy treatment, heating pad, and related documentation and planning services. I am not satisfied that the applicant has met his onus with the proposed provider travel time.
38The applicant is asking for $1,815.85 to fund three, 90-minute treatment sessions with an occupational therapist, including provider travel time for these sessions. He is also seeking funding for documentation and planning services, as well as a large heating pad. The treatment goals include, in part: pain reduction, increased range of motion and strength, return to work and household roles, and improved sleep quality and energy management.
39Pointing to the speech language pathology report from Stephanie Ellis (dated March 16, 2025) and the assessment from Dr. Keith Sequeira (dated October 25, 2023), the applicant claims this treatment is needed to help with his recovery from accident-related pain and limitations. He also claims that the funding allotted for a progress report and planning services will allow the treatment provider to effectively monitor his progress. Finally, he argues that the overall cost of the plan is “modest”.
40First, considering the medical evidence explored above regarding his concussion (and the related cognitive fatigue and pain), I find the plan’s goals of assisting with energy management, pacing, and sleep quality are all necessary aspects of the applicant’s recovery.
41I am then satisfied that the report from Ms. Ellis provides compelling corroboration to find that the services recommended in the plan will help him to meet these goals. After determining that the applicant experienced “deficits in cognitive-communication functioning”, one of the recommendations made by Ms. Ellis was for occupational therapy to “assist with pacing and planning to help with pain management and energy conservation”.
42I also accept that the cost and scope of the proposals made in the plan are relatively limited and reasonable. The plan is only seeking three sessions of occupational therapy treatment, along with several related items, like a heating pad, a progress report, etc.
43However, where I find the applicant has not met his onus is the claim for provider travel expenses. No justification is included for this expense on the OCF-18, and the applicant does not provide any explicit explanation in his submissions for why these expenses are reasonable and necessary. By not meeting this part of his onus, I find these travel expenses are not payable.
44Citing Blas v. Aviva Insurance Canada, 2021 CanLII 127471 (ON LAT) for the proposition that an applicant must provide more than an OCF-18 form to meet their onus under s. 15 and s. 16, the respondent claims the applicant has not provided sufficient medical evidence to support entitlement. It also relies on its s. 44 reports to support its denials.
45I do not find these arguments are compelling. The applicant has provided extensive medical evidence to support the existence of accident-related pain and cognitive fatigue. There is also medical evidence that connects the services contained in the plan to the recovery of these impairments. I also note that neither s. 44 assessor was asked to review this specific treatment plan.
46Turning to the physiotherapy and massage services treatment plan (submitted January 3, 2023), I find the applicant has demonstrated the reasonable and necessary nature of this plan.
47The applicant is seeking a total of $4,127.31 for massage therapy and physiotherapy, with additional funding allocated for assessments, exercise equipment, planning services, and documentation. The bulk of the funding is slated for ten, 90-minute massage therapy sessions and 20, one-hour physiotherapy sessions. The treatment goals include, in part: pain reduction, increased range of motion and strength, as well as improved headaches, light tolerance, pacing/planning for work, cognition, and sleep hygiene.
48The applicant claims there is ample support for the plan in the clinical notes of his treating physiotherapists. Specifically, when he was receiving funding for these services, the records show physiotherapy was helping with his accident-related impairments. He also highlights support for massage therapy in the occupational therapy report from Ms. Smale.
49The respondent relies on the same arguments detailed above for the occupational therapy services plan to support its denial of this second plan.
50I find the medical evidence presented by the applicant supports the reasonable and necessary nature of this plan. Relying again on the evidence detailed above in my MIG analysis, there are ample and consistent complaints of headaches and physical pain following the accident. As such, I am satisfied that the proposed treatment goals of addressing these impairments are a necessary part of the applicant’s recovery.
51Then, I find there is support for these proposed services in the notes from his treating physiotherapists. For instance, Arpan Shah endorsed “ongoing physiotherapy, stretching, strengthening exercises, MT and electrotherapy” on March 20, 2023. Also, Ms. Smale’s report connects these services to the treatment of the applicant’s accident-related impairments: “Massage therapy treatment is also recommended to assist with managing pain and stiffness.”
52I also note that the amount and frequency of the services being requested are reasonable in light of the persistent nature of the impairments the plan is seeking to address.
53Furthermore, this evidence again leaves me unconvinced by the respondent’s argument that the applicant has only relied upon the OCF-18 form to support his entitlement to the plan. Similarly, I do not find its reliance on the report from Dr. Bansal is a compelling defense. While this assessor did not support this plan, I again find the document review conducted by Dr. Bansal was missing a key element, namely, the records of the treating clinic. I also note that the applicant reported ongoing pain to this assessor. Considering this assessment took place only a few months after the plan was submitted (i.e., April 27, 2023), these continuing complaints are a strong indication that there were ongoing, accident-related impairments that still required treatment.
54Taken together, I find the applicant has established, on a balance of probabilities, the reasonable and necessary nature of the physiotherapy and massage services treatment plan (submitted January 3, 2023).
Interest
55Interest applies on the payment of any overdue benefits, pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits in accordance with s. 51.
Award
56Under s. 10 of O. Reg. 664, the Tribunal may grant an award of up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
57In his written hearing submissions, the applicant claimed the respondent acted unreasonably in the way it assessed the application of the MIG. The applicant claims the respondent had sufficient medical records to justify removal, yet it refused to make this determination (even in the face of requests from his counsel). The applicant also claims that the respondent refused to pay up to the MIG limit, as “all treatment beyond $2,200.00 has been denied.” Finally, the applicant argues the respondent has not complied with the Tribunal’s order to produce the complete file of Dr. Bansal. He reinforced this last point in his reply.
58I find the applicant has not met his onus to demonstrate entitlement to an award. Starting with the MIG determination, an insurer’s conduct is not measured against the standard of perfection when determining whether an award is merited. Though the applicant may take issue with the respondent’s continuing refusal to remove him from the MIG, it was entitled to rely upon its review of the available medical evidence (including its expert reports) to reach this conclusion. The applicant has not pointed to any specific errors in the assessment process.
59For the remaining amount in the MIG, I do not see how this argument supports a finding of unreasonable withholding or delay on the part of the respondent. Not only is the MIG both a funding and treatment limit (such that certain services, like occupational therapy, are not captured), the applicant is highlighting denied plans that all requested amounts in excess of the $1,300.00 he claims to have been remaining at the time.
60Finally, I do not find the respondent’s alleged non-compliance with the Tribunal’s production order has any bearing on the disputed payments. Specifically, the applicant has not provided a compelling explanation to demonstrate why this alleged breach is connected to an unreasonable delay or withholding of any disputed benefits. Additionally, concerns about a party’s conduct during a proceeding before the Tribunal is best addressed through other remedies (e.g., costs, procedural orders, etc.), as the focus of an award is on the insurer’s adjusting practices.
61I note that the applicant references settlement discussions as part of his award submissions. These discussions are presumptively covered by settlement privilege, so I have not considered them as part of my analysis.
CONCLUSION & ORDER
62The applicant’s request for reconsideration is granted.
63Pursuant to Rule 18.4, I am varying the decision at paragraphs 45 – 49 to read as follows:
45The applicant is not subject to the MIG.
46The applicant is entitled to payment of the following treatment plans, plus interest pursuant to s. 51 of the Schedule:
a. $1,815.85 for occupational therapy services, proposed by Novus Rehab in a treatment plan submitted December 7, 2022, save for the amount allocated on the OCF-18 form for “Provider travel time, provider to treatment”; and
b. $4,127.31 for physiotherapy and massage services, proposed by Neuphysio North in a plan submitted January 3, 2023.
47The applicant is not entitled to an award.
Craig Mazerolle Vice-Chair
Released: February 23, 2026