Mckinson v. TD General Insurance Company, 2026 CanLII 2283

Citation: Mckinson v. TD General Insurance Company, 2026 ONLAT 24-003426/AABS

Licence Appeal Tribunal File Number: 24-003426/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:

Junior Mckinson

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Aric Bhargava

APPEARANCES:

For the Applicant: Nicholas Whelan, Paralegal

For the Respondent: Jagdeep Khela, Counsel

HEARD: By way of written submissions

OVERVIEW

1Junior Mckinson, the applicant, was involved in an automobile accident on February 28, 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, 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 section 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 $2,862.48 for physiotherapy treatment, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) dated March 18, 2022?

iii. Is the applicant entitled to $876.92 for physiotherapy treatment, proposed by 101 Physio in a plan dated June 13, 2022?

iv. Is the applicant entitled to $1,434.01 for physiotherapy treatment, proposed by 101 Physio in a plan dated June 8, 2023?

v. Is the applicant entitled to $2,300.00 for physiotherapy treatment, proposed by 101 Physio in a plan dated June 13, 2022?

vi. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Physio in a plan dated April 11, 2022?

vii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by 101 Physio in a plan dated August 23, 2022?

viii. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Physio in a plan dated December 16, 2022?

ix. Is the applicant entitled to $2,460.00 for a cognitive assessment, proposed by 101 Physio in a plan dated July 18, 2024?

x. Is the applicant entitled to interest on any overdue payment of benefits?

xi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

3In his submissions the applicant advised that the claim for income replacement benefits listed in the Case Conference Report and Order (“CCRO”) has been withdrawn.

RESULT

4The applicant is subject to the MIG.

5As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

6As there are no overdue benefits, the applicant is not entitled to interest.

7The applicant is not entitled to an award under section 10 of Regulation 664 because no payments were unreasonably withheld or delayed.

ANALYSIS

Application of the Minor Injury Guideline

8I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.

9Section 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 of subluxation and includes any clinically associated sequelae to such an injury.”

10The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.

11The applicant submits that his accident-related injuries include ongoing neck, shoulder and back pain with headaches, and adjustment disorder with anxiety. The applicant submits he should be removed from the MIG, I infer, on the ground of chronic pain, and psychological injuries.

Does the applicant have chronic pain with functional impairment?

12I find the applicant has not demonstrated that he suffers from a chronic pain condition with a functional impairment that would warrant removal from the MIG.

13The applicant submits that he should be removed from the MIG because he suffers from chronic pain in the left hip, lower back, and headaches. The applicant relies on the CNRs of Dr. Mark, family doctor, and the chronic pain report prepared by Dr. Hew, pain specialist.

14The applicant relies on the clinical notes and records (“CNRs”) of Dr. Dennis Mark, family doctor, the section 25 psychological assessment report dated August 5, 2022, prepared by Dr. Konstantinos Papazoglou, psychologist; and the chronic pain report dated September 30, 2024, prepared by Dr. Ernest Hew, pain specialist.

15The applicant refers to multiple entries in the CNRs of his family doctor, Dr. Mark, from March 1, 2022 to October 27, 2024. Over this period, the family doctor noted accident-related complaints of pain in the left hip and lower back four times; initially after the accident on March 1, 2022, then over a year after the accident in May 2023, and then two times in August 2024. I find that the ongoing complaints of back pain are sufficient evidence of chronic pain as a result of the accident. This meets the first part of the test. However, the applicant has not directed me to evidence demonstrating a functional impairment.

16I place less weight on Dr. Hew’s report because it does not refer to a functional impairment. The applicant refers to this report as a chronic pain report, however, this is a pain consultation report. The report diagnoses the applicant with degenerative disease disorder, but that is not accident-related, and the report does not include reference to objective testing or how a diagnosis was derived.

17The respondent submits the applicant has not met his onus and Dr. Nesterenko’s section 44 report included a physical examination with general notes that the applicant “did not demonstrate any ongoing objective musculoskeletal impairment attributable to the accident-related injuries, and he had functional ranges in ranges of motion in his cervical and thoracolumbar spine, as well as both shoulders, hips, and knees.” Dr. Ko’s section 44 report notes the applicant has sustained soft tissue injuries.

18While there is evidence of accident-related chronic pain, given that the applicant has not established he has a functional impairment, I find the applicant has not met his evidentiary onus to prove that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.

Does the applicant have a psychological impairment?

19I find the applicant has not met his burden to prove that he suffers from a psychological impairment that warrants removal from the MIG.

20To establish accident-related psychological impairments, the applicant relies on the section 25 psychological assessment report. The applicant submits that Dr. Papazoglou’s report and diagnosis of adjustment disorder with anxiety should hold more weight than the section 44 report, dated September 2, 2022, prepared by Dr. Shahriar Moshiri, psychologist, because the section 25 was completed with objective testing and the applicant’s self-reported complaints in the two reports are similar.

21Dr. Papazoglou notes the applicant’s self-reported complaints include sleep disturbance, anxiety, hypervigilance and the avoidance of driving since the accident. Dr. Papazoglou notes “the provisional diagnosis of adjustment disorder with mixed anxiety and depressed mood” based on a semi-structured clinical interview including objective tests for pain and memory, as well as several self-reporting tests and measures.

22I place less weight on the section 25 report because it is not corroborated by accident-related symptom reporting to the family doctor. Specifically, the applicant’s singular accident-related complaint noted in the family doctor’s CNRs before the section 25 assessment is from the time of the accident and only about his back, neck, and shoulder pains. Furthermore, the applicant has not directed me to any CNR entry where he reported psychological symptoms to his family doctor. Rather, the CNRs note his next visit to his family doctor is one year after the accident, and there is no mention of accident-related psychological symptoms at any subsequent visit in the CNRs.

23The respondent submits the applicant sustained only soft tissue injuries as a result of the accident and relies on the section 44 psychology report prepared by Dr. Moshiri.

24I place more weight on the family doctor CNRs and the section 44 report prepared by Dr. Moshiri. Dr. Moshiri’s report is based on a semi-structured clinical interview, self-reported complaints, and three objective tests. In particular, Dr. Moshiri notes the applicant self-reported that “denies any feelings of depression, anxiety, or driving phobia” and the applicant stated, “psychologically I am okay.” Dr. Moshiri notes that the applicant “does not have a formal psychological condition” and “his injuries meet the criteria of a minor injury as described in the minor injury guideline.” In my view, the CNRs do not note psychological impairment or injuries that are accident-related and the family doctor’s CNRs and corroborated with the report prepared by Dr. Moshiri.

25I find on a balance of probabilities that the applicant has not met his burden to establish that he has a psychological impairment that would warrant removal from the MIG.

Are the treatment plans reasonable and necessary?

26Having found that the applicant is subject to the MIG, I do not need to consider whether the treatment plans in dispute 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 owed, no interest is payable.

Award

28The applicant sought an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.

29I find an award is not appropriate. As no benefits have been unreasonably withheld or delayed, no award is payable.

ORDER

30The applicant is subject to the MIG.

31As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.

32As there are no overdue benefits, the applicant is not entitled to interest.

33The applicant is not entitled to an award under section 10 of Regulation 664 because no payments were unreasonably withheld or delayed.

34The application is dismissed.