Licence Appeal Tribunal File Number: 24-001524/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:
Michael Tuz
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gordon Stencell
APPEARANCES:
For the Applicant:
Alexander Makaronets, Counsel
For the Respondent:
Sonya Reid, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Michael Tuz, the Applicant, was involved in an automobile accident on August 29, 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, Co-operators 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 limit?
ii. Is the Applicant entitled to the treatment proposed by Mackenzie Medical Rehabilitation Centre, as follows:
a. $3,622.73 for physiotherapy services, in an OCF-18/treatment plan (“plan”) submitted on September 8, 2022; and
b. $2,023.03 for physiotherapy services, in a plan submitted on January 5, 2023; and
c. $1,525.84 for physiotherapy services, in a plan submitted on March 17, 2023?
iii. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The Applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG; and
ii. As the Applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary; and
iii. Since there are no overdue payments, the Applicant is not entitled to interest.
ANALYSIS
Minor Injury Guideline (“MIG”)
4I find that the Applicant has not demonstrated, on the balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG.
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 submits that the physical injuries he sustained in the collision, and his pre-existing conditions remove him from the MIG.
The Applicant’s physical injuries are consistent with the MIG
8I find, on a balance of probabilities, the Applicant does not suffer from physical injuries that would warrant removal from the MIG.
9The Applicant argues he should be removed from the MIG on the basis of a Grade 2 AC joint separation resulting in a complete ligament tear.
10The Applicant argues his Grade 2 AC joint separation resulted in a complete tear that should be classified outside of the MIG. Though the Applicant makes this assertion of a complete tear in his submissions, he later refers to a partial tear. The Applicant directs me to the CNRs of his family doctor dated November 23, 2022, that reports a right shoulder partial thickness tear and a partial thickness tear in the bicep tendon. The Applicant has not pointed me to any medical evidence that he has a complete tear.
11The Applicant argues there are other injuries that must be considered for removal from the MIG. The Applicant relies on injuries listed in the OCF-3 disability certificate completed by Aaron Pereira, chiropractor, dated September 8, 2022, which I have considered. I have reviewed the list of injuries in the OCF-3, and they are all minor injuries by definition.
12The respondent argues there is no medical evidence of any complete tear of any ligament or tendon in any of the documents before me. The Respondent argues that according to the MIG, injuries to tendons or ligaments - so long as they are not complete tears - are considered “sprains” and are therefore minor injuries.
13For the reasons set out above, I find the Applicant has not shown on a balance of probabilities he should be removed from the MIG on the basis of his physical injuries.
The Applicant’s is not removed from the MIG on the basis of a pre-existing medical condition
14I find, on a balance of probabilities, the Applicant does not suffer from a pre-existing medical condition that would warrant removal from the MIG.
15The Applicant submits he should be removed from the MIG on the basis the MVA has resulted in exacerbation of pre-existing conditions that may limit his recovery within the MIG. The Applicant relies on the CNRs of his family doctor, Dr. Toyonaga, as evidence of pre-existing conditions. The respondent disagrees with the Applicant. The respondent argues the Applicant’s submission does not meet the test for removal from the MIG on the basis of a pre-existing condition
16I turned my mind to the CNRs of Dr. Toyonaga. I find that the CNRs disclose the Applicant had health issues prior to the accident but they do not argue any pre-existing condition precludes maximal recovery under the MIG limit of $3,500.00.
17The Applicant relies on case law, 16-003010 v Aviva Insurance Canada, 2017 CanLII 46346 (ON LAT), for the phrase, “contradictory insurance examinations”, however has not pointed out inconsistencies in the respondent’s evidence. The Respondent relies on case law, 17-001856 v Travelers, 2018 CanLII 4280 (ON LAT), that evidence of a pre-existing condition alone is not sufficient to ground removal. Rather, the evidence must demonstrate that the pre-existing condition prevents the achievement of maximal recovery in the MIG.
18The respondent relies on the insurer’s examination (“IE”) report of Dr. Zabieliauska, physiatrist. The Applicant attended the IE on March 7, 2023, resulting in a physiatry report dated March 29, 2023. According to the report, the Applicant does not suffer from a medical condition that existed prior to the MVA that has been exacerbated by the accident. I give the IE report weight because it is consistent with the CNRs of Dr. Toyonda.
19I find the Applicant has not met his onus because he has not put forth evidence from a health practitioner that he has any pre-existing medical condition that will prevent him from achieving maximal medical recovery if he is subject to the MIG limits. Therefore, I find that the Applicant has not met the test under s. 18.2 of the Schedule.
20For the reasons set out above, I find on a balance of probabilities that the Applicant has not established he has a pre-existing condition that warrants removal from the MIG.
It is not necessary to consider if the treatment plans are reasonable and necessary
21As I have found that the Applicant remains within the MIG, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary.
Interest
22Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that there no benefits owed, the Applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
23I find that:
i. The Applicant’s accident-related injuries are predominantly minor, and he is therefore subject to treatment within the $3,500.00 limit of the MIG; and
ii. As the Applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary; and
iii. Since there are no overdue payments, the Applicant is not entitled to interest.
Released: April 10, 2026
Gordon Stencell
Adjudicator