Licence Appeal Tribunal File Number: 24-000053/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:
Christabell Durate
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Gordon Stencell
APPEARANCES:
For the Applicant:
Dale Rosenberg, Counsel
For the Respondent:
Thomas Petrella, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Christabell Durate, the applicant, was involved in an automobile accident on March 6, 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, 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?
ii. Is the applicant entitled to $4,345.24 for physiotherapy services, proposed by Whitby Physiotherapy in a treatment plan/OCF-18 (“plan”) dated September 29, 2023?
iii. Is the applicant entitled to $3,553.07 for physiotherapy services, proposed by Whitby Physiotherapy in a plan dated February 15, 2023?
iv. Is the applicant entitled to $368.81 ($800.32 less $431.51 approved) for physiotherapy services, proposed by Whitby Physiotherapy in a plan dated April 1, 2023?
v. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Dr. Hill Psychology in a plan dated February 8, 2023?
vi. Is the applicant entitled to $2,400.00 for an Attendant Care Assessment, proposed by Align Physio and Wellness in a plan dated April 5, 2023?
RESULT
3I find as follows:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 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. The applicant is dismissed.
PROCEDURAL ISSUES
4In its submissions, the respondent argued the applicant should not be provided an opportunity to file late submissions as it would be prejudicial to the respondent because it filed submissions without knowing the case it has to meet.
5While I acknowledge the applicant filed and served her submissions late, I find the procedural issue raised by the respondent is moot because I have found below that the applicant did not meet her onus and have dismissed her application.
ANALYSIS
The Minor Injury Guideline
6I find that the applicant has not demonstrated, on the balance of probabilities, that she suffers from an injury or condition that warrants removal from the MIG.
7Section 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.”
8An 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.
9The applicant submits she should be removed from the MIG on the basis of chronic pain. The applicant relies on the clinical notes and records (“CNRs”) of Dr. Jenny Shu, Rheumatologist, dated August 9, 2024, September 10, 2024, November 15, 2024, and January 27, 2025. However, those CNRs contain no records of chronic pain because of the accident and are more than two years post-accident.
10I find the applicant has not led evidence that she has suffered from chronic pain with a functional impairment because of the accident that would remove her from the MIG.
11I find, on the balance of probabilities, that the applicant has not demonstrated she is suffering from chronic pain with a functional impairment as a result of the accident. As such, she has not met the onus of proof to warrant removal from the MIG.
12As the applicant is in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
ORDER
13For the reasons stated above, I find that:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 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. The application is dismissed.
Released: January 6, 2026
Gordon Stencell
Adjudicator