RECONSIDERATION DECISION
Before:
Craig Mazerolle, Vice-Chair
Licence Appeal Tribunal File Number:
23-013534/AABS
Case Name:
Marilena Davies v. TD General Insurance Company
Written Submissions by:
For the Applicant:
Aparajita Singh, Counsel
For the Respondent:
Colin Birch, Counsel
OVERVIEW
1On October 15, 2025, the applicant requested reconsideration of the Tribunal’s decision released September 25, 2025 (“decision”).
2Stemming from an accident on October 25, 2021, and a request for benefits made pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”), the parties participated in a written hearing. In the decision, the Tribunal found the applicant was not removed from the Minor Injury Guideline (“MIG”), and, as a result, it was not necessary to determine the reasonableness and necessity of the disputed treatment plans. The Tribunal also denied the requests for an income replacement benefit (“IRB”), an award, and interest.
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(b) to support her request. She is asking the Tribunal to find she is removed from the MIG. She is also asking for an order finding she is entitled to the treatment plans, an IRB, an award, and interest.
5The respondent asks the Tribunal to dismiss the request for reconsideration.
RESULT
6The applicant’s request for reconsideration is dismissed.
PAGE LIMIT
7The applicant’s initial reconsideration submissions are 11 pages in length. The 11^th^ page is a breach of the 10-page limit set out in Rule 18.1.
8Considering this extra page is largely comprised of a summary of the applicant’s overall position and requested remedy, I see no prejudice facing the respondent from this breach. As such, I have considered the applicant’s submissions in full.
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.
Application of the MIG Test and Interpretation of the Medical Evidence
10According to the applicant, the Tribunal’s MIG findings are at odds with established case law and the evidentiary record. In addition to a general comment about how the “evidence demonstrates that the injuries have not resolved within the expected recovery window contemplated by the MIG”, the applicant makes specific arguments about her alleged psychological impairments and temporomandibular joint (“TMJ”) impairments. I will address them in turn.
11First, the applicant argues that, even though the Tribunal accepted that she sustained anxiety, recurring thoughts of the accident, etc., it still found she did not sustain a psychological impairment meriting removal from the MIG. Instead, the Tribunal required a definitive diagnosis, despite the established principle that a provisional diagnosis is sufficient for removal from the MIG: see Banton v. Belair, 2025 CanLII 23463 (ON LAT).
12The applicant also claims that the Tribunal “erred in dismissing the psychological symptoms as ‘clinically associated sequelae’”, a finding that overlooked evidence like the OCF-3 from Nitin Nair, physiotherapist (dated April 15, 2022). Instead, by unfairly relying on her non-attendance at several insurer’s examinations, the applicant believes the Tribunal made an error by denying this MIG ground.
13The core of the Tribunal’s psychological MIG analysis is found at paragraph 21:
Although 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.
14In sum, after reviewing the applicant’s medical evidence at paragraphs 17 and 20, the Tribunal concluded that she did not meet her onus to show that her psychological symptoms amounted to an impairment. Though the applicant may disagree with this conclusion, this complaint is a dispute with the Tribunal’s weighing of the evidence. Adjudicators are tasked with considering different aspects of the record when assessing the relative weight of a piece of evidence. Unless a requesting party can show that a factor is legally impermissible, or that a part of this analysis was factually incorrect, these assessments will not be disrupted on reconsideration.
15Turning to some of her specific concerns with the Tribunal’s psychological analysis, I first do not accept the applicant’s assertion that the Tribunal required a specific diagnosis to merit removal from the MIG. Briefly, as the quotation above shows, the Tribunal found this lack of a diagnosis to be a piece of evidence that supported its overall conclusion about the MIG. It did not, as the applicant claims, find that a diagnosis was a necessary requirement for removal from the MIG.
16The applicant also claims the findings contained in her OCF-3 were disregarded because the document was completed by a physiotherapist, not a psychologist. However, at paragraph 20, the Tribunal took issue with how the physiotherapist reached this diagnosis:
I 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.
17Finally, I do not find the Tribunal’s reasoning was overly focused on the applicant’s non-attendance at the insurer’s examinations. The specific reference to these missed examinations is found at paragraph 19 (emphasis added):
The 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.
18As this quotation makes clear, the missed examinations were mentioned as part of the Tribunal’s summary of the respondent’s position, not its actual analysis.
19Turning to the TMJ impairments, the applicant submits that the Tribunal improperly dismissed this MIG ground “solely due to delayed reporting”. If the Tribunal had followed the proper “but for” test, the applicant argues that it would have found “a credible causal link between the accident and the later onset of TMJ symptoms”. Further, the applicant contends that the Tribunal overlooked the findings of Dr. Leon Treger, dentist, as well as the OCF-3 from April 2022.
20The core of the Tribunal’s TMJ analysis is found at paragraph 32 (emphasis added):
Considering 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.
21Though the Tribunal did not use the specific wording of “but for”, I still find the applicant has not shown that the Tribunal erred in its understanding and application of the causation test. The Tribunal understood that there needed to be evidence linking the applicant’s TMJ complaints to the accident, and it found the timeline of these complaints was a relevant aspect of this analysis. I see no error in this chain of reasoning.
22I further note that, in addition to its causation finding, the Tribunal based its conclusion about this MIG ground on how the applicant’s TMJ injuries fit within the definition of a “minor injury”. Again, aside from disagreeing with this finding, the applicant has not shown how this analysis was wrong in either fact or law. As noted above, the reconsideration process is not a venue for asking the Tribunal to re-weigh evidence that was considered at first instance.
23Finally, though the applicant claims that there was no consideration of Dr. Treger’s evidence, I note there was a detailed breakdown of this expert’s findings in paragraph 26 of the decision.
Pre-Existing Conditions and Aggravation
24Next, the applicant claims the Tribunal did not properly apply the test under s. 18(2) of the Schedule. Though she has “a documented history of mild degenerative spinal changes and psychological vulnerability, both of which were materially exacerbated by the accident”, the applicant argues the Tribunal incorrectly focused on a lack of “compelling medical evidence” to deny her claim.
25The Tribunal addressed the applicant’s claim that she should be removed from the MIG based on s. 18(2) at paragraphs 12 – 14 of the decision:
The 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.
While 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).
For 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.
26Section 18(2) is a two-part test. It requires “compelling evidence” of both a pre-existing condition and the impacts of this condition on one’s recovery. Though the applicant may claim that the Tribunal’s focus on her failure to meet the second part of this test is incorrect, I see no error in this approach. Rather, it again appears to be a disagreement with the Tribunal’s conclusion on this point.
Award and Interest
27The applicant claims that the respondent’s “failure to approve necessary psychological and TMJ assessment and unreasonable denial of IRBs” together merit an award and interest. She also submits that a failure to grant these benefits will result in greater hardship.
28Since I have found the applicant has not established any grounds for reconsideration, there remains no benefits owing to the applicant. Without any benefits owing, there is, in turn, no basis for an award or interest.
29Taken together, I find the applicant has not established an error that meets the standard of Rule 18.2(b).
CONCLUSION & ORDER
30The applicant’s request for reconsideration is dismissed.
___________________
Craig Mazerolle
Vice-Chair
Released: April 20, 2026