Citation: South v. TD Insurance, 2026 ONLAT 24-015560/AABS

Licence Appeal Tribunal File Number: 24-015560/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 South

Applicant

and

TD Insurance

Respondent

DECISION

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Applicant:

Nicholas Whelan, Paralegal

For the Respondent:

Nicole De Bartolo, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Michael South, the applicant, was involved in an automobile accident on November 11, 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 TD Insurance, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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?

2. Is the applicant entitled to $2,533.72 for chiropractic services, proposed by Upper James Wellness Clinic Inc. in a treatment plan/OCF-18 submitted on May 3, 2023?

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

RESULT

3The applicant has not demonstrated that his injuries are not minor, as defined by the Schedule, or that he suffers from chronic pain with functional impairment that would warrant removal from the MIG.

4Since the applicant’s injuries are considered minor, the proposed treatment plan outside of the MIG is not payable.

5Since no benefits are payable, no interest is payable.

ANALYSIS

The Minor Injury Guideline

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.”

7An 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.

8The treatment plan in dispute sought treatment outside of the MIG limit. In the Case Conference Report and Order dated April 9, 2024, the parties agreed that the $3,500 MIG limit was exhausted.

9The parties dispute whether the applicant’s physical impairments place him outside of the MIG. The parties also dispute whether the applicant suffered from chronic pain with functional impairment that would warrant removal from the MIG, and whether the proposed treatment plan is reasonable and necessary.

The applicant’s physical impairments do not place him outside of the MIG

10The applicant submits that, on his visit with his family physician, Dr. Al Delos Santos Alepio, on November 18, 2022 (the day after the accident), he reported complaints of a stiff neck, bilateral lower back pain, and pain over the neck/trapezius and paracervical areas.

11The applicant submits, further, that in the insurer’s examination (“IE”) conducted by Dr. Allan Kopyto, general practitioner, on June 8, 2023 (over 6.5 months post-accident), he continued to report neck and back pain, numbness and tingling sensations in his hands, and disrupted sleep due to neck pain and inability to find a comfortable sleeping position.

12The applicant argues that he was diagnosed with chronic whiplash-associated disorder (“WAD”) by his treating physiotherapist, Nicholas Savatteri, on March 6, 2024 (more than 15 months post-accident), and that his injuries place him outside of the MIG.

13The respondent submits that the applicant’s injuries were limited to soft-tissue strains that were resolved with conservative care. The respondent relies on the IE of Dr. Kopyto, who noted that the applicant’s range of motion was full and fluid across all spinal regions and that there was no tenderness, spasm, swelling or neurological deficit. Dr. Kopyto opined that the applicant sustained strain injuries to his jaw, neck and back, as well as post-traumatic headaches as a result of the accident, and that the applicant’s injuries met the criteria of a minor injury as described in the Schedule.

14I find that the applicant has not directed me to evidence that indicates that his injuries, including WAD and strains to the jaw, neck and back, fall outside of the definition of a minor injury as defined under s. 3(1) of the Schedule. For this reason, I find that the nature of the applicant’s injuries does not place him outside of the MIG.

The applicant’s chronic pain does not place him outside of the MIG

15The applicant submits that his ongoing complaints of pain over multiple visits to physicians and therapists demonstrate chronicity of pain as a result of the accident. The applicant directed me to the clinical notes and records of Mr. Savatteri, from March 6, 2024 (more than 15 months post-accident), that indicated that the applicant suffered from chronic WAD as a result of the accident. On that date, Mr. Savaterri referred the applicant for a further pain assessment.

16The applicant argues that a diagnosis by a physician is not necessary to establish chronic pain, citing Green v. Aviva General Insurance, 2024 CanLII 115437 (ON LAT) (“Green”). The applicant argues that his pain persisted for an extensive period after the accident, with ongoing physical therapy and prescription pain medication (naproxen and flexiril), and that his pain has affected and altered his daily activities.

17The respondent argues that the applicant has not demonstrated functional impairment as a result of the accident, and therefore his pain complaints to not meet the Tribunal’s threshold for chronic pain warranting removal from the MIG. The respondent submits that the applicant reported to the IE assessors (Dr. Kopyto as well as Dr. Jason Bacchiochi, psychologist) that he continued to work full-time as a dentist, maintaining an active schedule of 45 to 55 hours per week across multiple offices, and that he reported missing only one day of work since the accident, without accommodations.

18The respondent submits, further, that the applicant reported to the IE assessors that he continued to drive, and that he continued to engage in personal, professional and recreational activities without limitations.

19The respondent argues that to be removed from the MIG because of chronic pain, an injured person must prove on a balance of probabilities that their pain is a predominant impairment that results in demonstrable functional impairment.

20I find that Green is distinguishable from the matter before me, in that in Green, the injured person produced evidence of dependence on prescription medication, excessive dependence on others for daily activities, and secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain. I find that the applicant in the present matter has not put forward evidence of chronic pain that meets the criteria for chronic pain recognized by the Tribunal. (See, for example, the Tribunal’s analysis in 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 ON LAT).

21I find that the applicant has not demonstrated that he suffers from chronic pain with functional impairment warranting removal from the MIG, even in the absence of a formal diagnosis by either party. I find that that the level of functionality that the applicant reported to the IE assessors does not demonstrate to me that his pain, however chronic, is accompanied by functional impairment warranting removal from the MIG.

The applicant is not entitled to the funding for the proposed treatment plans

22I find that the applicant’s injuries, as a result of the accident, are minor as defined by s. 3(1) of the Schedule.

23As the MIG limits have been exhausted, there is no further entitlement to medical or rehabilitation benefits and therefore an analysis into whether the treatment plans are reasonable and necessary is not required.

Interest

24As no benefits are owing, the applicant is not entitled to interest.

ORDER

25For the reason above, I find that:

1. The applicant’s injuries are minor as defined by the Schedule;

2. The applicant is not entitled to the disputed treatment plan; and

3. This application is not entitled to interest.