Concussion removes injury from Minor Injury Guideline coverage: Ontario Licence Appeal Tribunal

A family physician could make the concussion diagnosis needed to remove an injured person from coverage of the Minor Injury Guideline, said the Ontario Licence Appeal Tribunal in a recent case. A neurological opinion was not necessary, the tribunal clarified.

In this case, the applicant was involved in a car accident in mid-April 2021. She received a concussion diagnosis three days later. She requested compensation under the Statutory Accident Benefits Schedule. When her insurance company denied her claims, the applicant brought the dispute to the tribunal.

The tribunal addressed four issues. The first was whether the applicant’s injuries were minor under the Schedule, which would limit her to $3,500 in treatment costs under the Minor Injury Guideline. The second issue was whether she was entitled to $2,845.64 for the physiotherapy services proposed by a rehabilitation care clinic.

Third, the tribunal had to consider whether the insurer was entitled to a repayment of $1,657.14 in overpaid income replacement benefits, plus interest, on the basis that the applicant returned to work earlier than reported. The last issue was whether the applicant was entitled to interest on any overdue benefit payments.

Injury not minor: tribunal

In Gavey v Wawanesa Insurance, 2024 CanLII 77430 (ON LAT), the Ontario Licence Appeal Tribunal issued a decision finding that, due to her concussion diagnosis, the applicant’s injuries were not predominantly minor under the Schedule and thus were not subject to the $3,500 treatment limit under the Minor Injury Guideline.

The applicant showed symptoms consistent with a concussion shortly after the accident and received a concussion diagnosis from a family physician, the tribunal noted.

The respondent’s argument suggested that only a neurological specialist could confirm a concussion diagnosis. The opinion of a neurological specialist, while helpful, would not be necessary in this case, the tribunal responded.

Second, the tribunal denied the applicant’s request for $2,845.64 in relation to physiotherapy services. The applicant did not meet the required burden of proof to establish that the treatment plan was reasonable and necessary, the tribunal decided.

Specifically, the applicant failed to present sufficient evidence, including records of her previous physiotherapy sessions, to show that the proposed treatments would benefit her recovery, the tribunal said.

Third, the tribunal held that the applicant was not required to repay the income replacement benefits. The insurer failed to provide sufficient evidence, including detailed calculations or clear documentation, to verify the exact amount of overpayment and to substantiate the repayment claim, the tribunal explained.

Finally, the tribunal determined that the applicant was not entitled to any interest payments on overdue benefits. The tribunal found no benefits to be overdue.