|
Insurance - Auto - 'Minor Injuries'. Marcelo v. The Personal Insurance Company
In Marcelo v. The Personal Insurance Company (Ont Div Ct, 2026) the Ontario Divisional Court allowed a LAT SABS appeal, here brought against a finding that "an intracranial brain contusion fits within the definition of a “minor injury” under s. 3(1) of the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “SABS”)":Section 3(1) of the SABS
[10] Section 3(1) of the SABS defines a “minor injury” as follows:“minor injury” means 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; ....
The Statutory Context
The Minor Injury Guideline
[15] The definition of “minor injury” operates within a statutory scheme that limits treatment and rehabilitation benefits and provides structured benefits for minor injuries. This statutory scheme is set out in ss. 18(1) and (2) of the SABS and that is further clarified in the MIG. Section 18(1) expressly limits the amount of the medical and rehabilitation benefits as a result of an accident to $3500 for minor injuries in accordance with the MIG.
[16] In s. 3(1) of the SABS “Minor Injury Guideline” is defined as a “guideline, (a) that is issued by the Chief Executive Officer under subsection 268.3(1.1) of the Act and published in The Ontario Gazette, and (b) that establishes a treatment framework in respect of one or more injuries;”
[17] Superintendent’s Guideline No. 01/14 is the MIG. It specifies that the objectives of the Guideline include to “[s]peed access to rehabilitation for persons who sustain minor injuries in auto accidents” and “[b]e more inclusive in providing immediate access to treatment without insurer approval for persons with minor injuries as defined in the SABS and set out in Part 2 of this Guideline.”
[18] Section 3(1) of the SABS as well as s. 2 of the MIG explicitly identifies minor injuries as sprains, strains, whiplash-associated disorders, contusions [commonly known as bruises], abrasions, lacerations, and subluxations [which are partial dislocations of a joint], along with clinically associated sequelae. The MIG also includes a list of definitions that exclude certain injuries from the framework, as follows:(b) sprain means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear.
(c) strain means an injury to one or more muscles, including a partial but not a complete tear.
(d) subluxation means a partial but not a complete dislocation of a joint.
...
(f) whiplash associated disorder means a whiplash injury that:
(i) does not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and
(ii) does not exhibit a fracture in or dislocation of the spine. [19] The MIG prescribes a “functional restoration model” consisting of a 12-week treatment program for minor injuries. Some of the recommended interventions include home exercise programs, activity prescriptions, and mobilization and manipulation techniques.
[20] The MIG contains limited provisions for diagnostic imaging. Radiographs (X-rays) may be undertaken without insurer approval only under limited conditions, such as suspected bony injuries or degenerative disease.
....
[30] The Tribunal’s error is in failing to recognize that s. 3(1) of the SABS focuses on the nature of the injury, not on the degree of impairment that flowed from that injury. This is apparent from the wording used, which is “minor injury” not “minor impairment”. This is to be contrasted with the wording used in the section of the SABS dealing with catastrophic impairment. In that section, the focus is on the severity of the impairment that results from an injury. This is unlike s. 3(1) of the SABS, which is an injury-based definition.
[31] Thus, the question the Tribunal should have asked itself in interpreting s. 3(1) is whether an intracranial contusion is the type of injury that was encompassed by the minor injury guidelines, not whether the Insured’s impairment was minor.
[32] Having an injury-based definition is consistent with a policy choice to categorize certain injuries as being subject to a compensation regime that is to be administered in an efficient and low-cost way. To classify potentially serious injuries as minor based on the level of impairment suffered would be to undermine the choice that the legislature made to have a clear set of injuries that were to be dealt with pursuant to a separate regime. This in turn could lead to uncertainty and inconsistency.
[33] If the Tribunal had asked itself the right question – namely whether an intracranial contusion was the type of injury that was encompassed by the “minor injury” guidelines, the answer would have been “no”.
[34] First, including a brain contusion in the definition of “minor injury” does not promote the consumer protection purpose of the SABS, which is to reduce the economic dislocation and hardship suffered by people who have been injured in an automobile accident.
[35] The only diagnostic tool available under the MIG without insurer approval is an X-ray. The criteria for an insured person to undergo diagnostic imaging without prior insurer approval does not include brain contusions or the suspicion of a brain trauma. Further, it was not disputed that brain contusions cannot be diagnosed through an x-ray. Under the MIG, an insured who suffers from a brain injury does not have immediate access to the diagnostic tool that they need to diagnose their injury.
[36] The timeline set out in the functional restoration model embraced in the MIG (12 weeks), is a timeline that is also incompatible with a brain injury. It was not disputed that the degree of impairment from a brain injury may take some time to manifest itself.
[37] The recommended interventions that are part of the MIG restoration model - home exercise programs, activity prescriptions, and mobilization and manipulation techniques – may be wholly appropriate for musculoskeletal injuries but are wholly inappropriate for brain contusions. It was not disputed that a brain contusion is a brain injury that may cause loss of consciousness, cognitive defects, or long-term neurological complications – none of which can be addressed by stretching, exercise, or manual therapy.
[38] The $3500 limit prescribed by the MIG makes no sense for a person who has suffered a brain contusion. The accepted form of assessing what treatment is required for such an injury is a neuropsychological assessment. The cost of such assessments is considerably more than $3500. In this case, one of the benefits the Insured was seeking (which the LAT denied) was a neuropsychological assessment for $6,723.50.
[39] Second, the context of the word “contusion” in s. 3(1) in the statute makes it clear that the word is not to include a brain contusion.
[40] The word “contusion” appears in a list of injuries that are musculoskeletal in nature, injuries that are very different from a brain injury. A bruise to the thigh or elbow is very different than a bruise to the brain. The exclusions in the MIG definition are consistent with a legislative intent to capture injuries that are “minor” within the MIG. One of those exclusions specifically references brain injuries.
[41] Everything in the MIG model makes sense for musculoskeletal injuries in the way that it does not for brain injuries – the diagnostic tool, the monetary cap, the timeline for treatment and the recommended therapies.
[42] Finally, and very significantly, a brain contusion is an injury that on its own can satisfy the criterion for a catastrophic impairment in a person who is under 18 and is an injury that can form the basis for a catastrophic impairment designation in a person who is over 18. It is illogical that an injury that has the potential to be “catastrophic” can also be considered “minor”. . Mazaher Shams Nateri v. Economical Insurance Company
In Mazaher Shams Nateri v. Economical Insurance Company (Ont Divisional Ct, 2025) the Divisional Court comments on the level of SABS benefits allowable under and over the MIG:[2] The Appellant, Mazaher Shams Nateri, was involved in an automobile accident on December 13, 2000. He sought accident benefits from the Respondent, Economical Insurance Company, under the Statutory Accident Benefits Schedule, O. Reg. 34/10. Mr. Nateri was denied some benefits on the ground that his injuries fell within the Minor Injury Guideline (“MIG”) limit. The MIG caps medical, rehabilitation and attendant care benefits at $3500. Claimants outside of the MIG may qualify for up to $65,000 in medical, rehabilitation and attendant care benefits. . Baskaran v. Security National Insurance Company
In Baskaran v. Security National Insurance Company (Ont Divisional Ct, 2025) the Divisional Court dismissed an insured's SABS JR, here from a LAT finding that their injuries were 'minor'.
Here the court considers SABS 'minor injuries', and the 'Minor Injuries Guideline' (MIG):MIG
[9] Section 18 of the SABS states:Monetary limits re medical and rehabilitation benefits
18.(1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable … for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline.
(2) Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline. [10] Section 3(1) of the SABS defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associate sequelae to such an injury”. An 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 that will prevent them from achieving maximum recovery if kept within the confines of the MIG. . Dooman v. TD Insurance Co. ['pre-existing injury' - SABS s.18(2)]
In Dooman v. TD Insurance Co. (Ont Divisional Ct, 2025) the Divisional Court dismissed a joint appeal-JR (Yatar) proceeding, here of a SABS LAT ruling denying "medical and rehabilitation benefits beyond the $3,500 funding limit for minor injuries". These extracts also address the role of 'pre-existing injury' [SABS s.18(2)] as an exception to this $3,500 limit:[6] At issue between Mr. Dooman and TD was the applicability of the Minor Injury Guideline[1] (the “MIG”) to Mr. Dooman’s accident-related injuries and his entitlement to medical and rehabilitation benefits beyond the funding limit of $3,500 set out in s. 18(1) of the SABS. Section 18 of the SABS provides in part:Monetary limits re medical and rehabilitation benefits
18. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable … for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline.
(2) Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline. [7] A “minor injury’ is defined 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”: SABS, s. 3(1).
[8] Following TD’s payment of benefits to Mr. Dooman for treatment within the $3,500 funding limit, Mr. Dooman submitted additional treatment plans for medical and rehabilitative benefits. Among other things, Mr. Dooman alleged that he suffered from chronic pain as a result of the accident, requiring further treatment. TD denied payment of those further benefits on the basis that Mr. Dooman’s injuries were minor injuries that fell within the scope of the MIG.
....
[53] As previously noted, s. 18(2) provides an exception to $3,500 funding limit in s. 18(1) that applies if the insured person’s “health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury” if the injured person is subject to the MIG (emphasis added).
....
[57] It is evident from the text of s. 18(2) that there is no express requirement that the insured person’s pre-existing condition be exacerbated by the accident in order to fall within the exception from the $3,500 funding limit. However, it is clear from previous Tribunal decisions relating to s. 18(2) that the question of whether the accident exacerbated the insured person’s pre-existing condition would be a relevant factor in determining whether there was compelling evidence that the pre-existing condition will prevent the insured person from achieving maximal recovery from a minor injury: see Thelemaque v. Cooperators General Insurance Co., 2023 CanLII 74628 (Ont. LAT), at para. 22; Ahmed v. The Co-operators, 2023 CanLII 23614 (Ont. LAT), at paras. 10-12, 19-25. As well, with respect to the application of s. 18(2), Mr. Dooman argued before the Tribunal that his pre-existing neck and left shoulder conditions “were exacerbated by the accident”, relying on two clinical notes from his family doctor and Dr. Karmy’s report: Decision, para. 21. . Co-Operators Insurance Company v. Bennett
In Co-Operators Insurance Company v. Bennett (Div Court, 2023) the Divisional Court considered the 'minor injuries' SABS provisions and the Minor Injuries Guideline:[6] Ontario’s Motor Vehicle Legislation is governed by the Insurance Act, R.S.O. 1990, c. I.8. Section 268(1) of the Insurance Act deems that every motor vehicle insurance liability policy provides for the statutory benefits provided in the SABS.
[7] The LAT is a specialized tribunal with exclusive jurisdiction to resolve disputes “in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled”: Insurance Act, R.S.O. 1990, c. I.8, s. 280(3).
[8] Section 268.3 of the Insurance Act empowers the superintendent to issue guidelines on the interpretation and operation of the SABS.
[9] One such guideline issued by the superintendent is the Minor Injury Guideline (the “MIG”). The objectives of the MIG are to speed access to rehabilitation, improve utilization of healthcare resources, provide certainty around cost and payment for insurers, and be more inclusive in providing immediate access to treatment without insurer approval for those persons with minor injuries as defined in the SABS. The MIG sets out the goods and services that will be paid for by the insurer without approval if provided to an insured person who has sustained a minor injury.
....
The Statutory Framework
[11] “Minor injury” and the “MIG” are defined terms in the SABS:“minor injury” means 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;
“Minor Injury Guideline” means a guideline,
(a) that is issued by the Chief Executive Officer under subsection 268.3 (1.1) of the Act and published in The Ontario Gazette, and
(b) that establishes a treatment framework in respect of one or more minor injuries; [12] Section 18(1) of the SABS under the Insurance Act limits recovery for accident victims who suffer minor injuries benefits to a cap of $3,500 as follows:Monetary limits re medical and rehabilitation benefits
18. (1) The sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 plus the amount of any applicable harmonized sales tax payable under Part IX of the Excise Tax Act (Canada) for accidents that occur on or after June 3, 2019 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline. O. Reg. 34/10, s. 18 (1); O. Reg. 123/19, s. 2 (1). [13] An injured person like the respondent may be excluded from this limit or to the limits on good and services that are authorized under the MIG, by way of s. 18(2) of the SABS which reads:(2) Despite subsection (1), the limit in that subsection does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline. O. Reg. 34/10, s. 18 (2); O. Reg. 347/13, s. 1; O. Reg. 123/19, s. 2 (2). [14] In the case of more serious injuries, higher caps apply. These are set out in s. 18(3). The caps also apply to medical, rehabilitation and “where applicable” to attendant care benefits, (including assessments) by virtue of s. 18(5) of the SABS.
....
The LAT Decision
[20] In rejecting the appellant’s submission, the LAT found that once a claimant is removed from the MIG, the claimant is no longer subject to the limits under the MIG for minor injury claimants, and the test for services becomes what is “reasonable and necessary” under s. 14(2). The LAT concluded that the insurer cannot “split the determination” and continue to categorize the injuries as “minor” once an injured person has been removed from the MIG.
[21] The LAT also found that s. 14(2) does not mention attendant care assessments, but merely excludes attendant care benefits for minor injuries such that, in any event, this subsection did not prevent the respondent from being eligible for an assessment.
[22] Finally, the LAT found that the use of the language in s. 25(2): “impairments that are not a minor injury” does not support a simultaneous finding that a person has sustained a minor injury while being placed beyond the treatment limits of the MIG.
[23] The LAT emphasized the treatment plan provisions in s. 38(3), extracted above:I find the wording of s. 38(3)(c)(1)B is clear. Where there is an initial determination by an insurer that an insured suffered predominantly minor injuries, but, as a result of pre-existing medical conditions, the person no longer remains in the MIG or under the funding limits of the MIG. Once the determination has been made that H.B. is removed from the MIG based on pre-existing conditions, there is no further MIG discussion regarding her injuries and impairments. She now has access to the next level tier of funding for medical and rehabilitation benefits and assessments that are reasonable and necessary. Further, her impairments are no longer considered predominantly minor. [24] To summarize, the LAT’s interpretation of the scheme is that a minor injury alone means the claimant is subject to the MIG, and the other constraints that flow from this categorization. However, once a claimant is put into the unusual category of having suffered a predominantly minor injury, alongside a documented pre-existing medical condition that will prevent maximal recovery, they are both not subject to the MIG, and cannot be said to have an impairment that is solely or considered “predominantly a minor injury.” In other words, one must consider the entire description of their situation that includes a pre-existing medical condition and the expectation that the claimant is not expected to achieve maximal recovery if they are subject to the limits of the MIG.
[25] The appellant requested reconsideration on the basis the LAT had conflated the defined term “minor injury” with the MIG in interpreting the SABS as it applied to the respondent. The LAT rejected this submission and upheld the decision, finding that minor injuries are intertwined with the operation of the MIG framework. Once an insurer has removed a claimant from the MIG, whether it be because of “pre-existing injury, non-minor physical injuries or for psychological or chronic pain impairments (or any other such impairment not captured under the definition of a minor injury), there is no further reliance on any part of the MIG framework.
ANALYSIS
[26] I agree with the LAT’s analysis because it accords with the principles of statutory interpretation by reading the words of the SABS in their ordinary and grammatical meaning, in harmony with the scheme and object of the SABS, and in accord with the intention of the legislature. The LAT rejected the respondent’s piecemeal approach to interpretation, which would have separated minor injuries from the MIG constraints and applied this in a way to limit benefits payable to persons with a combination of pre-existing conditions, minor injuries from a motor vehicle accident and evidence that they could not achieve maximal recovery within the MIG constraints. This would lead to illogical results and treat those claimants as if they were still within the MIG, that is, as if they had “only” minor injuries. This illogical outcome is the result of focusing solely on the words in sections 14.2 and 25(2) of the SABS without regard to the other provisions dealing with the rehabilitation, treatment and assessment of persons found to have pre-existing conditions which would prevent maximal recovery by subjecting them to the MIG limits.
[27] The overall scheme of the SABS supports the LAT’s finding that claimants with minor injuries and their placement within the framework for treatment of only minor injuries under the MIG are intertwined concepts. This interpretation is consistent with the objectives of the MIG and the scheme of this insurance legislation. Having minor injuries alone functions as a limit on those claimants, both by keeping them within the MIG and by limiting their entitlement to in-home assessments.
[28] The LAT’s decision is consistent with its own jurisprudence, in which several claimants removed from the constraints of the MIG were found to be eligible for in-home assessments, because they were not merely suffering from a minor injury: See 17-006691 v. Unifund Assurance Company, 2018 CanLII 112106 (ON LAT) at para. 53; Polidori v. Motor Vehicle Accident Claims Fund (MVACF), 2021 ONLAT 19009160/AABS at paras. 23-24; 17-002589 v. Wawanesa Mutual Insurance., 2018 CanLII 83505 (ON LAT) at paras. 31-36.
[29] Moreover, the LAT’s interpretation is consistent with the consumer protection objective of insurance legislation: Smith v. Co-operators General Insurance Co. 2002 SCC 30 at para. 11.
|
