A recent decision by the Financial Services Commission of
Ontario reiterates that the onus to prove entitlement to benefits
and treatment outside of the Minor Injury Guideline rests with the
In Lo-Papa v. Certas Direct Insurance Company, FSCO
A12-005538 (May 14, 2014), the Insured Applicant was injured in a
motor vehicle accident on October 10, 2010. She applied for and
received Statutory Accident Benefits from Certas, her accident
Certas paid benefits up to the limits of the Minor Injury
Guideline (MIG) cap of $3,500, as provided for under the
Statutory Accident Benefits Schedule, and then refused
additional funding for treatment plans and assessments beyond the
The Applicant however alleged that her injuries entitled her to
further funding for a number of treatment plans and assessments
because her injuries fell outside the MIG.
The issue was whether the Applicant was subject to the Minor
Injury Guideline cap of $3,500. Arbitrator Arbus found that
she was. As such, the Applicant was not entitled to funding
for the treatment plans and assessments in dispute.
At the Hearing, the Applicant alleged that she suffered from
headaches, lower back pain, leg pain, moodiness, anxiousness, and
depression. The Applicant relied on the report of Dr. Jacobs,
a chronic pain specialist, who stated that the Applicant suffered
anxiety and depression since the accident.
In deciding the issue, Arbitrator Arbus reiterated that Section
38 of the Schedule states that in order to show that the
MIG does not apply, the Insured must provide a treatment and
assessment plan completed and signed by a regulated health
professional stating that the Insured Person's impairment is
not predominantly a minor injury. As set out by
Director's Delegate Evans in Scarlett v. Belair,
Arbitrator Arbus reiterated that the onus of proof is with the
Applicant to establish that the injury falls outside the Minor
In this case, it was noted that while Dr. Jacobs' report
opined that the Applicant suffered from lots of anxiety and
depression, at no time did he address whether the anxiety and
depression were sufficient to remove the injuries she suffered from
the Minor Injury Guideline. Arbitrator Arbus also noted that Dr.
Jacobs offered no opinion as to whether there was any pre-existing
medical condition that might be impeding recovery. Dr. Jacobs did
not address the question of whether the impairment was other than
predominantly a minor injury, or whether the Applicant's
symptoms were separate and distinct from her soft tissue injury
(and not clinically associated sequelae).
Arbitrator Arbus concluded that the burden of proof rests on the
Applicant and there was nothing provided by the Applicant which
satisfied the test of removing the injuries from being
predominantly a minor injury.
Overall, the decision in Lo-Papa is a good one.
It reinforces the fact that Arbitrators will not blindly accept
unsubstantiated assertions that an Insured should be out of the
MIG, there must be compelling evidence in that regard and at the
very least, an opinion addressing the requirements of
section 38 of the Statutory Accident Benefits
Schedule. If an Insured is unable to provide same, they
will not meet the burden of proof required under the
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