Minor Injuries, Major Implications: Dooman Draws a Line on MIG Challenges
Dooman v. TD Insurance Co., 2025 ONSC 184, provides guidance from the Ontario Divisional Court on challenging Licence Appeal Tribunal (“LAT”) decisions under the Statutory Accident Benefits Schedule (“SABS”).
Background
Mr. Dooman was rear-ended in 2020 and sought accident benefits in excess of the $3,500 Minor Injury Guideline (“MIG”) cap. The LAT found his injures to be “predominantly minor”, rejected his chronic-pain and pre-existing condition arguments, and ultimately dismissed his application. Mr. Dooman unsuccessfully sought reconsideration of the decision by the LAT before launching a statutory appeal on questions of law under s. 11 of the Licence Appeal Tribunal Act and a parallel application for judicial review.
Issues on Appeal/Judicial Review
- Whether the LAT exceeded its jurisdiction or otherwise erred in law by rejecting the applicant’s chronic pain claim without deference to his expert’s medical expert.
- Whether the LAT misapplied the American Medical Association Guide (“AMA”) when it concluded that the AMA criteria for chronic pain were not met.
- Whether the LAT misinterpreted s.18(2) of the Statutory Accident Benefits Schedule (“SABS”) by focusing on “exacerbation” rather than on maximal recovery in consideration of pre-existing medication conditions.
- Whether the LAT discounting handwritten clinical notes as “mostly illegible” without prior notice to the parties amounts to a breach of procedural fairness.
Analysis
The court reiterated that the standard of review for pure questions of law is correctness and the standard for review for questions of fact or mixed fact and law is reasonableness. For judicial review, reasonableness is the presumed standard of review.
The Court found that the LAT was entitled to weigh the Applicant’s medical expert report against the record as a whole and is not bound to accept uncontradicted expert evidence.
The LAT’s treatment of criteria 3 and 5 was upheld. Criterion 3 deals with secondary physical deconditioning and criterion 5 addresses failure to restore pre-injury function. With regard to criterion 3, the Court found that it is not enough simply to avoid activity, but rather that the avoidance must be linked to fear. Further, the Court rejected the contention that criterion 5 requires total incapacity and accepted the LAT’s reliance on the evidence of the applicant’s part time work and participation in reactional activities.
Section 18(2) of the SABS outlines the following:
[…] 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.
The Court found that while there is no express requirement that the insured’s pre-existing condition be exacerbated by the accident in order to fall within the exception in 18(2), the question of whether an accident exacerbated the insured person’s pre-existing conditions is relevant 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.
The Court found that there was no breach of procedural fairness by the LAT’s finding that the clinical notes were “mostly illegible”. The Court noted that, in a written-hearing format agreed to by both parties, it is incumbent on the parties to file legible documents which are useful to the Tribunal. The LAT has no obligation to solicit clarification.
Disposition
The applicant’s statutory appeal and his application for judicial review were dismissed, with costs of $5,000 awarded to TD.
Takeaways
The Dooman decision provides insurers with a blueprint for resisting MIG challenges, emphasizing the evidentiary burden on claimants seeking to claim over the $3,500 cap.
Expert reports are not bulletproof; uncontested reports and opinions can be given little or no weight if the adjudicator finds that they are inconsistent with the body of evidence. Meticulous scrutiny of expert opinion is required, ensuring the underlying factual assumptions are thoroughly established.
Practical application matters. Meeting criteria on paper may be insufficient, so claimants must link each criterion to verifiable, contemporaneous evidence.
Pointing to a pre-existing condition will not suffice in the context of the MIG cap. Medical practitioners must explicitly state why the alleged condition will prevent maximal medical recovery and this opinion should be substantiated by pre-accident documentation.
Written Hearings require submission of clear and legible evidence that is useful to the Tribunal. This may necessitate providing typed transcriptions or affidavits. Breach of procedural fairness will not be presumed lightly.
Proactive gathering of evidence in relation to functionability, employment status, recreational participation, and activities of daily living can be the deciding factor in these kinds of cases. Claimant’s counsel should be wary of reliance on one-off expert reports that are unsupported by contemporaneous evidence.
For insurers, the decision in Dooman strengthens the feasibility of defending MIG cap cases where chronic pain or pre-existing condition arguments are reliant on a poorly documented body of evidence.