A successful outcome for the applicant demonstrates that the reconsideration process, while a high threshold, can serve as an effective remedy where the original adjudicator commits a clear factual error that is central to the decision.
Takeaways
The original adjudicator’s misunderstanding that a CT scan could confirm or deny a concussion was the dispositive error on reconsideration. This decision underscores the importance of understanding and educating the Licence Appeal Tribunal (LAT) on the medical purpose and limitations of diagnostic imaging. Second, the decision reinforces the value of consistent and well-documented neurological symptom reporting across multiple providers in building a concussion-based Minor Injury Guideline (MIG) escape case. Third, it highlights the potential vulnerability of section 44 opinions where the assessor did not review key treatment records, which proved helpful in undermining the respondent’s defence.
History of the Dispute
The applicant was injured in a motor vehicle collision on November 17, 2022, and sought benefits under the Statutory Accident Benefits Schedule (SABS). In the original written hearing decision, released on December 5, 2025, the LAT found the applicant was subject to the MIG, and, as a result, declined to consider the reasonableness and necessity of two disputed treatment plans. The applicant requested reconsideration on December 18, 2025, relying on Rules 18.2(a) and 18.2(b) of the LAT Rules, seeking a finding that he should be removed from the MIG and that he was entitled to the disputed treatment plans with interest.
CT Scan Misunderstanding
The reconsideration turned largely on a factual error made by the original adjudicator regarding a CT scan report of the applicant’s head. In the original decision, the LAT found that the CT scan “confirms the applicant did not suffer a concussion.” On reconsideration, Vice-Chair Mazerolle found this interpretation was incorrect. The CT scan had been ordered by the applicant’s family doctor, not to diagnose a concussion, but to “rule out” an intracranial bleed.
The scan report itself stated there was a “suspect concussion, but need to R/O bleed,” and the scan’s finding of no “acute intracranial abnormality” simply ruled out a bleed — it did not rule out a concussion. By misinterpreting both the purpose and the findings of the CT scan, the original adjudicator committed a factual error central to the dismissal of the applicant’s concussion-based MIG escape argument.
The respondent argued that the denial was based on the evidence and a lack of a confirmed concussion diagnosis, but the Vice-Chair rejected this reading of the original decision, finding it was clear that the CT scan (and the misunderstanding of same) played a major role in the MIG holding.
MIG Removal on Rehearing
The Vice-Chair exercised authority under Rule 18.4 to cancel the original decision and re-hear the entire dispute, ultimately finding that the applicant should be removed from the MIG based on his concussion sustained in the accident.
During his initial visit, the applicant’s family physician noted a suspected “whiplash phenomenon plus or minus concussion,” and he counselled the applicant regarding cognitive rest and avoidance of activities that exacerbated his headaches. It was noted the applicant had experienced an episode where he was “incapable of controlling his emotions,” which was thought to be potentially part of a concussion. While the applicant’s family physician’s initial assessment was inconclusive regarding a concussion, he subsequently opined in an OCF-3 that the applicant sustained “post-concussion syndrome” as a result of the accident.
The Vice-Chair placed significant weight on the consistency of the applicant’s reported neurological symptoms in the months following the accident, including headaches, cognitive fatigue, dizziness and visual issues. These symptoms were documented across multiple providers: a social work assessment, an occupational therapy assessment and ongoing records from the treating physiotherapy clinic. The physiotherapist had noted “mild visuomotor deficits” and the applicant’s report that his brain felt like it was “misfiring.” Taken together, the Vice-Chair found the consistency and extent of these reported neurological symptoms provided compelling support, on a balance of probabilities, that the applicant sustained an accident-related concussion.
The respondent did not specifically address the possibility of a concussion in its written hearing submissions, focusing instead on what it characterized as “limited” medical evidence and the conclusions of its section 44 assessors. The Vice-Chair gave little weight to the report of the respondent’s GP section 44 assessor, because the document review index did not include a review of the treatment records from the applicant’s treating physiotherapist, which provided a consistent account of the applicant’s neurological symptomology.
Treatment Plans
Having removed the applicant from the MIG, the Vice-Chair also went on to assess the disputed treatment plans. Both the occupational therapy services treatment plan and the physiotherapy and massage therapy treatment plan were found to be reasonable and necessary, with the exception of the provider travel time.
The Vice-Chair found the medical evidence connected the proposed services to the treatment of the applicant’s accident-related impairments, including headaches, physical pain and cognitive fatigue. The respondent’s reliance on their section 44 assessment report was again found unpersuasive, given the absence of treatment records considered as part of the assessment.
Interest and Award
Interest was found payable on all overdue benefits pursuant to section 51 of the SABS. However, the applicant’s request for an award under section 10 of O. Reg. 664 was denied, as the Vice-Chair stated that the insurer’s conduct is not measured against a standard of perfection and found that the insurer was entitled to rely on its review of the available medical evidence, including its expert reports, in making its MIG determination. Notably, the respondent was in non-compliance with the LAT’s production order (for the complete section 44 assessor file), however the Vice-Chair held that a party’s conduct during a proceeding before the LAT would be best addressed through other remedies, as the focus of an award is on the insurer’s adjusting practices.
