Adjudicator notes family doctor, other parties did not know of a concussion
An adjudicator of the Ontario Licence Appeal Tribunal has found no legal error in classifying a cerebral contusion as a minor injury and no evidence that the contusion resulted in an impairment removing it from the minor injury definition.
In Marcelo v The Personal Insurance Company, 2025 CanLII 66339 (ON LAT), the tribunal’s adjudicator determined last Nov. 2 that the applicant’s injuries fell within the Minor Injury Guideline (MIG).
The adjudicator found that the applicant had no concussion, chronic pain, or head injury or pre-existing medical condition taking her out of the MIG.
According to the adjudicator, the applicant had a brain contusion within the definition of a “minor injury” under s. 3(1) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016).
On Dec. 11, 2024, the applicant asked for a reconsideration, variation, or rescheduling of the tribunal’s decision. She alleged that the definition of minor injury automatically excluded brain contusions.
The same adjudicator of the Ontario Licence Appeal Tribunal dismissed the request to reconsider upon finding no grounds to do so under r. 18.2(b) of the Licence Appeal Tribunal Rules, 2023.
First, the adjudicator saw no legal error in classifying a brain contusion as a minor injury and no evidence that the brain contusion resulted in a non-minor impairment excluding it from the minor injury definition.
The adjudicator concluded that the applicant’s brain contusion was amenable to speedy treatment within the MIG and was a “contusion” within the meaning of “minor injury” as defined by s. 3(1) of the Schedule.
To reach this conclusion, the adjudicator gave “contusion” its plain and ordinary meaning and broadly interpreted it to include brain contusions and all other kinds of contusions.
According to the adjudicator, the legislature did not define “contusion,” “abrasion,” or “laceration,” and set no threshold for when these injuries would no longer be minor.
The adjudicator noted that a brain contusion:
Based on the evidence, the adjudicator said the applicant did not report head-related issues, pain, or effects on her work to her family doctor within around three weeks of the accident, and did not inform her doctor or any other party that she had suffered a concussion.
The adjudicator added that the applicant resumed non-modified work within less than two months of the accident, and the employer did not need to modify her work duties.
The adjudicator also found that the applicant had no chronic pain or pre-existing medical condition removing her from the MIG.
The adjudicator then held that the applicant failed to prove her argument that the interpretation of “contusion” was illogical, incoherent, and incompatible with the definition of “catastrophic impairment.”
The adjudicator also rejected the applicant’s argument that the legislature’s failure to include “intracranial contusions” in the definition of “minor injury” meant that all brain contusions were not minor injuries.
Lastly, the adjudicator saw no factual error in rejecting the applicant’s argument that her intracranial contusion represented intracranial pathology significant for traumatic brain injury.
