Court File and Parties

Date: 2017-10-17 Tribunal File Number: 17-001670/AABS Case Name: 17-001670 v The Dominion of Canada General Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

V. S. Applicant

and

The Dominion of Canada General Insurance Company Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: S.F. Mather

Appearances: For the Applicant: Kiro Soliman, counsel For the Respondent: Oren Barbalat, counsel

Heard in Writing on: July 20, 2017

OVERVIEW

1V.S. (“the applicant”) was involved in an automobile accident on October 31, 2016 and sought medical benefits for chiropractic and physiotherapy treatment pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

2The respondent took the position that the applicant’s injuries are predominantly minor injuries as defined in the Schedule subject to treatment within the Minor Injury Guideline (the “Guideline”) and denied the applicant’s claims for medical benefits over $3,500. Treatment within the Guideline is subject to a $3,500.00 limit (“the Cap”) and payment of the benefits would result in treatment costs beyond the Cap limit.

3The applicant disagreed with this decision, arguing that the applicant has a pre-existing condition that will prevent him from achieving maximal recovery under the Guideline, and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4The matter proceeded to a case conference on May 18, 2017 but the parties were unable to resolve the issues in dispute.

ISSUES TO BE DECIDED

5After reading the Case Conference Order and the submissions of the parties I find that I must decide the following issues:

1. Is the respondent prohibited from taking the position that the applicant has an impairment to which the Guideline applies?
2. If the answer to issue No.1 is no: Are the applicant’s injuries predominantly minor injuries as defined in s. 3(1) of the Schedule and, thus subject to a monetary limit of $3,500 pursuant to s. 18 of the Schedule?
3. Is the applicant entitled to receive a medical benefit in the amount of $1,294.03 for chiropractic services recommended by Healthmax Physio¹ in a treatment plan submitted on January 4, 2017² and denied by the respondent on January 18, 2017?
4. Is the applicant entitled to receive a medical benefit in the amount of $2,075.48 for chiropractic services, recommended by Healthmax Physio³ in a treatment plan submitted⁴ February 22, 2017, denied by the respondent on February 27, 2017?
5. Is applicant entitled to interest on the overdue payment of benefits?
6. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld of delayed payments to the applicant?
7. Are the applicant and respondent entitled to costs?

6V.S.’s application⁵ to the Tribunal lists two medical benefits as being in dispute. The dates of submission and denial for these benefits correspond to the medical benefits identified in the Case Conference Order⁶.

7In his submissions⁷ for this hearing the applicant identifies three treatment plans as being in dispute only one of which is identified in the Case Conference Order⁸. The respondent argues that the applicant submissions incorrectly list the issues in dispute. The applicant did not provide any reply submissions on this issue.

8I find that the issues before me are as listed in the Case Conference Order for the reason that the issues in the Case Conference Order correspond with the issues in the application to the Tribunal and the applicant has provided no explanation as to why he lists different issues in his submissions.

9One of the purposes of a Case Conference⁹ is to identify issues in dispute and I am of the view that once the treatment plans in dispute have been identified in the order sending an application for a hearing on the merits, additional issues cannot be added to the hearing without consent of the parties, or without the permission of the Tribunal. In this case the respondent does not consent. I note that the extra treatment plans put forward by the applicant were raised for the first time in