17-006581 v. Unifund Assurance Company, 2018 CanLII 110951

Date: 2018-07-20

Tribunal File Number: 17-006581/AABS

Case Name: 17-006581 v Unifund Assurance 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:

Applicant

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

APPEARANCES:

For the Applicant: Alan Clausi, Counsel

For the Respondent: Damien Van Vroenhoven, Counsel

Heard in Writing and by Teleconference: April 30, 2018

OVERVIEW

1The applicant claims that as a result of the accident on March 24, 2016 he experienced significant physical and psychological issues such that his impairment does not fall within the Minor Injury Guideline (the “MIG”). ¹ The applicant claims he is out of the MIG because of his pre-existing condition with high blood pressure, chronic pain and psychological impairment.

2The applicant applied for attendant care benefits, and after the date of a second accident (March 9, 2017), submitted a claim for a medical benefit for occupational therapy services, and the cost of an in-home, a psychological and a physiatry assessment. All three of these were denied by the respondent because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline. The applicant’s position is the opposite.

3The respondent denies the applicant has met the burden of proof to establish his impairment falls out of the MIG. The respondent takes the position that the applicant is not entitled to the claimed benefits for attendant care, occupational therapy services or the in home, psychological and physiatrist assessments as these fall outside of the amount for medical benefits allocated under the Minor Injury Guideline (MIG).

4If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary.

5If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

6Further, section 14.2 of the Schedule restricts the payment of attendant care benefits (ACBs) to persons whose injuries are not minor as defined by the Schedule. Accordingly, if I find that the applicant’s injuries are minor, I will not need to determine whether his claim for ACB is reasonable and necessary.

7The applicant was injured in a second accident on March 9, 2017. The applicant denies the second accident caused his injuries and maintains his impairment would not have occurred but for the March 24, 2016 accident.² He takes the position that the second accident aggravated his injuries.

8The respondent takes the opposite position and maintains the applicant did not establish that the first accident caused his alleged injuries and impairment.³

9The applicant gave evidence by affidavit dated March 7, 2018 and was cross examined on the affidavit at a hearing held by teleconference on April 30, 2018. All other evidence was submitted by way of written submissions with attached documentary evidence.

ISSUES

10The following are the issues to be decided:

a. Did the applicant sustain predominantly minor injuries as defined by the Schedule?

b. Is his entitlement to benefits limited by the MIG?

11If the applicant’s injuries are not within the MIG, then I must determine the following issues:

a. Is the applicant entitled to an attendant care benefit in the amount of $281.82 per month from March 24, 2016 to date and ongoing?

b. Is the applicant entitled to a medical benefit for $3,088.22 for occupational therapy services recommended by Natasha Cochrane of Functionability Rehabilitation Services submitted June 26, 2017 and denied on July 6, 2017?

c. Is the applicant entitled to the cost of an assessment for $ 1,995.32 for a psychological assessment recommended by Dr. Tasleem Damji of Ricci and Associates in a treatment plan submitted July 18, 2017 and denied on August 2, 2017?

d. Is the applicant entitled to the amount of $1,682.82 for an In-home assessment recommended by Natasha Cochrane of Functionability Rehabilitation Services submitted April 24, 2017 and denied on May 10, 2017?

e. Is the applicant entitled to the cost of an assessment for $ 2,460.00 for a physiatry assessment recommended by Dr. Alex McKee in a treatment plan submitted September 18, 2017 and denied on September 18, 2017?

12Is the respondent liable to pay an award under Regulation 664, Automobile Insurance⁴ (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

13Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

14I find that the applicant’s injuries fall within the MIG. His entitlement to benefits is limited by the MIG.

15The applicant is not entitled to an attendant care benefit as his impairment falls within the MIG. For the same reason, he is not entitled to receive payment for a medical benefit for occupational therapy services and the costs of the assessments for the in-home, psychological and physiatry assessments as his entitlement to the benefits claimed is limited by the MIG limits. It is therefore unnecessary to consider the reasonableness of the treatment plans in issue.

16The applicant is not entitled to an award for unreasonably held or delayed payments under section 10 of Ontario Regulation 664.

17No interest is payable as there are no overdue payments.

Analysis

Minor Injury Guideline

18Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury and includes any clinically associated sequelae to such an injury.”

19Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500. The onus is on the applicant to show that his injuries fall outside of the MIG. ⁵

Did the applicant sustain predominantly minor physical injuries?

20The applicant claims he is out of the MIG due to:

i. a pre-existing condition of high blood pressure

ii. a psychological impairment

iii. concussions and post-concussion syndrome and chronic pain

21I find based on the evidence that the injuries sustained from the March 24, 2016 accident are predominantly minor and thus entitlement to benefits is limited to the amount of $3500.00.

Is the applicant out of the MIG due to a pre-existing condition?

22Under section 18(2) an applicant to be removed from the MIG and the limit on treatment to $3500.00 must provide compelling evidence of a pre-existing condition documented by a health practitioner and that the pre-existing condition will prevent maximal recovery from the minor injury. ⁶

23A pre-existing condition will not automatically exclude a person’s impairment from the MIG. The applicant must present compelling evidence using a Treatment and Assessment Plan (an OCF-18) with attached medical documentation, if any, prepared by a health practitioner that shows the impairment will prevent maximal recovery.

24In this matter, the applicant claims the March 24, 2016 accident aggravated his pre-existing high blood pressure condition, which he has had since childhood, and that this prevents him from reaching maximum medical recovery.⁷

25The applicant did not present compelling evidence with attached medical documentation prepared by a health practitioner that shows the impairment will prevent maximal recovery. The evidence presented consisted of the following:

a. On March 25, 2016, the applicant attended the emergency department of the hospital and was diagnosed by the emergency department with whiplash and hypertension urgency. He also reported anxiety. ⁸ Whiplash is a defined minor injury condition. The doctor in the emergency department noted elevated blood pressure. The applicant was prescribed heat and Tylenol, for pain. He declined medication for the high blood pressure.

b. On March 26, 2016 due to elevated high blood pressure the applicant returned to the emergency department and this time accepted medication for his high blood pressure. He was advised to follow up with his family doctor. There are no further notations of physical injuries.⁹

c. The emergency hospital report of March 26, 2016 also noted that the applicant looks well with no acute distress.¹⁰

d. The applicant saw his family doctor on April 19, 2016. The family doctor noted the accident and fact that the blood pressure medication had worked. There was no further notation of any accident related physical or psychological injuries. The doctor renewed the blood pressure medication on February 15, 2017. ¹¹There is no indication in the family doctor notes that the blood pressure is an ongoing concern or was due to any injuries sustained from the accident.

e. The applicant during cross-examination agreed there is no evidence this condition impeded his recovery.

I find the applicant did not present compelling evidence to support his position that due to the injuries sustained his pre-existing blood pressure condition prevented him from reaching maximal medical recovery.

Is the applicant out of the MIG due to psychological impairment?

26The applicant claims that he sustained a psychological injury (injuries) as a result of the accident and as such he is out of the MIG. The definition of a minor injury does not include psychological impairments.

27I find the applicant does not have a psychological impairment from the accident that takes him out of the MIG.

28The applicant’s evidence that he sustained a psychological injury is based on an OCF-18 ¹² dated July 18, 2017 for a psychological assessment recommended by Dr. Damji, psychologist. The applicant in his affidavit ¹³ stated that due to anxiety he consulted with a psychologist. He admitted during his cross examination that this did not occur until after the second accident. On September 18, 2017, he attended for a psychological assessment with Dr. Damji. Dr. Damji completed his assessment following a clinical interview and symptoms told to him by the applicant. Dr. Damji states in his report dated September 28, 2017 ¹⁴ there was “no observable depressive or anxiety symptoms during the interview.” The doctor noted the applicant had difficulty remembering dates about the accident. Dr. Damji was not able to administer any psychometric tests such as the Beck Depression Inventory, Beck Anxiety Inventory, Accident Fear Questionnaire, Pain Disability Index, Coping Strategies Questionnaire and the Detailed Assessment of Post-Traumatic Stress.¹⁵ Dr. Damji stated in his report ¹⁶ that he would have administered these standardized tests but the applicant refuse to complete them No explanation is provided by the applicant in his affidavit or cross examination on why he refused to complete these tests.

29Dr. Damji concluded based on the interview and symptoms reported to him by the applicant that the applicant had post-accident persistent pain, depression, anxiety, vehicle anxiety, and sleep difficulties. He concluded the applicant suffers from an adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder with predominant pain, persistent and severe.¹⁷ He concluded the applicant’s impairment was out of the MIG.

30The respondent questions the validity of Dr. Damji’s evidence and asks the Tribunal to give his conclusions little or no weight as they are based on the subjective reports only with no psychometric testing. The respondent submits that psychological assessments that lack psychometric testing have not been considered to be persuasive and have been given little or no weight by adjudicators.¹⁸ Lack of testing is a flaw in that it can lead to inconsistencies with other clinical findings. In this case, the respondent states the Beck Depression Inventory and Beck Anxiety Inventory would have assisted in measuring degrees of depression and anxiety claimed to be suffered by the applicant and further, his claim that he sustained a concussion, post-concussion syndrome and chronic pain syndrome. It also could outline exaggerations of symptoms reporting.¹⁹

31I agree with the respondent that the absence of the psychometric testing reveals a flaw in the conclusions reached by Dr. Damji and do not support his finding of a psychological impairment arising from the accident in issue. Dr. Damji noted during the interview that the applicant showed no signs of observable depressive or anxiety symptoms. Moreover, the absence of the Beck Depression Inventory, Beck Anxiety Inventory, and Accident Fear Questionnaire would be useful to measure any reported depression and anxiety. In this instance, the psychometric was not completed and Dr. Damji’s conclusion the applicant suffers from an adjustment disorder with mixed anxiety and depressed mood is not sound and is questionable.

32The family doctor notes do not reflect any complaint made of psychological impairment following the accident. The emergency hospital records noted the applicant had anxiety following the accident. There is no indication in the hospital records that the applicant was advised to seek follow up treatment for the anxiety. The OHIP summary does not show the applicant sought treatment for a psychological impairment.

Does the applicant have a concussion or post-concussive issues?

33The MIG definition of a minor injury does not include a concussion and or post-concussion syndrome. The applicant must present evidence to support his claim that as a result of the accident he suffered a concussion which will take him out of the MIG.

34There is no evidence presented of a diagnosis of a concussion or a post-concussion syndrome arising from the accident. The applicant indicated in his affidavit that he was scheduled to see a neuropsychologist on June 4 and 5, 2018 but at the time of this hearing, we do not have the results of this examination or any indication of why it was required and if the examination relates to the injuries from the March 24, 2016 accident.

35The evidence from the applicant as reported to Dr. Aiello, the respondent’s IE assessor, is that he hit his head on the back of the seat at time of impact. He was wearing a seat belt. There is no notation of this in the emergency records or family doctor notes of a concussion. The applicant relies on the recommendation from his second treating physiotherapist that he obtain a referral from his family doctor as he was exhibiting signs of a post-concussion syndrome. He also reported symptoms to Dr. Aiello.²⁰

36In June 2016, the applicant began seeing Makram Guirguis, physiotherapist at a new location which he stated in his affidavit was closer to his home. The applicant stated to Dr. Aiello that he changed physiotherapists as he did not feel he was progressing from the treatment from his first physiotherapist. The applicant reported visual disturbances and dizziness to Mr. Guirguis. Based on these reports, the physiotherapist completed a cervical thoracic assessment, a concussion/mild brain injury assessment and Rivermead post concussions symptom questionnaire. In reviewing these results, the physiotherapist suggested to the applicant that he may have sustained a post-concussion syndrome. ²¹

37On June 16, 2016, the physiotherapist, Makram Guirguis wrote to the applicant’s family doctor and indicated that the applicant’s reported symptoms involving visual disturbances, dizziness etc. would support a post-concussion syndrome. The physiotherapist stated that the syndrome should be investigated by a neurologist. The family doctor stated in his clinical notes that he told the applicant that the physiotherapist had referred the issue of a potential post-concussion syndrome to him. This was never investigated. No explanation is provided by the applicant to explain why this was not investigated by the family doctor or referral provided.

38During cross examination, the applicant stated never saw his family doctor about a concussion or post-concussion syndrome. The clinical notes of the family doctor show only a few visits to the doctor and contain no reference, diagnosis relating to a concussion or post-concussion syndrome.

39Anne Marie Sioris, the physiotherapist who initially provided physiotherapy treatment to the applicant, beginning in April 2016 reported the applicant had suffered whiplash and suffered low back pain and pain in the lumbar spine. No complaints of pain or injuries by the applicant are noted by the physiotherapist to indicate a concussion. The physiotherapist completed an OCF 1, Application For Accident Benefits, dated May 24, 2016 ²² and an OCF 23 dated April 25, 2016 ²³ In the OCF 1, Ms. Sioris indicates the applicant’s injuries are minor injuries. On April 25, 2016, she noted in the OCF 23 that the applicant’s injuries which included low back pain were consistent with injuries falling within the MIG. ²⁴ There is no reference to a concussion.

40The respondent relies on the assessment completed by Dr. Aiello, the insurer’s IE assessor to support its position that the injuries are minor and do not include a concussion. On August 15, 2016, the applicant attended a section 44 physician assessment with Dr. Aiello, general practitioner, who reported in his report dated August 29, 2016, ²⁵ that the applicant had sustained mild cervical and lumbar muscle strain and concluded his injuries fell within the MIG. The doctor noted that the applicant reported to him that his symptoms which included headaches, mild memory loss, neck and back pain had improved by 80%. ²⁶

41On July 31, 2017 and on February 14, 2018, Dr. Aiello completed section 44 addendum reports. In his reports of July 31, 2017 and February 14, 2018 ²⁷, Dr. Aiello’s was asked to assess whether his opinion of August 2016 remained unchanged. He was asked to review a number of reports including the assessments by Doctors Damji and McKee. Dr. Aiello in his addendum reports stated that his opinion that the applicant did not exhibit signs of a concussion from the March 24, 2016 accident and that the injuries sustained are minor remained unchanged. Dr. Aiello stated that the “current clinical picture does not accurately depict the claimant that he medically examined on August 15, 2016”. He did not believe that the applicant’s current and reported symptoms are related to a possible concussion. The applicant did not show any objective signs of any post-concussion related impairment. ²⁸

42The applicant asks the Tribunal to question Dr. Aiello’s findings and asks that Dr. Aiello not be qualified as an expert under Rule 10.2 of the License Appeal Tribunal Rules of Practice and Procedure and the Tribunal not admit his reports into evidence. The applicant relies on a FSCO decision ²⁹ in which the arbitrator had determined in that case that Dr. Aiello was not an expert. The Tribunal is not bound by a FSCO decision.

43Dr. Aiello was asked to complete an insurer examination in August 2016 to determine if the applicant’s injuries are within the MIG. I find he has sufficient qualifications ³⁰ as a general medical practitioner to make that determination and his reports are admitted into evidence with respect to the issue of MIG and issue of a concussion. As to the issue of a concussion, Dr. Aeillo is not a neurologist. This raises a query on whether he is qualified to opine regarding a concussion. I find that he has the professional qualifications, experience and education to assess if the applicant is exhibiting signs of a concussion or post-concussion.

44The applicant could have obtained a report from a neurologist to confirm his claim that as a result of the March 24, 2016 he sustained a concussion. He did not. He relies on the recommendation from his physiotherapist which is a recommendation only and not pursued by the applicant or family doctor. I prefer the evidence of the general medical practitioner over the evidence of the physiotherapist on this issue. Based on the totality of the evidence, I find there is insufficient evidence of a concussion to take the applicant out of the MIG.

Does the applicant suffer from chronic pain such that he is removed from the MIG?

45The applicant submits that as a result of the accident he suffers from chronic pain, which removes him from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions. Chronic pain must be a continuous or of such severity that it causes distress accompanied by a functional impairment or disability.³¹

46In assessing the applicant’s claim of chronic pain, I note there is no diagnosis or assessment of chronic pain that was submitted into evidence. The physiotherapy records from April to September 2016 do not support a finding of chronic pain. The applicant referred in its submissions to a notation by Mr. Guirguis in his records that indicated the injuries were chronic. This is not sufficient to show a continuous condition or one that causes distress accompanied by a functional impairment or disability.

47Dr. Damji in his report found the applicant has a somatic symptom disorder with predominant pain, persistent and severe. This opinion was obtained after the second accident but more important is the fact that the applicant refused to complete the Pain Disability Index, and Coping Strategies Questionnaire which would measure any reported complaints of severe pain. As a result I find that Dr. Damji’s conclusion that the applicant had a somatic symptom disorder is unpersuasive.

48Dr. Aiello confirmed that as of August 2016 and in his addendum reports of July 2017 and February 2018, in his medical opinion, the injuries were in MIG and thus not chronic. The physiotherapist, Marie Sioris also confirmed the same.

49The applicant relies on the report of Dr. McKee, physiatrist, but there is no diagnosis of chronic pain in his report. I find that there is no evidence that the applicant suffers chronic pain that takes him out of the MIG.

50The applicant has not established that, even if accepted, chronic pain from the first accident affected his activities of normal living. On July 6, 2017, the applicant submitted a section 25 attendant care report and an Activities of Normal Life Form (OCF-12) dated April 11, 2017 to support a claim for attendant care. ³² In the OCF-12 dated April 11, 2017 the applicant completed the form and indicated that before the March 9, 2017 accident he was capable of performing his activities of daily living ³³ which includes his personal care activities, being able to drive, sit, stand, do shopping, cleaning, etc. In cross examination, the applicant was questioned about how he completed the form. He testified that he was confused when he completed the document and thought the questions related to the March 24, 2016 accident. I do not accept the applicant’s explanation and find the OCF 12 speaks for itself. The OCF 12 indicates that by March 9, 2017 the applicant was not suffering from chronic pain and fully capable of performing his normal activities of life. In paragraphs 13 to 16 of his affidavit the applicant refers to a number of injuries including dizziness, losing balance, general weakness, sleep disturbances, nausea, vomiting, noise sensitivity , shoulder pain, back pain, neck pain, jaw pain, numbness in his face, pain in the thigh and more. I find in accepting the information provided in the OCF 12 that these injuries other than the back and neck pain and dizziness are not from the first accident and arose after the March 9, 2017 accident.

51The most compelling evidence advanced by the applicant to support his position that his injuries are severe and take him out of the MIG is a physiatry assessment completed by Dr. McKee, physiatrist, who submitted a treatment and assessment plan ³⁴ for a physiatry assessment. The applicant stated in his affidavit and during cross examination that due to ongoing pain, he consulted Dr. McKee on September 18, 2017. Dr. McKee noted in his report dated October 12, 2017 ³⁵ that based on reported symptoms, the applicant suffered from headaches, rib pain, low back pain, shoulder pain, knee pain, TMJ, and he had nightmares of the accident. He reported his injuries were improved only 20% from the time the respondent denied his benefits. This contradicts the statement by the applicant to Dr. Aiello that by August 2016 that his symptoms were 80% improved. Dr. McKee concluded the primary cause of the injuries sustained by the applicant were from the March 24, 2016 accident aggravated by the March 9, 2017 accident.

52I find that Dr. McKee’s conclusions are questionable for several reasons. First, he did not examine the applicant until one and a half years after the first accident. On this basis I find it difficult to accept, and I question, the reasonableness of his conclusion that the first accident was the major and primary cause of the injuries.

53Moreover, his report is based on reported symptoms with no objective testing. He found the injuries were not minor and not within the MIG. He noted the applicant reported symptoms consistent with traumatic brain injury, post-concussion syndrome and emotional difficulties.

54Dr. McKees report includes a reference to newly identified injuries which includes a reference to knee pain, rib pain, TMJ and nightmares. These were not noted in the medical report or records of the family doctor, emergency hospital records, and reports of the physiotherapists. I find these are new injuries and not from the relevant accident.

55On March 9, 2017, the same day as the second accident, the applicant attended at the emergency department of the hospital. An X-ray was taken of the cervical spine. The X-ray results were normal. No focal alignment abnormality or fractures were noted. The emergency hospital records noted the applicant had neck pain, shoulder pain, neck swelling and back pain. He was prescribed as a neck collar. There was no complaint of chronic pain. The family doctor records do not refer to chronic pain.

56The applicant is a registered practical nurse and at the time of the accident worked on a full-time basis (30 hours a week) as a personal support worker. At the time of the first accident, he claims he was independent in his activities of daily living. He was married with three children. He was off work for one week. On this basis he was advised he was not entitled to a claim for income replacement. ³⁶ He did return to work on a part-time basis only and returned to full-time duties in June 2016. ³⁷ Although he returned to work full-time, the applicant maintains that he needed assistance from his colleagues to perform some of his employment tasks which included lifting patients, providing patients with medications, etc. He was off work for a few days only after the second accident on March 9, 2017 returning to his full time duties on March 12, 2017. He indicated he needed assistance from his colleagues to perform his employment tasks but presented no additional evidence to support that claim.

57The applicant testified he had to continue working to support himself and family. I accept that but find despite his injuries he was able to return to work on a full time basis.

58The applicant submitted after the second accident a treatment plan for an In Home Assessment which is in dispute and was denied on May 10, 2017. The occupational therapist, Natasha Cochrane, noted his impairment at that time was not MIG. The applicant, she noted, suffered post-concussion syndrome, neck stiffness and strain and sprain of the lumbar spine. She noted there was significant issue with chronic pain limiting his normal life activities.

59On June 26, 2017, the occupational therapist Natasha Cochrane, noted his impairment was not within the MIG and she recommended a treatment plan for occupational therapy which is in dispute and denied on July 6, 2017. She noted continued physical pain symptoms including neck pain, shoulder pain mid and low back pain, lower leg pain, headaches, dizziness, reduced balance, blurred vision, difficulty sleeping, reduced short-term memory, difficulties with nightmares, anxiety, and depression. Once again I note these allegations of injury arose after the second accident and are consistent with the applicant’s reported injuries as noted in the OCF 12.

Causation

60Lastly, I disagree with the applicant that causation is not an issue. Causation is an issue. The applicant is required to establish under the “but for” test that as a result of the March 24, 2016 accident he suffered the alleged injuries and impairment. Both parties agree this is the correct test to apply.

61I find the applicant did not establish that but for the March 24, 2016 accident he would not have suffered the alleged injuries and impairment. There are new and alleged non-MIG injuries which were not caused by the March 24, 2016 accident and arose after the March 9, 2017 accident.

62Based on my finding that the applicant’s injuries from the relevant accident are in MIG, he is not entitled to the claim for attendant care and he is not entitled to the four treatment plans in dispute as MIG has been exhausted. As such I do not need to assess entitlement to an attendant care benefit claim ³⁸ and whether the treatment plans are reasonable and necessary.

63The applicant raised an argument that the attendant care benefit should be deemed to have been incurred ³⁹ and relies on section 3(8) of the Schedule, which provides that the Tribunal may deem an expense incurred if the Tribunal finds an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit. The respondent maintains the applicant did not present evidence to establish this. ⁴⁰ I agree. In any event, in light of my finding on entitlement to the attendant care benefit I do not need to address the issue.

Claim for an Award under Section 10 for Unreasonably Held or Delayed Payments

64The applicant claims he is entitled to an award for unreasonably held or delayed payments due to the respondent’s failure to provide its assessor with the complete medical file of the applicant and its failure to carefully review the medical evidence that suggested the applicant had a serious psychological impairment that required treatment.

65Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

66Having found that the applicant is within the MIG and therefore not entitled to the benefits he claims, there is no basis on which to make an award. The applicant’s award request is dismissed.

CONCLUSION

For the reasons outlined, I find that:

66The applicant’s injuries are minor and he is governed by the MIG; as a result he is not entitled to any of the benefits he claims. His appeal is denied.

67The applicant is not entitled to an award for unreasonably held or delayed payments under section 10 of Ontario Regulation 664.

68No interest is payable as there are no overdue payments.

Released: July 20, 2018

Thérèse Reilly, Adjudicator

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Reply submissions of the Applicant, paragraphs 27 and 28.
3. 3Written submissions of the respondent, paragraphs 42, 43.
4. 4R.R.O. 1990, Reg. 664
5. 5Scarlett v. Belair, 2015 ONSC 3635, paragraph 24.
6. 6Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.
7. 7Written submissions of the applicant, paragraphs 3, 27.
8. 8Written submissions of the applicant, paragraph 25.
9. 9Emergency records of Queensway Carleton Hospital, paragraphs 2 and 3 of written submissions of the applicant, Emergency hospital records dated March 25 & 26, 2016 and March 9, 2017 attached as Exhibits S, T and U to the Applicant’s Affidavit of March 7, 2018.
10. 10Emergency hospital record of March 26, 2016, Page 6.
11. 11Applicant written reply submissions, paragraphs 11 and 12.
12. 12Affidavit of the applicant, Exhibit H.
13. 13Affidavit of the applicant, paragraph 26.
14. 14Affidavit of the applicant, Assessment Report, Exhibit BB.
15. 15Written submissions of the respondent, paragraph 52. Supplementary written submissions of the respondent, dated April 27, 2018, paragraphs 1 and 2.
16. 16Written submissions of the respondent, Dr. Damji’s report at tab 24.
17. 17Assessment Report of Dr. Damji, dated September 28, 2017 and Addendum Report of Dr. Damji dated April 4, 2018, admitted into evidence by Order of the Tribunal dated April 27, 2018. See also supplementary submissions of the respondent, paragraphs 4 and 5.
18. 18Supplementary submissions of the respondent dated April 27, 2018, paragraph 3.
19. 19Supplementary submissions of the respondent dated April 27, 2018, paragraphs 9 and 18.
20. 20These are listed in the written reply submissions of the applicant, paragraph 4.
21. 21Written submissions of the applicant, paragraph 7.
22. 22OCF 1, Application for Accident Benefits, Respondent Document Brief, Tab 13.
23. 23The OCF 23 states the applicant’s injuries are in MIG. Written submissions of the respondent, tab 18.
24. 24Written submissions of the respondent, paragraphs 14 and 15.
25. 25Report of Dr. Aiello, dated August 29, 2016. Written submissions of the respondent, Tab 4.
26. 26Written submissions of the respondent, paragraph 17.
27. 27July 31, 2017 and February 14, 2018 Addendum Reports of Dr. Aiello, Respondent Document Brief, Tabs 21 and 22.
28. 28Written submissions of the respondent, paragraphs 21, 22. Tab 21 the physician addendum report of Dr. Aeillo prepared July 17, 2017.
29. 29Reply submissions of the applicant, paragraph 26. See Dadi & Aviva Canada Inc., FSCO A16-004703.
30. 30Resume of Dr. Aiello, Respondent Document Brief, Tab 27.
31. 31Respondent’s written submissions, paragraph 33, Respondent’s Brief of Authorities, Tab 3, 16-000438 and the Personal Insurance, Ont. LAT.
32. 32Written submissions for the respondent, paragraph 8. The respondent states the form was submitted for the claim on the second accident.
33. 33Written submissions for the respondent, paragraph 20. Cross examination of the applicant, April 30, 2018.
34. 34Affidavit of the applicant, Exhibit J.
35. 35Affidavit of the applicant, Exhibit DD.
36. 36Written submissions of the respondent, paragraph 10. Affidavit of the applicant, paragraph 5.
37. 37Written submissions of the applicant, paragraph 7. Written submissions of the respondent, paragraph 61.
38. 38I also note that no OCF 6 expense forms or invoices for the attendant care benefit were submitted by the applicant to the respondent to demonstrate the expense was incurred.
39. 39Reply submissions of the applicant, paragraph 31.
40. 40Written submissions of the respondent, paragraphs 39, 63 and 64.