W.P. v. Travelers Insurance, 2019 CanLII 110083

Citation: W.P. vs. Travelers Insurance, 2019 ONLAT 18-010458/AABS

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:

W.P.

Appellant

and

Travelers Insurance

Respondent

DECISION

ADJUDICATOR: Derek Grant

For the Appellant: Peter Carlisi, Counsel

For the Respondent: Erin Morgan, Counsel

Heard: In Writing Hearing: May 13, 2019

OVERVIEW

1The applicant (“W.P.”) was involved in a motor vehicle accident (“the accident”) on December 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2W.P. applied for benefits from the respondent (“Travelers”) and applied to the Licence Appeal Tribunal (the “Tribunal”) when his claims were denied.

3Travelers argues that all of W.P.’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 MIG”)². W.P.’s position is exactly the opposite.

4If Travelers is correct, W.P. is then subject to the $3,500.00 limit on 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.

5I must decide whether W.P.’s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine his entitlement to the medical benefits in dispute.

ISSUES IN DISPUTE

6Did W.P. sustain predominantly minor injuries as defined under the Schedule?

7If W.P.’s injuries are not within the MIG, then I must determine:

i. Are W.P.’s injuries predominantly minor injuries as defined in the s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

ii. Is the medical benefit in the amount of $98.25 for medication recommended in a treatment plan submitted on December 11, 2017 and denied on December 19, 2017, reasonable and necessary?

iii. Is the medical benefit in the amount of $2,356.20 for chiropractic services recommended in a treatment plan submitted on November 28, 2017 and denied on December 19, 2017, reasonable and necessary?

iv. Is W.P. entitled to interest on overdue payment of benefits?

FINDING

8Based on a review of all the evidence put before me, I find that W.P.’s injuries meet the definition of ‘minor’ under the Schedule, it is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.

REASONS & ANALYSIS

Minor Injury Determination

9Section 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.” The MIG defines in detail what these injuries mean.

10Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.

11The onus is on the applicant, in this case W.P., to prove that his injuries or impairments fall beyond the MIG³.

W.P. suffered physical injuries that do not take him outside of the MIG

12W.P. did not provide me any medical evidence that he sustained physical injuries in the accident which would remove him from the MIG. The Disability Certificate⁴ indicate W.P. was diagnosed with “lumbar spine sprain/strain, radiculopathy lumbar spine, lower back strain and sciatica” on a visit after the accident. W.P. submits that due to his sciatica, he should be removed from the MIG. I disagree.

13Dr. Garming Lai, Family Physician, saw W.P. on the date of loss. W.P. was diagnosed with low back sprain. Dr. Lai recommended rest and prescription medication. W.P. next saw Dr. Lai on May 19, 2017. Dr. Lai again diagnosing low back pain and prescribing Naproxen. W.P. does not direct me to any medical evidence to show that his accident-related injuries would prevent him from reaching maximum medical recovery under the MIG limits. Regarding the sciatica, there is no medical evidence to show that this impairment should remove W.P. from the MIG.

14I refer to the OCF-3 of Dr. Malatesta, under Part 8, question a): Prior to the accident, did the applicant have any disease, condition or injury that affected his ability to perform the activities listed under Part 6?⁵ Dr. Malatesta indicated ‘No’. Under Part 8, question b): Since the accident has the applicant developed any disease, condition or injury, not related to the accident, that could affect his disability? Again, Dr. Malatesta indicated in the negative.

15Neither Dr. Lai, nor Dr. Malatesta provide any objective evidence, or any supporting medical explanation that W.P.’s sciatica is significant enough to remove him from the MIG, or that the sciatica is of such a detriment that it would prevent W.P. from achieving maximum medical recovery with the MIG limit.

16W.P. also relies on a letter from Dr. Lai, dated April 4, 2019. Dr. Lai mentions that W.P. has a diagnosis of sciatica, which was worsened by the accident and for which W.P. is prescribed oral anti-inflammatories. There is no indication that Dr. Lai performed any testing, nor did W.P. provide me with or direct me to any medical evidence to support Dr. Lai’s letter.

17This evidence does not support that W.P. should be removed from the MIG. In addition, a treatment plan, without any supportive persuasive evidence is not enough to establish that a treatment plan is reasonable or necessary.

18To conclude, I find that W.P. has submitted no evidence from Drs. Lai or Malatesta or any other medical evidence which establish that his physical injuries are anything but predominantly “minor”.

19Because I conclude that W.P. has not met the onus on him to show that he suffered physical injuries that are not considered to be minor as a result of the accident, I find the claimed treatment plans are not reasonable and necessary.

CONCLUSION

20W.P. has not satisfied his onus to establish that his physical injuries are not predominantly minor.

21W.P. is not entitled to the treatment plans, or interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Disability Certificate (OCF-3) dated June 13, 2017 by Dr. Michael Malatesta, Chiropractor
5. 5Reference to Part 6 of the OCF-3 being the ‘Diability Tests and Information’ section of the form.