Licence Appeal Tribunal
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:
A.G.
Appellant
and
Coseco Insurance
Respondent
DECISION AND ORDER
PANEL:
Raj Sharda, Adjudicator
APPEARANCES:
For the Applicant:
A.G., Applicant
Michael Yermus, Counsel
For the Respondent:
Matthew Sutton, Counsel
HEARD:
In Writing on: May 6, 2019
REASONS FOR DECISION
OVERVIEW
1The applicant was involved in an automobile accident on May 29, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.
2The applicant sought medical benefits for a chronic pain program and a chronic pain assessment.
3The respondent has taken the position that the applicant’s injuries arising from the accident are predominantly minor injuries and are subject to the $3,500.00 cap under the Minor Injury Guideline (the “M.I.G.”).
4The respondent also takes the position that the applicant’s chronic injuries had subsided for 2 years and as such they are not resulting from the accident.
ISSUES IN DISPUTE
5The issues in dispute were identified and agreed to as follows:
(a) Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a cap of $3,500.00 and to treatment within the M.I.G.?
(b) Is the applicant entitled to receive a medical benefit in the amount of $6,395.74 for chronic pain program services recommended by Dr. Vladimir Levitin, chiropractor at Polyclinic Rehabilitation Institute Inc., in a treatment plan dated July 3, 2018, submitted on July 11, 2018, denied by the respondent on July 25, 2018?
(c) Is the applicant entitled to payments for the cost of examinations in the amount of $2,200.00 for a chronic pain assessment, recommended by Altaf Khimji, physiotherapist at Oshawa Physiotherapy & Rehabilitation Centre, in a treatment plan dated November 18, 2017, submitted on November 29, 2017, denied by the respondent on December 7, 2017?
(d) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant should be removed from the application of the M.I.G. as the chronic pain suffered by the applicant in her neck and left shoulder are not predominantly minor injuries.
7Furthermore, there is compelling evidence that applicant had a pre-existing medical condition, documented prior to the accident by her medical practitioner. These chronic injuries will prevent the applicant from achieving maximal medical recovery from the injuries which were exacerbated by the accident.
8The chronic pain injuries have continued over 4 years after the accident and therefore by definition are chronic. Based upon the pre-existing injuries which have become chronic as a result of the accident, the applicant’s injuries do not met the definition of minor injuries both due to there chronic nature and impediment to maximal recovery. As such, the applicant must be removed from the M.I.G. limits.
9It is my finding that the applicant is entitled to the chronic pain treatment plan and the chronic pain assessment as are both reasonable and necessary.
10The applicant is entitled to interest for the approved treatment plan and assessment.
LAW
The Minor Injury Guideline
i. “a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”
ii. Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person