Released Date: 07/06/2020
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:
J.M.
Applicant
and
Aviva Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam
APPEARANCES:
For the Applicant:
Loreto Scarola
Paralegal
For the Respondent:
Michael Silver
Counsel
HEARD:
By way of written submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1The applicant, [J.M] (“applicant”), was involved in a motor vehicle accident on May 28, 2017 (“accident”) and as a result of the accident the applicant suffered injuries including concussion. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). 1 The applicant was denied certain benefits by the respondent, Aviva Insurance Company (“respondent”), and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The respondent denied the applicant’s claim for benefits because it determined that all three proposed treatment plans for chiropractic services (“the plans”) from Health Plus Rehab Centre (“Health Plus”) are not reasonable and necessary. The applicant’s position is the opposite. The applicant has applied to the Tribunal for dispute resolution.
PRELIMINARY ISSUE – LENGTH OF APPLICANT’S SUBMISSIONS
3The respondent submits that I ought to refuse to consider the applicant’s submissions which exceed the 12 page limit in the Tribunal’s case conference Order. The applicant argues the 12 page limit does not apply to “evidence and case law” and the extra pages attached to the 12 are “case law and analysis”.
4The two extra pages of the applicant’s submissions are titled “case law and analysis” but actually contain a reference to one case followed by another nine paragraphs of commentary and quotations. I find these two extra pages primarily contain submissions and exceed the page limit in the Tribunal’s Order. I will disregard these two extra pages except for the case citation.
ISSES
5The issues to be decided in this hearing are:
i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?
ii. Is the applicant entitled to a medical benefit in the amount of $1,592.00 for chiropractic treatment recommended by Health Plus in a treatment plan (OCF-18) submitted on December 22, 2017 and disputed date of denial?
iii. Is the applicant entitled to a medical benefit in the amount of $1,320.00 for chiropractic treatment recommended by Health Plus in a treatment plan (OCF-18) submitted on September 28, 2018 and denied on October 10, 2018?
iv. Is the applicant entitled to a medical benefit in the amount of $796.00 ($1,800.00 less the partially approved amount of $1,004.00 for chiropractic treatment recommended by Health Plus in a treatment plan (OCF-18) submitted on September 13, 2017 and denied on September 15, 2017?
v. Is the applicant entitled to an award under Ontario Regulation 664 (“award”) because the respondent unreasonably withheld or delayed the payment of benefits?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant is entitled to all three disputed treatment plans with interest. The applicant is not entitled to an award.
LAW
7Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan he or she seeks is reasonable and necessary.2
ANALYSIS
Are the Applicant’s Injuries Under the Minor Injury Guideline (“MIG”)?
8I find based on the respondent’s submissions that the MIG does not apply to the applicant’s accident related injuries. The respondent conceded in its submissions that the MIG does not apply to the applicant’s accident related injuries but argues that the applicant still has the onus to prove that the plans are reasonable and necessary. In reply submissions, the applicant argues that the respondent’s concession on the MIG issue is determinative of the applicant’s entitlement to the plans. I disagree with the applicant. I agree with the respondent’s submission that the applicant still has to establish that the plans are reasonable and necessary. Therefore, I will consider the reasonableness and necessity of the plans.
9Based on the Tribunal’s case conference Order, there is a disputed date of denial of the plan submitted December 22, 2017 in