Oluseyi Oromitan v. Western Assurance Company, 2020 CanLII 45520

Citation and Parties

Citation: O.O. v. Western Assurance Company, 2020 ONLAT 19-007171/AABS

Released Date: 06/22/2020

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:

Oluseyi Oromitan

Applicant

and

Western Assurance Company

Respondent

Decision and Order

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Arvin Gupta Paralegal

For the Respondent:

Rozlien Youkhana Brikha Counsel

HEARD:

By way of written submissions

Reasons for Decision and Order

OVERVIEW

1The applicant Oluseyi Oromitan ("applicant"), was involved in an automobile accident on March 2, 2018 ("accident") and 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 Western Assurance Company ("respondent") and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service ("Tribunal").

2The respondent determined 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 ("MIG").² Further, even if the MIG is found not applicable, the applicant is not entitled to the disputed treatment plan because it is not reasonable and necessary. The applicant has received benefits to the full limits of the MIG. The applicant has applied to the Tribunal for dispute resolution.

ISSUES

3The Tribunal's case conference Order made November 20, 2019 provided for a combination hearing consisting of written portion and an in-person cross-examination of the applicant scheduled for February 10, 2020. There was no affidavit filed for this hearing so no cross-examination took place. This hearing was heard solely in writing.

4The 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 and rehabilitation benefit in the amount of $3,613.79 for physiotherapy treatment recommended by Healthmax in a treatment plan (OCF-18) submitted on October 22, 2018 and denied on October 30, 2018?

iii. Is the applicant entitled to interest on the overdue payment of the above medical and rehabilitation benefit?

RESULT

5The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit which has already been expended. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is owed.

LAW

The Minor Injury Guideline

6The MIG establishes a treatment framework available to an injured person who sustains a "minor injury" as a result of an accident. A "minor injury" is defined in section 3(1) of the Schedule 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". Under section 18(1) of the Schedule, injuries that are defined as a "minor injury" are subject to a $3,500.00 funding limit on treatment.

7To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of "minor injury". The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

ANALYSIS

9I find that the applicant's physical injuries are minor injuries. The applicant submits that her injuries are not predominantly minor and says that she continues to suffer from her injuries resulting from the accident including reduced range of motion. The weight of the evidence before me is that the applicant's injuries are predominantly minor.

10In the March 8, 2018 and July 17, 2018 Disability Certificates, OCF-3s completed by applicant's physiotherapist at Healthmax, Mary Jane Calzado, notes injuries including sub-acute injury of muscle and tendon at neck level, sub-acute sprain and strain of shoulder joint, thoracic spine, lumbar spine, hip, unspecified chest pain and psychological and behavioural factors associated with disorders or diseases "classified elsewhere". Ms. Calzado notes that the disability is anticipated to last 9-12 weeks.

11In his March 9, 2018 referral certificate to Healthmax, Dr. Tai diagnoses headaches and soft tissue injuries and refers for "motor vehicle accident rehabilitation".

12In the October 22, 2018 Treatment Plan, OCF-18 ("disputed treatment plan"), the applicant's chiropractor, Dr. Takallou, indicates that the applicant does not have predominantly minor injuries, and that she has difficulties with prolonged sitting, standing, walking, bending forward, lifting and care giving activities for her son and daily living activities. However, Dr. Takallou cannot medically diagnose. There is no medical diagnosis which supports Dr. Takallou's conclusion. The applicant's physical injuries fall within the definition of "minor injury". However, the applicant argues that she has other conditions that remove her from the MIG.

Does the applicant have psychological impairment as a result of the accident?

13I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from psychological impairment justifying treatment beyond the MIG. Applicant's physiotherapist, Mary Jane Calzado in the disability certificates notes "psychological and behavioural factors associated with disorders or diseases classified elsewhere" but this is not a medical diagnosis of psychological impairment. In the disputed treatment plan Dr. Takallou, indicates that the applicant has "psychological issues as reported by the patient since MVA". However, the applicant has failed to produce any medical diagnosis of psychological impairment resulting from the accident.

14Although the applicant filed a receipt for prescriptions, this is not helpful evidence of psychological or other impairment without an explanation from the prescribing physician Dr. Tai. Many of the prescriptions listed appear unlikely to relate to injuries from the accident such as, for example, ferrous fumarate, Koffex cough syrup, and scalp lotion.

15There is no evidence before me that the applicant reported to Dr. Tai any psychological issues arising out of the accident or that he made referrals for psychological assessment or treatment.

Does the applicant have chronic pain as a result of the accident?

16I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from chronic pain justifying treatment beyond the MIG. Although there is some reference to pain in the notes of Healthmax, there is no evidence of further investigation of chronic pain. There is no evidence that the applicant consulted her family physician about chronic pain. There is no diagnosis of chronic pain by any chronic pain specialist. The burden of bringing forward persuasive medical evidence of her alleged condition is on the applicant and she has not done so.

Medical Benefit: Is the treatment plan reasonable and necessary?

17Having found that the applicant has not proven on a balance of probabilities that she has a condition that would remove her from the MIG, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.

Interest

18As no benefits are payable, no interest is payable.

ORDER

19For the reasons outlined above, I find that the applicant's injuries are predominately minor injuries that fall within the MIG as defined by the Schedule. As no benefits are payable, no interest is payable. The applicant's claim is dismissed.

Footnotes

1. 1O. Reg. 34/19
2. 2Minor Injury Guideline, Superintendent's Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.