Tribunals Ontario Safety, Licensing Appeals and Standards Division
Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca
Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes
Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca
RECONSIDERATION DECISION
Citation: A.K. vs. Unifund Assurance Company, 2020 ONLAT 19-000966/AABS
Before: Brian Norris, Adjudicator
Date: August 14, 2020
File: 19-000966/AABS
Case Name: A. K. and Unifund Assurance Company
Written Submissions by:
For the Applicant: Jeton Memeti
For the Respondent: Mikhal Shloznikov
OVERVIEW
1The applicant, A. K., filed this Request for Reconsideration. It arises out of a decision in which I found the applicant sustained a minor injury as defined by the Schedule and was therefore not entitled to the disputed treatment and assessment plans because they proposed treatment outside the methodologies provided by the Minor Injury Guideline (“MIG”).
2The applicant makes the request pursuant to Rules 18.2 (a) and (b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure Version 1 (April 2016) (the “LAT Rules”). The applicant submits I erred in law by creating and applying an incorrect test to the issues in dispute. He submits the Tribunal would likely have reached a different decision had the error not occurred.
3In response, the respondent submits that I conducted the correct legal analysis and there is no basis for the applicant’s claim.
RESULT
4The applicant’s request for reconsideration is denied.
BACKGROUND
5As noted in the initial decision, the MIG is a treatment protocol available for injured persons who sustain a minor injury. Pursuant to section 18 of the Schedule, those who sustain a minor injury are subject to a $3,500.00 funding limit on treatment.
6Also noted in the initial decision is that once an insurer deems that the applicant’s injuries fall within the minor injury definition, the onus is on the applicant to prove that the MIG and the related funding limit should not apply.
7The applicant takes no issue with my determination that he suffered a minor injury. Instead, he submits that I failed to apply the correct test to determine whether the disputed treatment and assessment plans are reasonable and necessary.
ANALYSIS OF THE EVIDENCE AND THE TEST FOR ENTITLEMENT
8The applicant submits that I formulated a new test to determine whether the treatment plans are reasonable and necessary. He submits that I found that he discharged his onus of proving on a balance of probabilities that the medical benefits are reasonable and necessary by proving that he sustained soft tissue injuries. He adds that a Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnosis is not required to show that he suffered an injury that is not included in the minor injury definition. Lastly, the applicant submits that he provided sufficient evidence to justify further chiropractic treatment.
9The respondent submits that my first and primary determination to make was whether the applicant suffered a minor injury as defined by the Schedule. After determining that the applicant sustained a minor injury, it was not necessary to conduct an analysis of whether the treatment plans in dispute were reasonable and necessary because the treatment and assessment plans propose treatment beyond the $3,500.00 funding limit. Its position is that the minor injury determination was correct and made following a thorough review of the evidence that included the clinical notes and records (“CNRs”) of the applicant’s family doctor and treating facility, as well as the insurer’s examinations (“IEs”). It further submits that the applicant provided nothing to support his claim that there is sufficient documentation to justify further chiropractic treatment.
10I find no error of law in my analysis of the applicant’s injuries and the application of the funding limit.
11I applied the correct test when I determined that the applicant sustained a minor injury. I reviewed all the evidence and submissions before me and found no compelling evidence that the applicant sustained a psychological injury which would remove him from the minor injury definition. This decision was made following a review of the applicant’s evidence - his family physician’s CNRs, his treatment facility’s CNRs, and psychological assessment pre-screen report. I weighed his evidence, along with the IE report, on a balance of probabilities and found that it was not compelling evidence of a psychological injury which would warrant the applicant’s removal from the MIG. My analysis of the documents found no compelling evidence of a chronic pain condition or a pre-existing condition which would preclude his recovery within the MIG. While the applicant claims that I failed to consider all of the evidence, he identifies no document which was not considered.
12The applicant’s assertion that the treatment plans must be subject to the reasonable and necessary test fails to consider the application of the minor injury guideline and the funding limit on medical and rehabilitation benefits. It is unnecessary to analyze whether the treatment plans are reasonable and necessary because the applicant suffered a minor injury, is subject to the minor injury funding limit provided by section 18 of the Schedule, and the treatment plans propose treatment outside the MIG. In the initial decision, the applicant made no submissions on the application of the funding limit and failed to prove entitlement to treatment outside of the methodologies provided by the MIG.
CONCLUSION
13I conducted the correct legal analysis in the initial hearing. I considered all the submissions and evidence and found that, on a balance of probabilities, the applicant suffered a minor injury as defined by the Schedule. It is unnecessary to evaluate whether the treatment and assessment plans in dispute for the hearing are reasonable and necessary as they proposed treatment outside the framework of the MIG.
14The applicant’s request for reconsideration is dismissed for the reasons stated above.
Released: August 14, 2020
__________________________
Brian Norris
Adjudicator