Released Date: 11/03/2020
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:
Wook Hyun Cho
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Jae Hyon Cho, Counsel
For the Respondent:
Francine Papadopoulos, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Wook Hyun Cho (the “applicant”) was involved in an automobile accident on March 31, 2017 and sought benefits from Security National Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
(i) Did the applicant sustain predominantly minor injuries as defined under the Schedule?
(ii) If the answer to the first question is no, is the applicant entitled to medical benefits in the following amounts for chiropractic treatment recommended by North York Physiotherapy Clinic in treatment plans (OCF-18s) submitted and denied on the specified dates?
(a) $1,295.77 submitted on June 29, 2017 and denied on July 12, 2017;
(b) $1,561.02 submitted on September 7, 2017 and denied on September 19, 2017;
(c) $1,295.75 submitted on December 7, 2017 and denied on December 20, 2017.
(iii) Is the applicant entitled to interest on any overdue payment of benefits as requested for the amount of $1,295.77 for the first treatment plan in dispute denied on July 12, 2017?
RESULT
4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit. Therefore, he is not entitled to the treatment plans in dispute as the MIG limits have been exhausted. Interest is not payable as I do not find that any payments are overdue.
BACKGROUND
5On March 31, 2017, the applicant was a pedestrian walking through a crosswalk when he was struck by a vehicle on his right side. Paramedics arrived and he was transported to a hospital. X-rays were taken and revealed no fractures and the applicant was discharged on the same day. He experienced pain in his right knee, leg, shoulder, elbow, right jaw, lower back and left buttocks.
6Following the accident, the applicant commenced treatment pursuant to the MIG. He now seeks a finding that his injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.
7The MIG limit has been exhausted.
ANALYSIS
Do the applicant’s impairments fit within the MIG?
8Section 3 of the Schedule provides the following definition of a minor injury:
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.
9Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that his impairments are not minor and not subject to the $3,500.00 cap. For the reasons that follow, the applicant failed to meet his onus.
10The applicant failed to submit an evidentiary record in support of his position that he should be removed from the MIG or that he is entitled to the disputed treatment plans. The applicant fell far short of meeting his onus that his accident-related impairments fall outside of the MIG or that the treatment plans in dispute are reasonable and necessary. The applicant’s submissions were five pages in length and provided a summary of his accident-related impairments; however, he did not submit any evidence to support those submissions, nor did he clearly set out his argument with respect to why any impairment he has removes him from the MIG. The applicant refers to diagnostic imaging and clinical notes and records in his submissions, but he did not submit these records or any evidence for this hearing. Nor did the applicant submit any evidence to support that he has a pre-existing condition which would prevent him from achieving maximum medical recovery within the MIG.
11The applicant quotes s. (15)(1) of the Schedule which sets out the different types of medical benefits payable under the Schedule (if deemed to be reasonable and necessary). The applicant then states given the above definition the treatment plans are reasonable and necessary. However, there was no analysis with respect to why. In my view, this argument did not make legal sense. Further, he did not submit the treatment plans in dispute or refer to the evidence that he relies upon to support that same are reasonable and necessary. However, this is the test that must be met.
12For the above reasons, the applicant has not met his onus in proving on a balance of probabilities that his accident related impairments are not minor or that additional treatment is required.
ORDER:
13For all of the above reasons, I order as follows:
(i) The applicant sustained a minor injury;
(ii) The applicant is not entitled to the disputed treatment plans or interest.
(iii) The application is dismissed.
Released: November 3, 2020
Rebecca Hines
Adjudicator