Citation: Armstrong vs. Allstate Insurance Company of Canada, 2021 ONLAT 19-006437

Released Date: 01/13/2021

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:

Chevaughn Armstrong

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Nader Fathi, Paralegal – Did Not Appear

For the Respondent:

Lisa Quan; Counsel

HEARD: By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Chevaughn Armstrong (“applicant”), was involved in an automobile accident on March 16, 2018 (“accident”). The applicant sought benefits from the respondent Allstate Insurance Company of Canada (“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”). The applicant has applied to the Tribunal for dispute resolution.

2The respondent determined that 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. The respondent also submits that, even if the MIG is found not applicable, the applicant has not established that the proposed treatment plan is reasonable and necessary.

3Pursuant to the Tribunal’s November 26, 2019 case conference Order on consent of the applicant’s legal representative and counsel for the respondent, the applicant’s submissions and evidence for the written hearing were due May 29, 2020. The respondent’s submissions and evidence for the written hearing were due June 12, 2020. The applicant did not make any submissions.

ISSUES

4The issues to be decided in this hearing are:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the MIG?

ii. Is the applicant entitled to receive a medical benefit in the amount of $1,384.70 for physiotherapy recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan submitted May 5, 2019 and denied on May 22, 2019?³

RESULT

5The applicant’s application is dismissed. As no benefits are payable, no interest is payable. No costs are awarded to the respondent.

LAW

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 s. 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 s. 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 a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that 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.⁴

9Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.⁵

ANALYSIS

Are the Applicant’s Injuries Under the Minor Injury Guideline (“MIG”) and Is the Applicant Entitled to the Disputed Treatment Plan?

10The applicant bears the onus to prove that the applicant’s physical injuries are not within the MIG and also bears the onus to prove that the disputed treatment plan is reasonable and necessary. I find that the applicant has failed to meet this onus on both issues. The applicant did not serve and file any written submissions and evidence for the written hearing by May 29, 2020 as required.

11The respondent submits that the applicant has abandoned this claim and seeks an Order dismissing the application with prejudice against the applicant and an Order for costs.

12As the applicant has failed to put forward any written submissions and evidence for this hearing, there is no evidence to support the applicant’s application. As a result, I am unable to find that the applicant’s physical injuries are not within the MIG. I am also unable to find that the applicant has proven that the disputed treatment plan is reasonable and necessary. The applicant’s application is dismissed.

13The respondent requests costs in the amount of $1,000.00 because the applicant effectively abandoned this application without prior notice to the respondent or to the Tribunal forcing the respondent to file its submissions for the hearing in a vacuum. The respondent also submits that this is the applicant’s second application to the Tribunal disputing the MIG in which records were not produced.

14I decline to award costs to the respondent. The respondent concedes that the applicant withdrew the first application to the Tribunal. The applicant was entitled to do so. Having withdrawn the first application, the applicant’s conduct in that proceeding is not before me and is not relevant to the conduct of the applicant in this application. Based on the failure to file written submissions and evidence for this written hearing, I am not satisfied that the applicant’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Safety, Licencing Appeals & Standards Tribunal Ontario Common Rules of Practice & Procedure, October 2, 2017. No costs are awarded to the respondent.

Interest

15As no benefits are payable, no interest is payable.

ORDER

16For the reasons outlined above, the applicant’s application is dismissed. As no benefits are payable, no interest is payable. No costs are awarded to the respondent.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Referred to in this Decision as the “disputed treatment plan”.
4. 4Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).
5. 5Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).