Licence Appeal Tribunal File Number: 20-000065/AABS
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:
Eleonor Perez
Applicant
and
Travelers Canada The Dominion of Canada General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Stefan Juzkiw, Counsel
For the Respondent:
Jane Cvijan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1E.P. was involved in an accident on February 6, 2018, and sought various benefits from the respondent, Travelers Dominion, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule''). Travelers Dominion denied the benefits on the basis that it determined that E.P.’s accident-related impairments were predominantly minor injuries and therefore limited to treatment within the Minor Injury Guideline (the “MIG”). E.P. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
2The issues in dispute are as follows:
a. Are E.P.’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
b. Is E.P. entitled to services recommended by Mediwise Healthcare, in treatment plans (“OCF-18s”) as follows:
i. $2,650.72 for chiropractic treatment, in an OCF-18 dated July 26, 2018?
ii. $2,619.04 for chiropractic treatment, in an OCF-18 dated December 4, 2018?
iii. $1,920.53 for chiropractic treatment, in an OCF-18 dated August 21, 2018?
iv. $2,230.52 for chiropractic treatment, in an OCF-18 dated March 6, 2019?
v. $2,255.66 for chiropractic treatment, in an OCF-18 dated August 27, 2019?
c. Is E.P. entitled to interest on any overdue payment of benefits?
FINDING
3E.P. has not demonstrated that her accident-related injuries and impairments justify removal from the confines of the MIG. Since the MIG limits have been exhausted, she is not entitled to payment of the treatment plans or interest.
ANALYSIS
The Minor Injury Guideline
4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are capped at $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” 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.” In order to be removed from the MIG, an insured must establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition supported by compelling medical evidence stating that the condition precludes recovery if they are kept within the MIG limits. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may be grounds for removal from the MIG. In all cases, the burden of proof lies with the applicant.
5To prove on a balance of probabilities that she should be removed from the MIG, she relies on a Disability Certificate (OCF-3) from her family physician, Dr. Yang, a pre-screen psychological report, diagnostic testing results, a consultation report by her pre-accident treating psychiatrist, Dr. Nicolici, and a chiropractic assessment. E.P. submits that this medical documentation demonstrates that she suffered from pre-existing impairments which were exacerbated by the accident and prevent her from recovery under the MIG. In addition, E.P.’s position is that her diagnosed chronic pain and psychological impairments are not predominantly minor injuries.
6Travelers Dominion submits that the records which E.P. relies on support that she was diagnosed with predominantly minor injuries