Licence Appeal Tribunal File Number: 20-008300/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:
Elie Frage
Applicant
and
Co-Operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Elie Frage, Self-Represented
For the Respondent:
Susan Guigovaz, Claims Representative
HEARD:
By way of written submissions
BACKGROUND
1The applicant was injured in an automobile accident on June 13, 2018, and sought benefits from the respondent, Co-Operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”). Co-Operators denied the treatment plan in dispute and took the position that the applicant sustained minor injuries that were subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.
2This written hearing was scheduled for May 31, 2021 on consent after the parties attended for a Case Conference on November 30, 2020. The Order provided that the applicant’s submissions and evidence were due May 3, 2021, with Co-Operators submissions to follow on May 17, 2021. On February 22, 2021, the Tribunal was advised that the applicant’s representative had gotten off the record. The Tribunal sought clarification on whether the applicant would be proceeding as a self-represented party or would be seeking new representation. The applicant advised that they were unsure. Despite several follow-ups by the Tribunal, the applicant did not file submissions or evidence by the deadline and has not responded to the Tribunal’s communications since. While Co-Operators provided its submissions in a timely manner, the applicant did not present a case.
ISSUES IN DISPUTE
3The following issues are in dispute:
i. Did the applicant sustain predominantly minor injuries as defined in s. 3 of the Schedule and is therefore subject to treatment within the MIG?
ii. Is the applicant entitled to $2,791.72 for chiropractic services recommended by Pro Life Wellness in an OCF-18 dated June 27, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not met their burden of demonstrating that they sustained an impairment that justifies removal from the MIG or that the OCF-18 in dispute is reasonable and necessary. No interest is payable.
ANALYSIS
5To receive treatment beyond the $3,500 limit provided by the MIG, it is well-settled that the applicant must demonstrate that their accident-related impairments are not predominantly minor injuries, as defined by s. 3(1) of the Schedule, or that they have a pre-existing condition that prevents their recovery if they are kept within the MIG, under s. 18(2). The Tribunal has also determined that chronic pain or psychological impairments may justify removal from the MIG.
6As the applicant failed to provide submissions or evidence to support their claim, it follows that the applicant has failed to meet their burden of proof. The only evidence before the Tribunal are the OCF documents and a Hospital Emergency Report that were provided by Co-Operators. The impairments listed in these documents are identified as WAD-II and sprain and strain injuries to the applicant’s shoulder, back and neck. Section 3(1) defines a minor injury as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” On the evidence before me, and without submissions identifying the grounds for removal from the MIG, these impairments fall squarely within the definition under s. 3(1). As a result, I cannot find that the applicant sustained an impairment that justifies removal from, or treatment beyond, the MIG.
Is the treatment plan reasonable and necessary?
7To receive payment for a treatment plan under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant has not demonstrated that removal from the MIG is required and it is my understanding that the MIG limits have been exhausted. Accordingly, an analysis into whether the OCF-18 is reasonable and necessary is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.
CONCLUSION
8The applicant has not met their burden of demonstrating that they sustained an impairment that justifies removal from the MIG. The OCF-18 in dispute is not reasonable and necessary and no interest applies. The application is dismissed.
Released: December 3, 2021
Jesse A. Boyce
Vice-Chair