Bangay v. Certas Direct Insurance Company, 2021 CanLII 19404

Released: March 4, 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:

John Bangay

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Michael Yermus, Counsel

Jaspreet Dhaliwal, Counsel

For the Respondent:

Jaskarn (Jay) S. Pabla, Counsel

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on March 21, 2018, and sought various benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Certas denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. Are the applicant’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 MIG?

b. Is the applicant entitled to $1,292.36, approved in the amount of $1,066.74, for chiropractic treatment recommended by Oshawa Physiotherapy and Rehabilitation Clinic in a treatment plan (OCF-18) submitted May 22, 2019 and denied on June 1, 2019?

c. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

d. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. As the MIG limits have been exhausted, he is not entitled to the balance of the treatment plan, interest, or an award.

ANALYSIS

Applicability of the MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $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.” An insured may be removed from the MIG if they can 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 combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5Problematically, despite the applicability of the MIG being a live issue in dispute, the applicant offered no submissions to demonstrate why he should be removed from the MIG. Indeed, his submissions are confined entirely to a discussion of the treatment plan and the award despite his application and the Case Conference Order indicating that the MIG was in dispute. It is well-settled that the applicant bears the onus of proof when seeking treatment beyond the MIG and he did not offer reply submissions to rebut Certas’ position. Based on his submissions, while there is no engagement with the MIG, it appears that his position for removal from the MIG, or at least entitlement to the treatment plan in dispute, is based on a combination of chronic pain and a pre-existing condition, but again, no clear guidance was provided.

6Accordingly, I cannot find that the applicant has demonstrated that treatment beyond the MIG is required. The Tribunal would have benefitted from assistance from the applicant instead of having to piece together his theory of the case. Other than complaints of back pain, it is unclear how the actual physical injuries sustained in the accident would fall outside the definition of a minor injury under the Schedule. The diagnostic reports indicated degenerative changes, the physiotherapy note in evidence indicates a ramping down of treatment and he has only barely reached the MIG limit in the three years post-accident. The brief reference to pre-existing conditions entail a 2016 wrist fracture, a 2018 ankle injury and perhaps sleep apnea, but the Tribunal was not directed to an opinion from a medical practitioner that these conditions would prevent the applicant’s maximal medical recovery if kept within the MIG in order to satisfy the requirements of s. 18(2). Accordingly, I find there is no indication in the file that his accident-related impairments should be considered outside of the definition of a minor injury under s. 3(1).

7The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment or if they meet three of the six criteria for chronic pain as provided by the AMA Guides. However, here, the Tribunal was not directed to a diagnosis of chronic pain or chronic pain syndrome and the applicant did not engage with any of the criteria under the AMA Guides. The applicant relates his back-pain flare ups to work and carrying his children, and the recent clinical notes indicate the applicant stated the pain is not serious enough for medication and that the MRI revealed no issues. While the duration of pain is one factor, this alone does not satisfy the applicant’s burden.

8While the applicant has fallen well-short of meeting his burden, I find Certas’ submissions were helpful in filling in some of the gaps. For instance, it submits that the applicant sustained a workplace injury to his lower back on or about March 21, 2019 while breaking up a fight and there is no evidence of the applicant undergoing any treatment for his accident-related injuries whatsoever between June 2018 until March 2019, a period of approximately eight months. Further, Certas submits that the applicant’s first prescription of Naproxen for pain did not come until May 7, 2020; that he only missed one week of work and has been continuously employed as a corrections officer since the accident; and that he has access to collateral benefits but has not produced the benefits policy despite Certas’ requests for same.

9Certas submits, and I agree, that the applicant’s pattern of treatment and activity is not at a level indicative of a non-minor injury. As a result, and in the absence of specific submissions to meet his burden of proof, the applicant has not proven on the balance of probabilities that his accident-related impairments justify removal from and treatment beyond the MIG.

Is the treatment plan reasonable and necessary?

10Having determined that the applicant has not demonstrated that removal from the MIG is required, an analysis of whether the treatment and assessment plan in dispute is reasonable and necessary is not required, as the MIG limits have been exhausted and Certas partially approved the treatment plan in dispute. The $225.62 remaining in the OCF-18 is not reasonable and necessary or payable. As no benefits are overdue, it follows that no interest is payable under s. 51.

Section 10 Award

11The applicant sought an award under s. 10 of O. Reg. 664, submitting that “it is clear that Certas unreasonably delayed payment of the necessary treatment and has deliberately ignored the medical evidence supporting the approval of the denied treatment plans.” Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.

12I find an award is not appropriate. The applicant was unsuccessful in meeting his burden of proof and has exhausted the MIG limits. In any case, I agree with Certas that the applicant has not demonstrated substantive entitlement to the benefits and that it approved treatment up to the MIG limits available. There was no unreasonable delay. Further, as there are no benefits payable, the Tribunal cannot order an award.

ORDER

13The applicant has not met his burden to demonstrate that treatment beyond the MIG is required. He is not entitled to the balance of the treatment plan, interest or an award. The application is dismissed.

Date of Issue: March 4, 2021

_________________________

Jesse A. Boyce

Vice Chair

Footnotes

O. Reg. 34/10, as amended.