Citation: Peart v. Wawanesa Insurance, 2021 ONLAT 19-011451/AABS

Released: February 16, 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:

Coleitha Peart

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Coleitha Peart, Applicant

Glen Bushi, Counsel

For the Respondent:

Wawanesa Insurance, Representative

Michael Unea, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an accident on September 18, 2018, and sought benefits from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Wawanesa denied the benefits on the basis of its determination that her accident-related impairments were predominantly minor injuries, subject to treatment within the Minor Injury Guideline (the “MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES

2The issues to be decided are as follows:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule?

ii. Is the medical benefit in the amount of $2,516.50 for physiotherapy services recommended by Excel Medical Diagnostics in a treatment plan (OCF-18), submitted on April 10, 2019 and denied on April 24, 2019, reasonable and necessary?

iii. Is the medical benefit in the amount of $2,235.94 for physiotherapy treatment recommended by Health Bound Health Network Inc. in an OCF-18 submitted on September 6, 2019, and denied on September 20, 2019, reasonable and necessary?

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

FINDING

3I find that the applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. Accordingly, she is not entitled to payment for the benefits in dispute as they are not reasonable and necessary. As no benefits are overdue, it follows that no interest is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

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 s. 3(1). The burden of proof lies with the applicant to demonstrate that their accident-related impairments justify removal from the MIG on a balance of probabilities. I find the applicant has not satisfied her burden to demonstrate that her accident-related impairments warrant removal from the MIG.

5The applicant submits that her claims are not covered by the MIG, because she has a pre-existing condition that meets the criteria for exemption from the MIG prescribed by s. 18(2) of the Schedule, as discussed below.

Does the applicant have a pre-existing condition that removes her from the MIG?

6An 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 prevents recovery if they are kept within the confines of the MIG.

7On June 26, 2017, the applicant participated in a consultation at Humber River Hospital. It was noted that she has a history of chest pain and relies on evidence of a 2016 cardiac workup which included a Holter monitor and stress test. The applicant submits that she continues to have chest pain and it is not associated with any activities. The applicant’s understanding is that it is musculoskeletal in origin. The applicant also has a history of anemia.

8Wawanesa submits that the applicant has failed to adduce any evidence that would support the applicant’s position that a pre-existing condition exists that would warrant removal from the MIG. I agree with Wawanesa for several reasons. First, the chest pain complaint from June 2017 is over one-year pre-accident and there are no subsequent reports of chest pain near the time of the accident. Second, the records from her treatment provider, Health Bound Network, show the applicant noted no pre-existing injuries or conditions. In addition, there are no other medical records that indicate that a pre-existing condition exists. Lastly, the applicant did not report any pre-existing conditions to the s. 44 assessors.

9I find that the applicant has failed to show that there is any evidence of a pre-existing condition that has been exacerbated by the accident. In addition, the applicant has failed to put forth any medical evidence that supports that her pre-existing condition would prevent her from reaching maximum medical recovery if she remained under the MIG, as is required under s. 18(2). Accordingly, I find she is properly within the MIG.

Are the treatment plans reasonable and necessary?

10Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.² On the evidence, it is not confirmed that the MIG limit has been exhausted, however, the sum total of the treatment plans exceeds the MIG limit. Despite this, I find that the applicant has failed to establish that the treatment plans are reasonable and necessary for the reasons set out below.

11The applicant’s submissions on the medical benefits lack any analysis of how the claimed OCF-18s were reasonable and necessary to address her alleged injuries. Aside from the OCF-18s and the hospital and treatment provider records, the applicant has failed to provide any compelling medical evidence in support of her claim for treatment. None of these documents offer evidence to support that the treatment she seeks is reasonable and necessary. There is no persuasive evidence to support any of her claims. I found nothing in her referenced documentation to assist me.

12I find that the applicant has failed to meet the burden of proof with respect to her medical benefits claims. Further, the applicant appears to rely mainly on her submissions, which are not evidence, in support of her claims for treatment. This does not meet the evidentiary onus.

13Accordingly, I do not find it necessary to set out Wawanesa’s rebuttal evidence or arguments. I note that Wawanesa provided evidence that all of its denials were based on medical evidence and reports from its own assessors and from the applicant’s claims documents. I see no reason to interfere with its determinations based on the evidence before me.

CONCLUSION

14The applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. Accordingly, she is not entitled to payment of the benefits in dispute as they are not reasonable and necessary. As no benefits are overdue, it follows that no interest is payable.

Footnotes

1. 1O. Reg. 34/10
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635.