Release date: 04/07/2021
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:
Chester Morgan
Applicant
and
Aviva Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Robert Lamot, Counsel
For the Respondent:
Arijana B. Schrauwen, Counsel
HEARD:
by way of written submissions
OVERVIEW
1The applicant was involved in a motor vehicle accident on June 10, 2016 and sought medical and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”) from the respondent. The respondent denied the benefits because it concluded that the applicant’s injuries were predominately minor and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed with the respondent and applied to the Tribunal for resolution of the dispute.
2As per the explanation of benefits payable dated March 9, 20172, the applicant has exhausted the medical and rehabilitation benefits monetary amounts available to him under the MIG and therefore any further medical rehabilitation benefits above the MIG monetary limits would only be payable if the applicant’s injuries are found to be outside of the confines of the MIG. The respondent has raised a preliminary issue that some of the treatment plans in dispute are not properly before the Tribunal because the applicant did not apply to the Tribunal to resolve the dispute within two years following the denial of the benefits as per the Schedule.
ISSUES TO BE DECIDED
3The following substantive issues are in dispute:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?
b. If the applicant’s injuries are not predominately minor as defined, then:
i. Is the applicant entitled to receive a medical benefit in the amount of $1,320.81 for physiotherapy services, recommended by Toronto Medical Centre in a treatment plan submitted May 31, 2017 and denied by the respondent on June 5, 2017?
ii. Is the applicant entitled to receive a medical benefit in the amount of $1,995.33 for psychological services, recommended by Toronto Medical Centre in a treatment plan submitted May 10, 2017 and denied by the respondent on June 5, 2017?
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,672.11 for medical services, recommended by Toronto Medical Centre in a treatment plan submitted May 10, 2017?
iv. Is the applicant entitled to receive a medical benefit in the amount of $1,131.44 for physiotherapy services, recommended by Toronto Medical Centre in a treatment plan submitted July 27, 2016?
v. Is the applicant entitled to receive a medical benefit in the amount of $1,938.41 for medical services, recommended by Toronto Medical Centre in a treatment plan submitted July 27, 2016?
vi. Is the applicant entitled to receive a medical benefit in the amount of $1,371.81 for medical services, recommended by Toronto Medical Centre in a treatment plan submitted October 19, 2016?
vii. Is the applicant entitled to receive a medical benefit in the amount of $312.81 for chiropractic services, recommended by Toronto Medical Centre in a treatment plan submitted November 23, 2016?
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?
4The following preliminary issues are in dispute:
a. Is the applicant barred from proceeding with his claim for issues #iii to #vii listed above for failure to commence an application within two years after the respondent’s refusal to pay the amount claimed?
RESULT
5The applicant has not demonstrated that his impairments warrant treatment beyond the MIG. Accordingly, the applicant is not entitled to the disputed treatment plans. As no benefits are owing or withheld there is no order for interest or an award under Regulation 664.
6As the applicant is not entitled to the disputed treatment plans it is moot as to whether the applicant appealed the denial of those treatment plans within the time limits under the Schedule.
ANALYSIS
Applicability of the MIG
7The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00.
8Under section 18(2), an applicant may receive payment for treatment beyond the limits, but he must provide compelling medical evidence from a medical practitioner of a pre-existing medical condition documented before the accident, and evidence that remaining within the confines of the MIG will prevent maximal medical recovery. Similarly, an applicant may provide evidence of a psychological impairment or chronic pain to escape the MIG.
9The onus is on the applicant to show on a balance of probabilities that his injuries fall outside the confines of the MIG on one of these grounds. The applicant has failed to meet his onus for the reasons noted below.
10The applicant submits that as a result of the accident he sustained injuries to his neck, left shoulder, upper back, and lower back, that he experienced headaches, fatigue, nervousness, and anxiety and that he has functional limitations. However, the applicant does not point to any evidence that supports the above. The applicant has filed the clinical notes and records of the family doctor, that are illegible. The family doctor’s records indicate that the first visit following the accident was on August 29, 2016. The applicant has submitted no further records past July 14, 2018, as indicated in the letter from the family doctor. The applicant purports that he continued with physiotherapy; however, he does not provide his clinical notes or records and simply attaches the attendance sheet.
11Further, the applicant filed an ultrasound of the left shoulder that shows a partial thickness tear, however, there is no evidence before the Tribunal that the applicant injured his left shoulder in the accident. The applicant submits that the partial tear of the left shoulder is as a result of the accident. There is no information regarding the applicant’s immediate injuries following the accident and whether his left shoulder was injured as a result of the accident. The applicant listed the contents of a disability certificate in his submissions, which allegedly included an issue with the shoulder joint, however the submissions did not specify which shoulder the disability certificate referred to and the applicant did not provide the disability certificate as evidence. It is also well settled that submissions are not evidence. The ultrasound of August 29, 2016, of the left shoulder, that the applicant relies on is dated two months after the accident and, as per the OHIP summary, this is the first time the applicant visited any doctor following the accident. There is no evidence that would point out the cause of the tear and therefore there is no evidence that connects the partial thickness tear of the left shoulder to the accident.
12Similarly, there is no evidence of chronic pain, no evidence of psychological injuries, no evidence of functional limitations and no objective evidence that the applicant should be removed from the confines of the MIG. Therefore, the applicant has not met his burden to show that the injuries sustained in the accident are not predominantly minor injuries, as defined by the Schedule.
Preliminary Issues, Disputed Treatment Plans, Interest and Award
13With respect to the preliminary issue, as I have found that the applicant remains within the confines of the MIG, no further treatment plans are payable. Therefore, it is not necessary for me to determine if the treatment plans were disputed within the timeframe under the Schedule, as the result would be moot. As well, the applicant only makes submissions regarding the May 10, 2017 and May 31, 2017 treatment plans and asks that the Tribunal only consider those treatment plans; it appears that the applicant has withdrawn the balance of the treatment plans in dispute and, by extension, the preliminary issues that accompany those treatment plans.
14As I have found that the applicant’s injuries are within the confines of the MIG and there are no further medical and rehabilitation benefits available to the applicant, an analysis of whether the disputed treatment plans are reasonable and necessary is also not warranted as the MIG limits have been exhausted.
15As no benefits are owed, there is no interest owing and as no benefits are withheld, there is no basis for a s. 10 award.
ORDER
16The applicant’s appeal is dismissed in its entirety.
Date of Issue: April 7, 2021
Monica Chakravarti, Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- Respondent’s Brief, tab E, last paragraph of page 45 of the Brief.