Released Date: 05/05/2021
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:
Fred Semafumu
Applicant
and
Unica Insurance Inc.
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Fred Semafumu, Self-represented
For the Respondent:
Domenic Nicassio, Counsel
HEARD:
Via written submissions
OVERVIEW
1F.S. was injured in an accident on September 24, 2015 and sought benefits from the respondent, Unica, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).1 F.S. applied for medical benefits that were denied by Unica because it determined that his injuries were predominantly minor and subject to the Minor Injury Guideline (“MIG”). F.S. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
2The following issues are in dispute:
a. Are F.S.’ injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG?
3If F.S.’ injuries are not predominantly minor, then I must determine the following:
a. Is the cost of examination expense in the amount of $2,486.00 for a chronic pain assessment, recommended by Optimal Assessment in a treatment plan (OCF-18) dated December 12, 2018, denied on January 4, 2019, reasonable and necessary?
b. Is the medical benefit in the amount of $3,271.00 for chiropractic treatment, recommended by Prime + Health Care Centre in an OCF-18 submitted December 21, 2018, denied on January 7, 2019, reasonable and necessary?
c. Is Unica liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to F.S.?
d. Is F.S. entitled to interest on any overdue payment of benefits?
FINDING
4F.S. has not demonstrated that his injuries warrant treatment beyond the MIG. Consequently, the disputed OCF-18s are not reasonable and necessary. As no benefits are payable, it follows that no interest or an award is payable.
BACKGROUND
5F.S. was represented by counsel from approximately January 20, 2016 to February 18, 2020, when he began to represent himself.
6His Tribunal application has been the subject of a previous Motion and Order related to F.S.’ non-attendance at nine s. 44 assessments. On February 12, 2020, F.S. was granted leave to proceed with the subject application.
7At a previous case conference, F.S. claimed that he never received a copy of his file from his previous lawyer. In response, Unica provided him with a complete copy of his accident benefits file. An electronic copy was sent on June 17, 2020 and a paper copy was sent on June 18, 2020.
8In addition, Unica submits that F.S.’s submissions breached the timeline set out in the Tribunal Order. His submissions were due on December 1, 2020 but were not served until December 7, 2020. No explanation was provided for the late service. Unica did not raise any issue regarding the late service of submissions, nor did it request any remedy for same or claim any prejudice as a result of the late filing. Further, F.S. provided no medical evidence with his submissions.
9The submissions focus on arguments on issues that do not directly address the disputed benefits, i.e., a history of events between the time of the accident and correspondence with Unica not related to the disputed OCF-18s.
ANALYSIS
Applicability of the MIG
10Section 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.”
11An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, removal from the MIG can occur under s. 18(2), if an insured has 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. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the onus is on the insured to demonstrate on a balance of probabilities that the injuries fall outside of the MIG.
12On the evidence, I find that F.S. failed to meet his burden to establish that he suffered injuries that were not predominantly minor as a result of the accident.
13I find against F.S. because he fails to direct me to any objective evidence of, a) the impact of his accident-related injuries; b) whether his injuries warrant treatment outside of the MIG framework; and c) the therapeutic value or restorative impact of the specific treatment he seeks, all of which in my view are minimal requirements where the MIG is disputed. It is not enough to simply cite symptoms or diagnoses and solely rely on the OCF-18s as evidence that an insured’s injuries are more than predominantly minor, or that the claimed treatment is reasonable and necessary. In my view some analysis supporting the proposed treatment is required to prove entitlement beyond the MIG limits.
14F.S. submitted no evidence or argument to support his claims for any of the disputed benefits. Essentially, he has failed to make a case for these benefits. Submissions are not evidence, and I conclude that the information contained in the submissions was not helpful because F.S. did not submit any evidence. He also failed to reply to Unica’s argument that his injuries do not warrant treatment beyond the MIG limit. As a result, it is unnecessary for me to set out Unica’s evidence or argument in defence of these claims.
ORDER
15F.S. has not proven that his injuries are not predominantly minor.
16F.S. has not established entitlement to any of the claimed benefits. As no benefits are overdue, no interest or an award is payable.
17The application is dismissed.
Released: May 5, 2021
Derek Grant
Adjudicator