Villanueva v. Intact Insurance Company, 2021 CanLII 43542

Villanueva v. Intact Insurance Company

Citation: Villanueva v. Intact Insurance Company, 2021 ONLAT 20-003230/AABS Released Date: 05/19/2021

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:

Humberto Villanueva Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice Chair

APPEARANCES:

For the Applicant: Dhiren R. Chohan, Counsel

For the Respondent: Nickola Haddad, Counsel

HEARD: Via written submissions

OVERVIEW

1The applicant was injured in an accident on November 28, 2016, and sought various benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Intact denied the benefit 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:

i. Are the applicant’s injuries predominantly minor injuries as defined by s. 3 of the Schedule and therefore subject to treatment within the MIG?

ii. Is the applicant entitled to payment for the treatment plan in the amount of $1,702.10 for physiotherapy and massage as recommended by Navneet Randhawa of MedRehab Group submitted April 3, 2019?

RESULT

3The applicant has not demonstrated that he sustained accident-related impairments that warrant removal from the MIG. He is not entitled to payment for the treatment plan in dispute or interest.

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 on a balance of probabilities.

5The applicant submits that he sustained a full-thickness tear to his mid-supraspinatus tendon as a direct result of the accident that warrants removal from and treatment beyond the MIG, as he continues to suffer from daily pain and discomfort. To this end, he relies on a July 18, 2019 ultrasound report, his OHIP summary and various clinical notes and treatment records.

6In response, Intact raises several causation issues, arguing that the applicant has not demonstrated that his shoulder injury was a direct result of the accident. It asserts that the applicant’s accident-related injuries fall within the MIG and were resolved within three months of the accident, by February 2017, when he was discharged from treatment without exhausting his funding under the MIG. It points to his discharge from treatment, the dearth of accident-related complaints in the clinical notes, the April 25, 2018 notation that indicates a previous impairment arising from snow shovelling, the applicant’s self-reporting to its s. 44 assessor that he had injured the shoulder some time after the accident and the fact that the ultrasound was performed over two and a half years post-accident as evidence that the shoulder tear was not a direct result of the accident. It relies on the s. 44 report of Dr. Kopyto, who concluded that the applicant sustained uncomplicated strains of his neck and back as a result of the accident.

The applicant has not met his burden

7I agree with Intact and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. Problematically, the applicant did not file reply submissions to rebut Intact’s position on causation. While I am alive to the ultrasound report finding a full-thickness tear of the shoulder, the applicant has fallen well-short of meeting his burden to prove that but for the accident he would not have sustained the tear.

8Based on his discharge from treatment in February 2017, I agree that it appears that his accident-related injuries—strain/sprain of the neck and back—resolved within three months of the accident. Further, he made no contemporaneous complaints to any of his family physicians about accident-related shoulder pain and no referrals were made for further investigation. The April 25, 2018 notation that indicates a shoulder impairment arising from shovelling wet snow undermines the applicant’s case, as does his admission to Dr. Kopyto that he separated his shoulder “at some time after the accident.” While the applicant contends that this was a miscommunication with the assessor, I agree with Intact that he has furnished no evidence to dispute Dr. Kopyto’s report, despite having the benefit of reply. Finally—and perhaps most fatal to the applicant’s claim—is the fact that the ultrasound revealing the tear was performed on July 18, 2019, or over two and a half years post-accident. This lengthy delay, combined with a dearth of contemporaneous complaints and the applicant’s own reporting on the cause of his injury, cripple the applicant’s claim that the tear is a direct result of the accident. Where the impairment is not accident-related, it follows that there are no grounds for removal from the MIG and the $3,500 limit on treatment applies. The applicant has not met his onus to demonstrate that removal from the MIG is warranted.

Is the treatment plan reasonable and necessary?

9Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment plan in dispute is reasonable and necessary is not required. However, for completion, the applicant’s submissions on the OCF-18 in dispute fall well-short of meeting his burden to show that the treatment is reasonable and necessary. There is no discussion of the goals of treatment, how the goals would be met to a reasonable degree or why the cost of same would be reasonable. The applicant also did not provide evidence that the treatment was incurred, so it is not payable.

ORDER

10The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not reasonable and necessary and no interest is payable. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.