20-000477/AABS
Released Date: 06/02/2021
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:
Carolene Thomas
Applicant
and
CUMIS General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Monica Chakravarti
APPEARANCES:
For the Applicant:
Adam Moftah, Counsel
For the Respondent:
Brendan T. Sheehan, Counsel
HEARD:
Via Written Submissions
OVERVIEW
1The applicant was involved in an accident on June 27, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – effective September 1, 2010 (the “Schedule”). The respondent denied the benefits and the applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2A final case conference took place on September 18, 2020 and an Order was issued setting out the issues in dispute for this hearing. The issues in dispute identified in the Order of September 18, 2020 were the below substantive issues and a preliminary issue raised by the respondent that the applicant’s claim for accident benefits is statute barred pursuant to section 61(1) of the Schedule. The respondent confirmed that the preliminary issue of section 61(1) is no longer an issue to be decided in this hearing.
3The respondent is now seeking a finding that a physiotherapy treatment plan in dispute is statute barred. Thus, this is a new issue in dispute that was not part of the Order of September 18, 2020 and is raised for the first time in the submissions of the respondent. It would be procedurally unfair to allow the respondent to unilaterally vary the Order of the Tribunal by adding this as an issue to this hearing. As well, based on the decision below, the issue of the applicant being statute barred pursuant to section 56 is moot as ultimately the physiotherapy treatment plan is not reasonable and necessary and therefore not payable.
4As per the Tribunal’s Order of September 18, 2020 the issues to be decided in this hearing are:
i. 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 Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to $2,181.40 for physiotherapy recommended by an unknown provider in a treatment plan - OCF-18 (Plan) submitted on December 14, 2017, and denied on January 3, 2018?
iii. Is the applicant entitled to $1,998.00 for chiropractic treatment recommended by an unknown provider in a Plan submitted on March 27, 2018, and denied on May 2, 2018?
iv. Is the applicant entitled to $1,998.80 for medical services recommended by an unknown provider in a Plan submitted on March 27, 2018, and denied on May 17, 2018?
v. Is the applicant entitled to $2,200.00 for psychological services recommended by an unknown provider in a Plan submitted on April 11, 2018, and denied on May 11, 2018?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant’s injuries fall within the MIG and therefore subject to treatment within the $3500.00 limit. The applicant has not met her onus to show that the treatment plans in dispute are reasonably necessary and therefore none of the disputed Plans are payable. As no benefits are overdue there is no entitlement to interest.
ANALYSIS
a) The Minor Injury Guidelines
6The onus is on the applicant to prove on a balance of probabilities that she did not sustain predominately minor injuries as a result of the accident.1
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 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.” It is recognized that psychological injuries, concussion and chronic pain fall outside the definition of minor injury.
8Section 15(1) of the Schedule provides that, subject to Section 18, the insurer shall pay for all reasonable and necessary medical expenses incurred by or on behalf of the insured person as a result of the accident.
9The applicant submits that as a result of the accident she sustained a concussion which removes her from the MIG. The applicant relies on the clinical notes and records of Dr. Talwalkar and High Mark Medical.
10The respondent submits that there is no diagnosis of a concussion and the notation regarding concussion in Dr. Talwalkar’s notes of July 4, 2017 is the applicant self reporting a concussion. Dr. Talwalkar makes no further recommendations for concussion treatment and there are no further notations, medical notes etc. following July 4, 2017 indicating that the applicant is having headaches or any post-concussive symptoms.
11The applicant has the evidentiary onus to prove on a balance of probabilities that she sustained a concussion as a result of the accident. She has not met her onus as she has