Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
Released Date: 06/22/2021
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:
Arnold Oliver Abadicio
Applicant
And
Economical Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Avril A. Farlam, Vice Chair
APPEARANCES:
For the Applicant:
Devika Maharaj, Paralegal
For the Respondent:
Lisa A. Armstrong, Counsel
HEARD By Way of Written Submissions
REASONS FOR DECISION AND ORDER
OVERVIEW
1Arnold Oliver Abadicio (“applicant”) was involved in an automobile accident on September 25, 2017 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). 1
2Economical Insurance Company (“respondent”) determined that the applicant’s injuries fit the definition of “minor injury” prescribed by s.3(1) of the Schedule and therefore fall within the Minor Injury Guideline (“MIG”)2 and denied other benefits. The respondent paid income replacement benefits (“IRB”) to the applicant until February 2, 2018 when it determined him ineligible.
3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
ISSUES
4The issues to be decided are:
i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?3
ii. Is the applicant entitled to the following assessments recommended by MediAssess Evaluations Inc.:
a. $2,259.78 for a neurological assessment, in a treatment plan dated July 5, 2018;
b. $2,594.56 for a physiatry assessment in a treatment plan dated November 6, 2018; and
c. $2,254.71 for a psychiatry assessment in a treatment plan dated July 19, 2018? (“three disputed treatment plans”)
iii. Is the respondent entitled to a repayment of $7,120.00 for an overpayment of IRB?
iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. As the parties have agreed that the MIG limits have been substantially exhausted with only a nominal amount remaining, it is not necessary for me to determine the reasonableness and necessity of the three disputed treatment plans. I find that the respondent is entitled to a repayment of $7,120.00 from the applicant for overpayment of IRB. No award is made. No interest is payable.
LAW
6The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.
7To be eligible for treatment above the $3,500.00 funding limit, the applicant must establish that his or her impairments sustained in the accident are not predominantly minor, or produce compelling evidence, provided by a health practitioner, that was documented before the accident, that the applicant has a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit.
8The onus is on the applicant to establish, on a balance of probabilities, that his or her injuries fall outside of the MIG.4
9Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.
10Section 52(1)(a) of the Schedule provides that a person is liable to repay to the insurer any benefit paid as a result of an error on the part of the insurer, the insured person or any other person, or as a result of wilful misrepresentation or fraud.
11Section 52(2)(a) provides that the insurer shall give person notice of the amount required to be repaid. Section 52(3) provides for a 12 month limitation unless the amount was originally paid as a result of wilful misrepresentation or fraud. Interest is provided for in s. 52(5).
12Section 53 permits an insurer to terminate the payment of benefits to or on behalf of an insured if the insured person has wilfully misrepresented material facts relating to the application for benefits provided notice is given which sets out the reason for termination.
13The onus is on the insurer to prove that the benefit was overpaid on a balance of probabilities.
ANALYSIS
Did the Applicant Suffer Injuries that are Predominantly Minor?
14The applicant submits that his injuries are not minor and that he suffers from chronic pain and possibly psychological sequelae including post-concussive syndrome as a result of the accident and as a result, requires further treatment taking him outside the MIG.
15I find that the applicant’s physical injuries from the accident are minor injuries because the applicant’s medical reports and records do not indicate any physical injuries arising from the accident other than soft tissue injuries.
16Dr. Rotundo, applicant’s family physician diagnosed back, cervical and left shoulder strain, headaches with dizziness. These fall within the definition of “minor injury”. The April 15, 2019 report of Dr. Chen, applicant’s physiatrist, also indicates soft tissue physical injuries.
17However, the applicant submits that he suffers from chronic pain and psychological injury that remove him from the MIG.
Does the applicant have chronic pain or psychological injury as a result of the accident?
18I find that the applicant has not provided sufficient evidence to meet his burden of proof to establish that he suffers from chronic pain or psychological injury justifying treatment beyond the MIG.
19Although Drs. Rotundo and Chen diagnose the applicant with chronic pain, neither physician adequately explains the applicant’s lack of functional limitations which are apparent from the fact that the applicant returned to work approximately a month post-accident and worked full-time until a June 2020 slowdown as established by the applicant’s employment records.
20Further, Dr. Rotundo appears to be unaware of the applicant’s ability to work. In his March 3, 2019 report Dr. Rotundo states that the applicant has been unable to carry on with regular work-related tasks due to the sequelae that have resulted from the accident. This opinion is inconsistent with the applicant’s employment records post-accident.
21For chronic pain to indicate removal from the MIG it must be chronic pain syndrome or pain that is continuous severe to cause suffering and distress accompanied by functional impairment or disability as the Tribunal has stated before.5
22Although in his March 3, 2019 report Dr. Rotundo diagnoses psychological injuries including fears and anxiety and memory changes and pain, and states that the applicant “...will be offered referral for psychological support”, Dr. Rotundo’s records post-accident prior to March 2019 demonstrate little support for this diagnosis. Further, Dr. Rotundo does not appear to have made any referral for psychological support between the date of the accident and March 2019 which is inconsistent with the accident causing any psychological injuries.
23The September 11, 2018 report of Dr. Basile, applicant’s neurologist, diagnoses post-concussive syndrome with evidence of both cognitive memory concentration as well as behavioural agitation features of the post-concussive syndrome that affected the applicant’s social and recreational and work experiences. Dr. Basile also seems unaware of the applicant’s work history since the accident. He notes in his report that the applicant has worked full-time “since January/February 2018” which is inconsistent with the applicant’s employment records post-accident that indicate the applicant returned to work one month post-accident and the applicant’s submissions made at this hearing regarding IRB.
24Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain or psychological injury as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant and he has not done so.
Is the respondent entitled to a repayment of $7,120.00 for an overpayment of IRB?
25The respondent submits that it paid IRB of $400.00 per week to the applicant from October 10, 2017 to February 2, 2018 based on information provided by the applicant. The respondent submits that this now turns out to be an overpayment of $7,120.00. because the applicant had returned to work October 25, 2017.
26The applicant does not dispute repayment but submits that the amount of repayment sought is excessive given that the applicant was paid a total of $8,000.00 in IRB, the repayment claim is unquantified and he told the respondent’s assessors in January, 2018 that he was back at work.6 The applicant submits that he returned to work on modified hours and duties on October 25, 2017 and to regular duties on November 25, 2017.
27After considering all of the evidence, submissions and cases put forward by the parties, I find that the respondent has met its burden to prove on a balance of probabilities that it overpaid IRB to the applicant in the amount of $7,120.00 in error as a result of the applicant’s wilful misrepresentation of the timing of his return to work. The following are my reasons.
28The applicant provided a statutory declaration to the respondent confirming that he had returned to work full-time and on full duties January 19, 2018. The respondent informed the applicant on February 9, 2018 that he had ceased to be eligible for IRB and requested repayment of $1,600.00, later increased to $7,200.00 by the Tribunal’s October 21, 2020 Order after the respondent learned that the applicant had returned to work October 25, 2017, a month after the accident.
29There is no evidence before me that the applicant communicated to the respondent or through his legal representative that he had returned to work on October 25, 2017, approximately one month post-accident, until several months later. I am not satisfied with the applicant’s submission that he told the respondent’s assessors in January 2018 that he was back at work. This does not constitute a timely report to the respondent that he had returned to work October 25, 2017.
30Further, the applicant continued to accept weekly IRB payments of $400.00 after October 25, 2017 even though he was working, indicating to the respondent his entitlement to IRB.
31I find the applicant’s submission that he returned to modified hours and duties on October 25, 2017 and to regular duties November 25, 2017 unpersuasive. The applicant’s supervisor confirmed in the progress report for non-occupational injuries dated October 25, 2017 that the applicant had returned to work on light duty due to “sprain/strain type injuries in neck, upper back and low back. Headaches and dizziness also associated.”
32The applicant had a clear duty to advise the respondent that he had returned to work and made no attempt to do so at the time, continuing instead to give the impression he was not working.
33The Tribunal has stated before that misrepresentation is “any manifestation by words or other conduct by one person to another that, under the circumstances, amounts to an assertion not in accordance with the facts” or a silence or failure to report facts.7
34I find that the applicant wilfully misrepresented his work status while continuing to collect IRB even though no longer eligible under ss.5 and 37(2)(e) of the Schedule. I find that by failing to advise the respondent that he had returned to work approximately one month post-accident and by putting forward misleading and misrepresentative documentation indicating he had not returned to work, the applicant misrepresented his true work status to the respondent.
35I have considered and rejected the applicant’s submissions that this amount is excessive or unquantified given the particular facts and circumstances outlined above.
36I also find that the respondent gave notice as required s.52(2)(a) by correspondence dated February 9, 2018 even though the quantum of the repayment sought increased later as more information became available to the respondent in the course of this proceeding. Section 52(3) provides that is the notice is not given within 12 months after payment of the amount sought to be repaid, the person to whom notice would have been given ceases to be liable unless it was originally paid to the person as a result of a wilful misrepresentation or fraud. I have already found that the respondent paid the applicant because he wilfully misrepresented his work status while continuing to collect IRB. The exception in s. 52(3) applies here. As a result, I also find that the applicant is liable to repay to the respondent $7,120.00 for the period October 25, 2017 to February 9, 2018 plus interest pursuant to s. 52(5).
Is the Applicant Entitled to the Three Disputed Treatment Plans?
37Having found that the applicant’s injuries fall within the MIG and given that the parties have agreed that the MIG limits have been substantially exhausted with only a nominal amount remaining, it is not necessary to decide the reasonableness and necessity of this disputed treatment plan.
Award
38Section 10 of Ontario Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. I find that there was no payment unreasonably withheld or delayed. For this reason, there is no award.
Interest
39As no benefits are payable, no interest is payable.
ORDER
40For the above reasons, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. As the parties have agreed that the MIG limits have been substantially exhausted with only a nominal amount remaining, it is not necessary for me to determine the reasonableness and necessity of the three disputed treatment plans. I find that the respondent is entitled to a repayment of $7,120.00 from the applicant for overpayment of IRB. No award is made. No interest is payable.
Released: June 22, 2021
Avril A. Farlam,
Vice Chair
Footnotes
- O.Reg. 34/10
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act.
- The Tribunal’s June 3, 2020 case conference Order notes that the parties agree the MIG limits have been substantially exhausted with only a nominal amount remaining.
- Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.
- See for example: 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT).
- Applicant’s Written Reply Submissions dated January 5, 2021, para 7.
- For example: Aviva General Insurance Company v. Muthusamythevar, 2020 CanLII 94791 (ON LAT).