Citation: Samuels v. BelairDirect Insurance Company, 2021 ONLAT 20-000929/AABS

Release date: 09/16/2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Fitzroy Samuels

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Paul Giuliano, Counsel

For the Respondent:

Emily A. Schatzker, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Fitzroy Samuels, was injured in an automobile accident on December 13, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from BelairDirect Insurance Company, the respondent.

2The respondent denied the applicant’s claims for various physical treatments and a psychological assessment because it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on July 2, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

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

(ii) Is the applicant entitled to $2,125.00 for a psychological assessment, recommended by Alexmuir Wellness Centre in a treatment plan (OCF-18) dated January 29, 2018?

(iii) Is the applicant entitled to $3,436.90 for chiropractic treatment, recommended by Alexmuir Wellness Centre in an OCF-18 dated February 5, 2018?

(iv) Is the applicant entitled to $2,835.56 for physiotherapy treatment, recommended by Alexmuir Wellness Centre in an OCF-18 dated April 11, 2018?

(v) Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

(vii) Is the respondent entitled to a repayment of benefits in the amount of $5,095.95?

RESULT

5I find that the applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG. I also find that payment for benefits by the respondent in excess of the MIG limits following a priority dispute does not automatically entitle the applicant to benefits outside of the MIG or absolve him from meeting his burden of proving that his accident-related impairments require treatment beyond the MIG. As the MIG limits have been exhausted, the applicant is not entitled to the disputed treatment plans and, as a result, he is not entitled to an award or interest. The respondent is not entitled to a repayment under s. 52 of the Schedule.

ANALYSIS

The Minor Injury Guideline (MIG)

6The MIG establishes a framework available to injured persons who sustain 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 strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap only if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

8In this matter, the applicant’s position is that he is entitled to treatment outside of the MIG framework on the basis of a pre-existing injury and/or chronic pain. In the alternative, the applicant maintained that he is entitled to treatment outside of the MIG framework because more than $3,500.00 has already been paid for his medical and rehabilitation benefits.

9For the reasons that follow, I find that the applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG on the basis of a pre-existing condition and/or chronic pain. I also find that payment by the respondent in excess of the MIG limits following a priority dispute does not automatically entitle the applicant to benefits outside of the MIG or absolve him from proving that his accident-related impairments require treatment beyond the MIG framework.

Pe-existing Condition

10The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: there must be compelling evidence that the pre-existing impairment will prevent maximal recovery under the MIG.⁴

11The applicant submitted that his pre-existing condition of a T12 compression fracture diagnosed by Dr. Richard Kaminker, physician, on July 10, 2014⁵ was exacerbated as a result of the accident and, accordingly, he should be removed from the MIG.⁶ This, however, is not the test to meet for removal from the MIG based on a pre-existing condition. Moreover, the applicant submitted that he again suffered a fractured T12 in a prior motor vehicle accident on August 29, 2015. The applicant submitted that he was “still suffering the effects of his 2015 accident when the subject accident occurred.”⁷ The evidence, however, does not support this submission as Dr. James Rathburn, physician, reported that the applicant had recovered from this injury fairly well before he was involved with the subject accident.⁸

12In sum, the applicant has failed to submit compelling evidence that his pre-existing condition would prevent him from achieving maximal recovery within the MIG. Therefore, I find that the applicant is not removed from the MIG based on any pre-existing conditions.

Chronic Pain

13The applicant submitted that the medical evidence along with his submissions clearly demonstrate that he is suffering from chronic pain and, therefore, his injures are not captured by the MIG.

14I find for chronic pain to take someone out of the MIG, there must be an effect on their functionality. In this case, there is no medical evidence that the applicant’s accident-related injuries have had a detrimental impact on his functionality. More is required to establish to what extent a chronic pain condition, be it syndrome or “chronicity of symptoms”, affects functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

15The applicant submitted one illegible clinical notes and record (CNR) entry from Dr. Kanayalal Mohan, his family physician. While the applicant did report ongoing back pain to his treating clinic, there is no mention of the effect of his back pain on his functionality. Further, the applicant reported to Dr. Mohamed Khaled, physician, in the March 20, 2018 Insurer’s Examination (IE) Medical Physician Assessment Report⁹ that despite experiencing residual pain,¹⁰ he was independent with his personal activities of daily living, he was driving, and he working as normal but avoided lifting more than 80 pounds.¹¹

16Therefore, I find that the applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain because there is no evidence before me that his back pain affected his functionality.

17It is undisputed that the applicant received medical benefits following the accident from two different insurers, the respondent and Zenith Insurance (Zenith). The parties also agreed that at some point, the respondent assumed the handling of the applicant’s claim and repaid Zenith for the amounts it had paid to the applicant for benefits. The parties do not agree on the amount that was paid to Zenith but they both proposed that it was an amount that was in excess of $5,000.00.

18It is the applicant’s position that because the respondent has already paid in excess of the MIG limits of $3,500.00, that he is entitled to be removed from the MIG limit for benefits. The applicant submitted that it is inappropriate and untenable for the respondent to pay for treatment in excess of the MIG limits and then deny treatment solely based on the MIG. The applicant maintained that the respondent cannot “tacitly accept that the injuries warrant a payment of over $5,000.00 and then rely solely on the MIG moving forward.”¹²

19The applicant, however, fails to explain how, as a result of him claiming benefits from two insurers, the resulting priority regime re-payment should lead me to conclude that the respondent is required to pay benefits to a claimant who has not proven on a balance of probabilities that his injuries require treatment outside of the MIG. The applicant provided no authority for his position that absolves him of his burden of proving on a balance of probabilities that his injuries fall outside of the MIG on the basis that payments were made for benefits in excess of the MIG limits.

20Therefore, I find that the applicant is not removed from the MIG on the basis that the respondent has paid in excess of the $3,500.00 MIG limit in this matter.

21As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits or that payment of benefits in excess of the MIG limits automatically entitles an insured person to treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted.

Award

22Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

23As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

24As there are no benefits owing, no interest is payable.

Repayment of Benefits

25The respondent is seeking repayment of $5,095.95 from the applicant which represents the amount that it paid to Zenith as reimbursement on the priority dispute.

26Section 52 of the Schedule concerns the repayment of benefits. Under s. 52(1)(a), a person is liable to repay to the insurer any benefit that is paid to the person as a result of an error on the part of the insurer, the insured person or any other person, or as a result of willful misrepresentation or fraud. The Tribunal has defined “misrepresentation” as, “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.” The Tribunal has also held that “silence or a failure to report” can constitute willful misrepresentation.¹³

27The respondent submits that the applicant’s actions in seeking benefits from both the respondent and Zenith, and not advising either of the insurers of the other’s involvement in his claim, constitute wilful misrepresentation or fraud and, therefore, the respondent is entitled to the repayment.

28While I agree with the respondent that the applicant made several misrepresentations in this matter, including his failure to report the involvement of two insurers in his claim and indicating on his Applicant for Accident Benefits form (OCF-1) that he submitted to Zenith that he did not have a coverage under any other automobile insurance policy, I find that the respondent’s claim for repayment fails. Section 52(1)(a) only permits repayment of benefits if they were “paid to the person.” Here, the repayment that the respondent seeks was made to Zenith, not to the applicant. As a result, the respondent is not entitled to a repayment from the applicant under s. 52(1)(a).

CONCLUSION

29For the reasons outlined above, I find that:

(i) The applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG;

(ii) Payment for benefits by the respondent in excess of the MIG limits following a priority dispute does not automatically entitle the applicant to benefits outside of the MIG or absolve him from meeting his burden of proving that his accident-related impairments require treatment beyond the MIG;

(iii) The applicant is not entitled to the disputed treatment plans as the MIG limits have been exhausted;

(iv) The applicant is not entitled to an award under O. Reg. 664 or interest;

(v) The respondent is not entitled to a repayment under s. 52 of the Schedule; and

(vi) This applicant is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4Supra note 2 at page 5, heading 4, “Impairments that do not come within this Guideline” and Schedule, s. 18(2).
5. 5Submissions of the Applicant, tab 9.
6. 6Submissions of the Applicant, para. 16.
7. 7Submissions of the Applicant, para. 7.
8. 8Submissions of the Applicant, tab 8.
9. 9Respondent’s Document Brief, page 86.
10. 10Ibid. at page 6.
11. 11Ibid. at page 4.
12. 12Submissions of the Applicant, para. 12.
13. 13See: 17-000272 v T.T., 2017 CanLII 87539 (ON LAT) at paras. 21-22.