Siddiqui v. Unica Insurance Inc., 2022 CanLII 11145

Citation: Siddiqui v. Unica Insurance Inc., 2022 ONLAT 20-007970/AABS

Licence Appeal Tribunal File Number: 20-007970/AABS

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:

Sayeed Siddiqui

Applicant

and

Unica Insurance Inc.

Respondent

DECISION

VICE-CHAIR: Chloe Lester

APPEARANCES:

For the Applicant: Sayeed Siddiqui, Applicant Alexei Antonov, Counsel Francesco Vumbaca, Student-At-Law

For the Respondent: Domenic Nicassio, Counsel

HEARD: In Writing July 26, 2021

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on July 19, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016).¹

2The applicant claims that based on his pre-existing conditions and accident-related injuries he should receive treatment beyond the $3,500.00 Minor Injury Guideline (MIG)² limits.

3Based on the initial application, medical reports and assessments, the respondent determined the applicant’s injuries fell within the MIG and denied any benefits over MIG limits.

4As a result of the respondent’s denial, the applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for dispute resolution.³

ISSUES

5The issues to be determined in this hearing are:

a. 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?

b. Is the applicant entitled to $220.00 ($1305.10 less amounts approved) chiropractic services recommended by Toronto Healthcare Clinic Inc. in a treatment plan (OCF-18) dated October 18, 2018?

c. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

d. Is the applicant entitled to interest on any overdue payment of benefits?

RESULTS

6The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit.

7The applicant is not entitled to $220.00 for the remainder of a chiropractic treatment plan as the MIG limits, $3,500.00, have been exhausted.

8As no funds are owing the applicant is not entitled to an award or interest.

THE MINOR INJURY GUIDELINE AND THE DISPUTED TREATMENT PLAN

9The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10To request treatment above the $3,500.00 funding limit, the applicant must prove, on a balance of probabilities, that his injuries do not fall within the definition of minor injury in section 3 of the Schedule. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner that before the accident documents a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing an impairment sustained in the accident is not a predominantly minor injury.

11The applicant argues that he should not be subject to the MIG because he has pre-existing conditions and injuries that prevent maximal recovery within the MIG funding limits. He also argues that he requires additional medical intervention because he is having difficulties with his caregiving responsibilities and housekeeping activities. The applicant argues that he should be removed from the MIG and the full amount of the treatment plan be approved. Lastly, the applicant argues that the respondent had an obligation to inform him on how to get out of the MIG when they denied the benefit.

12The respondent argues the injuries sustained in this car accident were soft tissue injuries subject to the MIG and that the pre-existing injuries would not preclude the applicant from achieving maximal medical recovery within the MIG. Also, it argues there are no post-accident medical records to indicate the recovery of the applicant.

13For an applicant to be removed from the MIG, there must be:

…compelling evidence to be provided using the Treatment and Assessment Plan (OCF-18) with attached medical documentation, if any prepared by a health practitioner.

The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. It is intended and expected that the vast majority of pre-existing conditions will not do so.

Only in extremely limited instances, where compelling evidence provided by a health practitioner satisfactorily demonstrates that a pre-existing condition that was documented by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment to be determined not to come within this Guideline. Exclusion of a person from this Guideline based on reasons or evidence falling short of this requirement is inconsistent with the intent of the SABS and this Guideline.⁴

14The applicant’s pre-accident clinical notes and records from the family doctor, Dr. Rafael, indicate that he had ongoing concerns of heart disease, allergies, asthma and plantar fasciitis. In order to rely on a pre-accident condition as a means to be removed from the MIG, the applicant must prove that the pre-accident condition will prevent the person from achieving maximal recovery within the MIG limits. I cannot see how any of these conditions would prevent the applicant from achieving maximal medical recovery within the MIG from soft tissue injuries.⁵ Even the treating chiropractor in the treatment plan -Part 7 indicated that the applicant did not have any prior conditions that would affect his response to treatment.⁶

15Pre-accident there were some complaints of neck pain, anxiety, and upper chest pain but they were not ongoing complaints. Each of these conditions was only mentioned once in the pre-accident records and the x-rays of the upper chest came back normal. Since I do not have any post-accident medical records, I am not able to determine whether any of these impairments were exacerbated by the accident. In any event, since these complaints were only mentioned once in the pre-accident records, I cannot conclude that these were documented issues that would demonstrate a pre-existing condition that would prevent achieving maximal results within the MIG.⁷

16The applicant has been diagnosed with soft tissue injuries that fall within the MIG. The Treatment Plan⁸ and the Disability Certificate (OCF-3)⁹ diagnose the applicant with nothing more than minor injuries (strains and sprains) or sequelae from those minor injuries. The Disability Certificate does diagnose the applicant with a non-organic sleep disorder, but the chiropractor who authored that report would not have been qualified to give that diagnosis considering that is a sleep disorder due to emotional causes, a condition under the psychiatric discipline. Also, the applicant was diagnosed with soft tissue injuries by his family doctor.

17The applicant does not have a pre-existing condition that would prevent maximal recovery within the MIG or was diagnosed with anything greater than soft tissue injuries due to the accident. Therefore, the applicant is subject to treatment within the MIG limits of $3,500.00.

18Lastly, the applicant argues that he requires additional medical intervention because he is having difficulties with his caregiving responsibilities and housekeeping activities. Unfortunately, having difficulties with household and caregiving responsibilities is not an adequate reason for justifying treatment outside the MIG limits. It was to be based on the injuries sustained during the accident or a pre-existing condition that prevents maximal recovery within MIG limits.

19Since the denial letter by the respondent indicates that the MIG limits are exhausted, I do not need to consider the reasonableness or necessity of the treatment plan.

20The applicant argues that the respondent ought to have indicated in the Treatment Plan’s denial letter how the applicant could get out of the MIG and receive further treatment. The applicant does not indicate a section in the Schedule that obligates the respondent to do so. I do not see an obligation on the respondent to explain the process for getting out of the MIG. Section 38 of the Schedule indicates the requirements of the denial letter and how the applicant gets treatment above the MIG limits is not one of them.

CONCLUSION

21In conclusion, the applicant suffered from soft tissue injuries as a result of the accident and did not have a pre-existing condition that would prevent maximal recovery within the MIG. Since all funds within the MIG are exhausted, the applicant is not entitled to the remainder of the treatment plan.

22Since no funds are owing, the applicant is not entitled to an award or interest.

23The application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (“Schedule”)
2. 2Superintendent’s Guideline No. 01/14 Minor Injury Guideline
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”)
4. 4Superintendent’s Guideline No. 01/14 Minor Injury Guideline Section 4
5. 5Applicant’s Submissions Tab 2 CNR of Dr. Rafael July 19, 2015 until July 20, 2018, Tab 3 Treatment Plan dated October 18, 2018 and Tab 1 Disability Certificate dated July 25, 2018
6. 6Applicant’s Submissions Tab 3 Treatment Plan dated October 18, 2018
7. 7Applicant’s Submissions Tab 2 CNR of Dr. Rafael July 19, 2015 until July 20, 2018
8. 8Applicant’s Submissions Tab 3 Treatment Plan dated October 18, 2018
9. 9Applicant’s Submissions Tab 1 Disability Certificate dated July 25, 2018