Citation: Balana v. Aviva General Insurance Company, 2022 ONLAT 20-008134/AABS
Licence Appeal Tribunal File Number: 20-008134/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:
Jennifer Balana
Applicant
and
Aviva General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the Applicant:
Robert Lamot, Counsel
For the Respondent:
Melanie Sousa, Counsel
HEARD:
By way of written hearing
REASONS FOR DECISION AND ORDER
BACKGROUND
1The applicant was involved in an automobile accident on January 20, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016)1 (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
2The parties agreed that the MIG limits have been exhausted.
ISSUES
3The following issues are before the Tribunal:
i. Are the applicant’s injuries predominantly minor as defined in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $ 1995.33 for psychological services recommended by Brampton Civic Care Centre in a treatment plan submitted July 20, 2018, and denied August 2, 2018?
iii. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Ontario Regulation 664?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
LAW
4Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.
5Section 18(1) of the Schedule states that when an insured person sustains an impairment that is predominantly a minor injury, the total cost of her medical and rehabilitation benefits payable shall not exceed $3,500.00.
6In Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”), the Divisional Court reviewed the minor injury provisions in the Schedule, finding that they were a limit on an insurer’s liability, not an exclusion from coverage, and that the onus of establishing entitlement beyond the cap rests with the claimant. Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500 cap for minor injuries.
SUBMISSIONS AND EVIDENCE
Causation
7The applicant made submissions regarding causation, referring the leading legislation this, being Sabadash2and other cases. The respondent did not dispute causation in its submissions, therefore I accepted that the alleged injuries claimed by the applicant after her accident were caused by her accident.
Preliminary Issue Raised by the respondent
8The respondent raised a preliminary issue in its submissions, arguing that the applicant should be precluded from submitting a reply; the respondent submitted that because the applicant failed to adduce all the evidence she wished to rely on in her submissions, she should not be allowed to include any evidence in her reply submissions which reasonably could have been included with her initial submissions.
9As the applicant failed to make reply submissions, this issue is moot and I will not address it.
Parties Positions
10The applicant submitted that her accident materially contributed to her physical and psychological injuries and should remove her from the MIG.
11The respondent submitted that the applicant has failed to meet her evidentiary burden of showing that her alleged injuries are anything more than predominantly minor in nature.
Did the applicant sustain predominantly minor physical injuries?
12The applicant relied on the emergency records3 from the William Osler Health System (“Brampton Civic Care Centre Hospital”), which showed that when the applicant was removed from the scene of her accident, she reported lower back pain and was 17 weeks pregnant.
13The applicant also relied on her disability certificate4 (“OCF-3”) completed by Dr. Dario Mirian, chiropractor. Dr. Mirian wrote that as a result of the accident, the applicant sustained sp