Citation: Marroquin v. Jevco Insurance, 2023 ONLAT 21-000648/AABS

Licence Appeal Tribunal File Number: 21-000648/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:

Carlos Marroquin

Applicant

and

Jevco Insurance

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Alex Nikolaev, Counsel

For the Respondent:

Ramandeep Pandher, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1Carlos Marroquin, the applicant, was involved in an automobile accident on December 19, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Jevco Insurance, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the respondent prohibited from taking the position that the applicant’s injuries are predominantly minor because section 38 (11)(1) of the Schedule applies?

ii. Is the applicant entitled to $3,447.51 for physiotherapy services proposed by Oakville Physio Aquatic Centre (Healthmax) in a treatment plan/OCF-18 submitted December 11, 2019 and denied December 20, 2019?

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

3In submissions, the applicant withdraws the issue of his entitlement to an award. This is listed as issue three in the Case Conference Report and Order dated August 25, 2022.

PROCEEDURAL MATTERS

4The respondent objects to the applicant to raising the issue of a treatment plan in the amount of $3,696.50 for chiropractic and massage services because this treatment plan is not listed in the Case Conference Report and Order (CCRO). The respondent asks that the Tribunal not consider the applicant’s submissions on this issue.

5The applicant did not reply to the respondent’s submission.

6I agree that this issue is not noted on the CCRO and that it is not properly before the Tribunal. Consequently, this issue will not be adjudicated in this proceeding.

RESULT

7The application is dismissed.

ANALYSIS

MIG

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if an insured person sustains impairments that are predominantly a minor injury. 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.”

9Typically, an insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG.

10In this case, the applicant is not seeking removal from the MIG. Instead, he is arguing that section 38(11)(1) of the Schedule applies and that the respondent is prohibited from taking the position that the applicant’s injuries fall within the MIG.

11The applicant submits that the respondent failed to comply with the requirements in section 38(8) of the Schedule. In particular, the respondent did not provide medical reasons and all other reasons why it denied this treatment plan listed as issue 2 in this application. Under section 38(11)(1) of the Schedule, the respondent cannot take the position that the applicant’s has an impairment to which the MIG applies. The denial letter, dated December 20, 2019, states:

The Treatment and Assessment Plan (OCF-18) indicates you should qualify for treatment outside the minor injury limit. Following a review of the Treatment and Assessment Plan (OCF 18) there is insufficient documentation provided by your health practitioner that would support your removal from the minor injury limit.

12According to the applicant, this denial says nothing about the specific medical condition or on what basis the denial is being made. In his view, the applicant was never informed why he was denied. Consequently, the respondent cannot take the position that MIG limits apply.

13The respondent submits that it had limited medical information at the time the applicant submitted the treatment plan. The denial reflects these circumstances. As such, 38(11)(1) does not apply.

14I agree with the respondent. The denial letter is not silent regarding the medical reasons for the denial. As the denial letter explains, the treatment plan states that the applicant qualifies for treatment outside the MIG. The respondent determined that the treatment plan alone was insufficient evidence to justify removal from the MIG. The respondent asked the applicant to provide more medical evidence, namely the clinical notes of the applicant’s family doctor and an OHIP summary, by January 6, 2019. The treatment plan would then be re-evaluated once this new evidence is received.

15In my view, the absence of medical evidence falls within the parameters of “medical reasons” for why the respondent considers treatment to not be reasonable and necessary. For this reason, I find that neither s. 38(8), nor s. 38(11) of the Schedule applies.

16Consequently, I find that the respondent is not prohibited from taking the position that the applicant’s injuries fall within the MIG.

17I note that the respondent’s letter dated August 24, 2021 indicates that the full amount of $3,500.00 remains available for treatment within the MIG, although $2,200.00 in treatment has been approved.

Is the applicant entitled to $3,447.51 for physiotherapy services?

18Typically, to receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.

19In this case, the applicant is not arguing that the treatment plan is reasonable and necessary. Instead, the applicant submits that the respondent failed to comply with the requirements in section 38(8) of the Schedule by not providing medical reasons for why it denied this treatment plan. Consequently, the applicant is entitled to anything incurred for the subject treatment plan is under s. 38(11).

20Having already found that s. 38(11) does not apply, I further find that the applicant is not entitled to anything incurred for the treatment plan under the provisions of s. 38(11).

Interest

21As there are no overdue benefits, the applicant is not entitled to interest under s. 51 of the Schedule.

ORDER

22This application is dismissed.