Licence Appeal Tribunal File Number: 21-015160/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:
Mohammed Ahmed
Applicant
and
Certas Direct
Respondent
DECISION
ADJUDICATOR: Teresa Walsh
APPEARANCES:
For the Applicant: Camille Narine-Ramrattan, Paralegal
For the Respondent: Shawn Macdonald, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Mohammed Ahmed, the applicant, was involved in an automobile accident on March 8, 2019. The applicant sought benefits from the respondent, Certas Direct, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The respondent denied the benefits in dispute on the basis that the applicant sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (“MIG”). The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. 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 in the MIG? Note: The parties agree that the MIG limits have been exhausted.
ii. Is the applicant entitled to the following treatment plans proposed by Midland Wellness Centre:
a) $1,468.81 for physiotherapy services, dated November 9, 2019; and
b) $2,797.76 for physiotherapy services, dated January 24, 2019?
iii. Is the respondent liable to pay an award under s. 10 of O. Reg 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the respondent entitled to costs of $1,000.00 from the applicant?
RESULT
4The applicant has not met his onus of proving that his accident-related injuries warrant removal from the MIG. As the MIG limits have been exhausted, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary. Further, as no benefits were unreasonably withheld or delayed, no award is payable. The application is dismissed.
5The respondent is not entitled to costs.
PROCEDURAL ISSUES
Applicant’s Late-Delivered Productions
6The Case Conference Report and Order (“CCRO”) for this matter provided that the parties were to exchange specified documents (“productions”) within 90 days of the case conference held on September 22, 2022. There is no disagreement that the respondent provided its productions by the December 22, 2022 deadline. However, it was not until June 22, 2023, the date his submissions and evidence for this hearing were delivered, that the applicant provided some of his productions. The applicant provided additional productions on June 23, 2023.
7In advance of the due date for the applicant’s hearing materials, the respondent asked the applicant about the status of his productions and requested evidence of attempts made to obtain them. The applicant responded that he had produced all records in his possession, was continuing to request outstanding records, and that he would advise further in his submissions. In his hearing submissions, the applicant offered no reasonable explanation for failing to comply with the CCRO production order deadline, stating simply that he “made best efforts … [h]owever, it has been very difficult to receive the productions within the time frame as requested”.
8Ultimately, the applicant has delivered few of the productions required by the CCRO. The respondent does not argue that it will be prejudiced if the applicant’s few late-delivered productions are admissible. In the circumstances, I allow the applicant’s productions to be admitted into evidence, subject to consideration of their usefulness, as discussed below.
Disputed Treatment Plans are Not in Evidence
9The applicant did not include in his hearing evidence either of the treatment plans in dispute. The respondent argued that the applicant cannot meet his evidentiary burden in proving entitlement to the treatment sought in the absence of the plans.
10It was only in his reply submissions that the applicant addressed the missing treatment plans. The applicant stated that the treatment provider had supplied a “Response Summary” outlining the nature of each treatment plan and the cost. Further, the applicant submitted that the respondent should have all treatment plans in its possession.
11As I have not found that the applicant’s injuries fall outside the MIG, I do not need to address the reasonableness and necessity of the treatment plans sought or the fact that the plans themselves were not provided.
Applicant’s Failure to Provide Award Particulars
12The applicant failed to comply with the CCRO by providing particulars of the s. 10 award sought, 30 days after the respondent produced adjusters’ log notes, redacted for privilege and reserves.
13The applicant’s initial submissions were silent on his failure to provide any award particulars. In his reply submissions, the applicant stated only that he is entitled to an award and that he “did not find it beneficial to respond to the redacted log notes as the notes clearly redacted pertinent information”.
14The respondent argued that the applicant’s award claim should be dismissed, based on the failure to provide particulars as required by the CCRO.
15While the applicant failed to provide s. 10 award particulars as required by the CCRO, there is no basis for an award in any event given my finding that no benefits were unreasonably withheld or delayed by the respondent.
ANALYSIS
Applicant’s Injuries Do Not Fall Outside the MIG
16I find the applicant has not met his burden in establishing that his accident-related injuries fall outside the definition of a minor injury as set out in s. 3(1) of the Schedule.
17Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the 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.”
18An insured person 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 from any accident-related minor injury if they are kept within the MIG confines. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
19In all cases, the burden of proof in establishing removal from the MIG lies with the applicant.
20Here, the applicant’s very brief submissions on accident-related injuries referenced “pain encountered to date” in the applicant’s “shoulders, neck, back and legs from sitting in an upright position for long periods throughout the day”.
21In support of the submission that his accident-related pain is ongoing and non-minor, the applicant referred to an appointment at a family medicine clinic. The appointment took place on June 6, 2021, more than two years post-accident. While the applicant submitted that he complained of left shoulder pain “related to the accident” at this appointment, the medical record for the appointment actually provided:
“left shoulder pain x 4 months intermittent more on movements, mainly on internal rotation MVA 2019, hit from back, did not have pain at that time”
22This medical record, indicating intermittent pain over four months, 24 months post-accident, and no pain at the time of the accident, contradicts rather than supports the applicant’s argument that he has suffered continuing and non-minor injuries due to the accident.
23The applicant also pointed to an ultrasound and x-ray of his left shoulder carried out on June 19, 2021. The results of these tests were reported as “normal”. Once again, these records do not provide evidence of any ongoing, non-minor injuries from the accident entitling the applicant to treatment outside the MIG.
24The few additional records produced by the applicant from this family medicine clinic do not address complaints or injuries potentially related to the accident. No other objective medical evidence was produced by the applicant related to his claim for treatment outside the MIG.
25Records from treatment provider Midland Wellness Centre, provided by the applicant following his initial hearing submissions and evidence, indicated that the applicant complained of neck and lower back pain following the accident, which improved following therapy. Nothing in the Midland Wellness Centre records supports the applicant suffering from accident-related injuries requiring treatment outside the MIG. These records do not assist the applicant in meeting his burden of proof.
26The applicant’s submissions make no mention, nor is there any evidence, of a documented, pre-existing injury or condition with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if the applicant remains within the MIG. Further, there is no evidence of the applicant suffering from chronic pain with a functional impairment, or of a psychological injury, warranting treatment outside the MIG.
27In sum, the applicant is not entitled to treatment outside the MIG as he has failed to establish that:
i. he sustained any non-minor injuries in the accident;
ii. he suffers from a documented, pre-existing injury or condition from which recovery from any accident-related minor injury will be precluded if treatment is maintained within the MIG; or
iii. he suffers from chronic pain with a functional impairment, or a psychological injury, warranting treatment outside the MIG.
No Need to Address Reasonableness/Necessity of Disputed Treatment Plans
28Sections 14 and 15 of the Schedule provide that the insurer shall pay medical and rehabilitation benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical and rehabilitation benefits sought in a treatment plan are a reasonable and necessary expense.
29The applicant bears the onus of establishing entitlement to a proposed treatment plan by proving it is reasonable and necessary on a balance of probabilities.
30The disputed treatment plans here fall outside the MIG framework, whereas I have found the applicant’s injuries fall within the MIG. As the $3,500.00 maximum for medical benefits available under the MIG has been exhausted, I need not determine if the disputed treatment plans are reasonable and necessary.
Award
31The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As no benefits were unreasonably withheld or delayed by the respondent, the applicant is not entitled to an award.
Costs
32The respondent’s request for costs is denied.
33Rule 19 of the Tribunal’s Common Rules of Practice and Procedure permits costs to be awarded if a party to a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. In deciding whether to award costs, several factors are to be considered by the Tribunal: the seriousness of the conduct, whether the conduct was in breach of a Tribunal order, whether the behaviour interfered with the Tribunal’s ability to carry out a fair, efficient and effective process, prejudice to the other party, and the potential impact a costs order would have on individuals accessing the Tribunal system. Under Rule 19.5, the Tribunal may award a different cost amount than requested.
34The threshold for costs is high.
35In seeking costs of $1,000.00 from the applicant, the respondent argued among other things that the applicant failed to obtain and produce certain documents as required by the CCRO, misrepresented evidence, included with his written submissions incorrect information and fraudulent documents regarding his income replacement benefit (IRB) claim, and acted unreasonably and in bad faith by failing to be considerate of the Tribunal’s process.
36The applicant denied that he engaged in any unreasonable, wrongful or inconsiderate actions in this proceeding as alleged by the respondent.
37As the applicant earlier withdrew his claim for an IRB, I have not considered the respondent’s submissions that the applicant lied and relied on fraudulent documents in support of that claim. None of the applicant’s submissions or documents provided regarding his alleged employment supported his claim for treatment outside the MIG.
38While I agree with the respondent that the applicant failed to:
i. comply with the CCRO;
ii. provide any meaningful explanation for his non-compliance; and
iii. accurately describe medical evidence relied on in support of his claims, the respondent did not point me to any evidence that it was prevented from defending the case before it.
39The applicant’s failures described above undermined his own case. Given the lack of supporting documents for his claims, he could not establish that his accident-related injuries entitled him to treatment outside the MIG. I find that the dismissal of the application adequately addresses the applicant’s conduct related to the claims advanced in this hearing.
40Accordingly, I deny the respondent’s request for costs.
ORDER
41The application is dismissed. I find that:
i. the applicant’s injuries are predominately minor and therefore subject to treatment within the MIG limits;
ii. as the MIG limits have been exhausted, the applicant is not entitled to either of the two disputed treatment plans;
iii. as no benefits were unreasonably withheld or delayed by the respondent, no award is payable; and
iv. no costs are awarded to the respondent.
Released: November 22, 2023
Teresa Walsh
Adjudicator