21-006644/AABS
Licence Appeal Tribunal File Number: 21-006644/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:
Grigori Dvoskine
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Tami Cogan
APPEARANCES:
For the Applicant: Marc Koplowitz, Counsel
For the Respondent: Aimee Draper, Counsel
HEARD: In Writing
OVERVIEW
1Grigori Dvoskine, the applicant, was involved in an automobile accident on December 19, 2016, 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, Aviva Insurance Canada, 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. 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 Minor injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to the amount of $3,281.98 for chiropractic services, proposed by Essential Physio Rehabilitation in a treatment plan/OCF-18 (“plan”) submitted on October 9, 2020, and denied on March 22, 2021?
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 applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 funding limit on treatment.
4The treatment plan in dispute is not payable.
5The applicant is not entitled to interest or an award.
6The application is dismissed.
ANALYSIS
The Minor Injury Guideline
7I find that the applicant has failed to demonstrate, on a balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG.
8The 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.”
9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
10An insured person may be removed from the MIG if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
11It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 limit on a balance of probabilities.
12The applicant submits he is suffering from serious impairments to his right shoulder, cervical spine, left hand numbness and exacerbation of pre-existing depression and anxiety. Furthermore, the applicant has been referred by his family physician for physiotherapy and chiropractic treatment, as well as to a chronic pain specialist. In support of his submissions, the applicant refers to medical records that were provided to the respondent.
13The respondent submits the applicant’s injuries fall within the MIG. The respondent relies on the insurer’s examination (“IE”) assessment conducted by Dr. Gordon in February 2021.
14I have received very brief submissions from the applicant, in the form of a two-page letter. The medical records referred to as being provided to the respondent have not been entered into evidence, and therefore cannot be considered in my decision. In fact, the applicant has not filed any supporting medical documentation for his assertion that the injuries he sustained are outside the definition of a minor injury. I find the respondent’s IE assessment report of Dr. Gordon to be persuasive. Based on Dr. Gordon’s physical examination of the applicant, she concluded the applicant’s injuries were within the definition of a minor injury, should be treated within the MIG, that he had reached maximum medical recovery, and that no further treatment was required. As it is the applicant’s burden to demonstrate removal from the MIG is warranted, and where the Tribunal was not presented with evidence in support of the applicant's submissions, it follows that the applicant cannot be successful with this claim.
15I find that the applicant has failed to demonstrate, on a balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG.
16I find there is insufficient evidence to determine that the treatment plan is reasonable and necessary.
17To 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. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
18The applicant submits the treatment plan in the amount of $3,281.98 for chiropractic services, proposed by Essential Physio Rehabilitation, was submitted to the respondent on October 9, 2020, and denied on March 22, 2021. The applicant’s submissions do not provide further details of the plan or indicate why the treatment plan should be found to be reasonable and necessary.
19The respondent submits the disputed treatment plan is not reasonable or necessary. In December 2016, the applicant submitted a treatment plan for and received chiropractic treatment as a result of the car accident. He discontinued the treatment due to lack of improvement in April 2017. In October 2020, the treatment plan in dispute was submitted to the respondent, which was denied due to lack of supporting medical documentation. At the time of the denial additional medical documentation was requested by the respondent pursuant to s. 33, but not received. The respondent denies that the 2016 car accident is the cause of the applicant’s complaints, four years later, in 2020.
20Again, I have received only a two-page letter for submissions from the applicant. The applicant has not indicated the treatment goals, nor how the goals would be met to a reasonable degree, nor that the cost of achieving the goals would be reasonable for the disputed treatment plan. Neither the treatment plan, nor any supporting medical documentation have been filed as evidence. Where the Tribunal was not presented with evidence in support of the applicant's submissions, it follows that the applicant cannot be successful with this claim. In any event, the applicant did not successfully demonstrate that removal from the MIG is warranted, so any proposed treatment plan beyond the MIG funding limit is not payable.
21Given the lack of evidence, and on a balance of probabilities, I find the treatment plan is not reasonable and necessary as a result of the MVA.
Interest
22As there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
Award
23As no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Regulation 664. Therefore, no award is payable.
ORDER
24I order the following:
i. The applicant remains within the MIG and is subject to its $3,500.00 funding limit.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. The applicant is not entitled to interest.
iv. The respondent is not liable to pay an award.
v. The application is dismissed.
Released: December 13, 2023
Tami Cogan
Adjudicator