Dheri v. Economical Insurance, 2023 CanLII 15057
Licence Appeal Tribunal File Number: 20-012007/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:
Amandeep Dheri
Applicant
and
Economical Insurance
Respondent
AMENDED DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Yousef Jabbour, Counsel
For the Respondent: Ashleigh Leon, Counsel
HEARD: By way of written submissions
BACKGROUND
1Amandeep Dheri (“the applicant”) was involved in an automobile accident on January 31, 2018, and sought benefits from Economical Insurance (“the respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”)
2The respondent denied the applicant’s claims, as it had determined that all of the applicant’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (MIG). As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.
ISSUES IN DISPUTE
3The issues to be decided in the hearing are:
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?
Is the applicant entitled to $399.00 for physiotherapy treatment proposed by Headwaters Rehabilitation in a treatment plan which was denied on June 19, 2018?
Is the applicant entitled to $2,249.75 for physiotherapy treatment proposed by Orangeville Pro Medical in a treatment plan which was denied on October 23, 2018?
Is the applicant entitled to $2,680.00 for an orthopaedic assessment, proposed by Complete Rehabilitation in a treatment plan which was denied on December 20, 2018?
Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by Complete Rehabilitation in a treatment plan which was denied on January 14, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG. As MIG limits have been reached, the applicant is not entitled to the disputed treatment plans. As no benefits are payable, the applicant is not entitled to interest.
ANALYSIS
Minor Injury Guideline
5The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.
6Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment. According to the Divisional Court’s decision in Scarlett v. Belair, 2015 ONSC 3635, it is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
7Evidence in this claim is sparse and the written submissions refer to clinical notes and records, which do not justify removing the applicant from the MIG.
8The applicant relies on three pages of clinical notes and records from Dr. Vishwas Kini, the applicant’s family physician, that were submitted as evidence to the Tribunal.
9The first page documents two visits, one on September 8, 2017 and one on October 18, 2017. I note that both of these entries happened before the January 21, 2018 accident referenced in this application. It is of note that the October 18, 2017 visit was to report injuries sustained in an accident on September 29, 2017.
10The next page of clinical records from Dr. Kini documents a September 24, 2021 visit. There is a gap of three years in the applicant’s clinical history with Dr. Kini. Each disputed treatment plan was submitted during this gap. The final page of records documents a visit on February 23, 2022, five months after the previous visit.
11The only other medical evidence before me are the clinical notes and records of Physiomed Orangeville. However, these records cover two visits: an initial assessment conducted on October 9, 2018, and a clinical note dated November 2, 2018. These notes document visits to the applicant’s physiotherapist who is not licensed to diagnose.
12As an adjudicator, where it is the applicant’s burden to prove causation and entitlement, I cannot determine if the applicant suffers from injuries as a result of the accident that would justify removal from the MIG without evidence demonstrating causation and entitlement.
[13] The medical records submitted as evidence prove on the balance of probabilities that the applicant should be removed from the MIG.
14The only other evidence submitted which has been completed by a medical practitioner are the OCF-3 and OCF-18 forms submitted to the insurer. These forms alone are not sufficient to justify removal from the MIG, as there must be objective contemporaneous medical evidence to support the removal from the MIG beyond what is contained within these forms.
15For these reasons, the applicant has not provided evidence to the Tribunal to meet his onus, on a balance of probabilities, to prove he suffered an injury from the accident on January 31, 2018 which would warrant removal from the MIG.
Disputed Treatment Plans
16As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.
Interest
17As there are no benefits owing, no interest is payable.
ORDER
18For the reasons outlined above, I find that:
(i) The applicant has not sustained injuries that fall outside of the definition of minor under the Schedule;
(ii) The applicant is not entitled to any disputed OCF-18s;
(iii) No interest is payable; and
(iv) This application is dismissed.
Released: March 20, 2023
Julian DiBattista
Vice-Chair