Licence Appeal Tribunal File Number: 20-014423/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:
Jones Osemeka
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Camille Narine-Ramrattan, Paralegal
For the Respondent: Jennifer N Marquis, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1Jones Osemeka, (“the applicant”) was involved in an automobile accident on April 12, 2019 and sought benefits from Certas Direct Insurance Company (“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, fell 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 the MIG?
Is the applicant entitled to $1,779.20 for physiotherapy services, recommended by Midland Wellness Centre, in a treatment plan (OCF-18) submitted on July 13, 2020?
Is the applicant entitled to $1,995.33 for psychological assessment, recommended by Midland Wellness Centre, in a treatment plan (OCF-18) submitted on August 20, 2020?
Is the applicant entitled to $2,564.96 for physiotherapy services, recommended by Midland Wellness Centre, in a treatment plan (OCF-18) submitted on February 11, 2020?
Is the applicant entitled to $1,973.72 for physiotherapy services, recommended by Midland Wellness Centre, in a treatment plan (OCF-18) submitted on September 4, 2020?
Is the applicant entitled to $2,860.58 for physiotherapy services, recommended by Midland Wellness Centre, in a treatment plan (OCF-18) submitted on January 5, 2020?
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. I also find that the proposed treatment plans are not payable. 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. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
7Clinical notes and records were submitted from Dr. Ayokundle Fagbemigun, the applicant’s family physician, covering the period from March 1, 2017 to February 22, 2022. The notes reveal that the applicant did not visit Dr. Fagbemigun following the accident, there is no reference to any injuries due to the accident and there is no evidence treatment was sought as a result of the accident.
8The first visit with Dr. Fagbemigun following the accident was on June 10, 2019 when the applicant attended for a refill of his hypertension medication. Dr. Fagbemigun stated that the applicant was, “Doing OK”. There was no mention of the applicant being involved in an accident.
9The applicant was involved in a second automobile accident on August 18, 2019. Between the first accident and the second, the applicant saw Dr. Fagbemigun four times in total, all for reasons unrelated to an accident. None of the four visits even referenced the accident. The first accident-related complaints from the applicant were made during a visit on August 27, 2019, nine days after the second accident. The applicant reported injuries from the second accident. Dr. Fagbemigun noted neck, left shoulder and hip pain and prescribed post-accident rehab.
10The applicant submits that the treatment in the disputed OCF-18s is required due to injuries sustained in the first accident. However, there is no evidence to support this position. For the purposes of this application, I am only adjudicating the applicant’s entitlement to benefits resulting from the April 12, 2019 accident.
11The OCF-1 for the April 12, 2019 accident was not completed until August 29, 2019, 11 days after the August 18, 2019 accident.
12It is clear from the pattern of events that the injuries sustained were a result of the second accident. Despite the applicant’s submissions to the contrary, there is no evidence before me that the applicant sustained injuries that were more than minor in the April 12, 2019 accident.
13For the reasons above, I cannot find that the applicant has met his burden, on a balance of probabilities, to prove he suffered an injury from the accident on April 12, 2019 which would warrant removal from the MIG.
Disputed Treatment Plans
14The applicant is subject to treatment within the $3,500.00 limit and the MIG. Given the applicant has reached the $3,500.00 limit, consideration of the disputed treatment plans is not required.
Interest
15As there are no benefits owing, no interest is payable.
ORDER
16For the reasons outlined above, I find that:
(i) The applicant has not sustained injuries that fall outside of the definition of a minor injury under the Schedule;
(ii) The applicant is not entitled to any of the disputed OCF-18s;
(iii) No interest is payable.
17The application is dismissed.
Released: February 24, 2023
Julian DiBattista
Vice-Chair