Licence Appeal Tribunal
20-013020/AABS
Licence Appeal Tribunal File Number: 20-013020/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:
Aurelio Bonilla-Lopez
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Christopher D. Finlay, Counsel
For the Respondent: Khelan Soogrim, Counsel
HEARD: By way of written submissions
OVERVIEW
1Aurelio Bonilla-Lopez, (“applicant”) was involved in an automobile accident on December 11, 2018, and sought benefits from Belair Direct Insurance Company (“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 MIG?
- Is the applicant entitled to a medical benefit in the amount of $1,280.00 for physiotherapy treatment, proposed by Dr. Toffy Kobrossi in an OCF 18 dated May 6, 2019?
- Is the applicant entitled to a medical benefit in the amount of $1,600.00 for physiotherapy treatment, proposed by Dr. Toffy Kobrossi in an OCF 18 dated October 5, 2020?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has met their onus of proving that he has a documented pre-existing condition that prevents maximal medical recovery under the MIG limits. The applicant is entitled only to the disputed treatment plan dated May 6, 2019, and interest as per the Schedule.
ANALYSIS
Written submission page limits
5In a case conference held on August 17, 2021, Vice-Chair (“VC”) Aquilina ordered a 10-page limit on initial written submissions for both the applicant and respondent and a 5-page limit on the applicant’s reply submissions.
6In their reply submissions, the applicant raises an objection to the respondent not respecting the 10-page limit ordered by VC Aquilina. The respondent had submitted 11 pages of written submissions.
7VC Aquilina’s order was issued on the consent of both parties in the dispute. Her order also states that the hearing adjudicator may choose not to consider submissions which exceed the page limits, leaving the application of this order in my hands.
8Submissions for both parties to this dispute were written by counsel licensed by the Law Society of Ontario, who ought to know the risks of disregarding an order issued by the Tribunal.
9As these limits were issued on consent and are reasonable and proportionate to the issues in dispute (MIG, two OCF-18s for physiotherapy treatment and interest), I will not be considering page 11 of the respondent’s submissions when making my decision.
Minor Injury Guideline
10The 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.
11Section 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 under s. 18(2) 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.
The Applicant Suffers from a Pre-existing Condition
12The applicant submits that they should be removed from the MIG as a result of a pre-existing medical condition under s. 18(2). The applicant has been attending treatment with Dr. Toffy Kobrossi for back issues from prior collisions since April 2, 2012. In his report, Dr. Kobrossi notes that the applicant was suffering from “low back pain, plus left sciatic and cervical pain” prior to the accident.
13The applicant attended Humber River Hospital on the date of the accident and was diagnosed with “MSK [musculoskeletal] shoulder pain”. He then saw Dr. Kobrossi the following day, who provided a diagnosis of:
a. whiplash associated disorder type-II (“WAD II”)
b. Dorsal/intercostal strain
c. Shoulder girdle strain
d. Lumbar spine strain
e. Headache and light-headedness.
14It is well settled that a pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.
15The applicant submits a report from Dr. Kobrossi dated February 24, 2022, that states, “It is my professional opinion as a health practitioner providing chiropractic and rehabilitation treatment to patients at my clinic for over 45 years, that in a situation such as this where a subsequent back injury as a result of a motor vehicle accident is superimposed on an ongoing, pre-existing chronic/recurrent back pain, treatment will be required in excess of the $3500.00 of the MIG. The pre-existing condition makes the aggravating back injury more complicated to treat and will take longer to recover.”
16I am satisfied based on the clinical notes and records of Dr. Kobrossi that the applicant suffers from a pre-existing condition. The applicant saw Dr. Kobrossi over 40 times between 2015 and the date of the accident. With a frequency of 2-3 visits a month between August and December of 2018. There is no doubt the applicant was actively receiving treatment for a pre-existing condition at the time of the accident.
17I am also swayed by Dr. Kobrossi’s report. The recommendation of a medical professional, who was seeing the applicant frequently at the time of the accident is most persuasive. Dr. Kobrossi would be in the best position to see the contrast between the pre and post accident condition and how the maximal medical recovery would be impacted. I accept his finding that maximal medical recovery cannot be expected within the limits of the MIG.
18I do not give significant weight to the Insurer’s Examination report provided by the respondent. Dr. Mohamed Khaled, a family physician, saw the applicant on December 17, 2021. Dr Khaled’s report was mostly silent on section 18(2) and he was not provided with any documentation from Dr. Kobrossi. I cannot give significant weight to his finding on section 18(2) as he did not have access to evidence that I consider material to forming an opinion.
19Therefore, I find that the applicant has met the test for removal from the MIG based on a pre-existing condition that requires treatment outside of the MIG for maximal medical recovery.
Disputed Treatment Plans
The Applicant is Entitled to a plan dated May 6, 2019
20Dr. Kobrossi was clear in his comments that treatment beyond the $3,500 MIG limits would be required for the applicant to achieve maximal medical recovery. Dr. F Chen, the applicant’s family physician also prescribed physio and chiro during a visit in February of 2019, the visit immediately preceding this treatment plan. Therefore, I am convinced this treatment plan is reasonable and necessary.
The Applicant is Not Entitled to a plan dated October 5, 2020
21Dr. Chen noted that the applicant had back pain in a visit on October 30, 2019. The applicant then saw Dr. Chen eleven times between that visit and September 14, 2021. These visits were all unrelated to the back pain experienced, and there was no reference to it. The applicant had been regularly seeing Dr. Kobrossi at the time this treatment plan was submitted, the clinical notes and records are illegible, and I cannot infer a prognosis or course of treatment. As the burden of proof rests with the applicant, I am not convinced this treatment plan is reasonable or necessary without supporting medical evidence.
Interest
22The applicant is entitled to interest on the amount of $1,280.00as per the Schedule.
ORDER
23For the reasons outlined above, I find that:
(i) The applicant is removed from the Minor Injury Guideline
(ii) The applicant is entitled to:
i. $1,280 for treatment identified in the plan dated May 6, 2019; and
ii. Interest as per the Schedule.
Released: April 4, 2023
__________________________
Julian DiBattista
Vice-Chair