Licence Appeal Tribunal File Number: 20-010058/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:
Amir Akhavan-Yekta
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Kameliya Stancheva, Paralegal
For the Respondent: Jessica Bacopulos, Counsel
HEARD: By way of written submissions
OVERVIEW
1Amir Akhavan-Yekta, (“AAY”) the applicant, was involved in an automobile accident on August 17, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). AAY was denied benefits by the respondent, Certas, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The issues to be decided are:
i. Are AAY’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 (the “MIG”)?
ii. Is AAY entitled to $148.81 for chiropractic services, recommended by Toronto Medical Centre in a treatment plan (OCF-18) dated January 15, 2019?
iii. Is AAY entitled to $1,656.81 for chiropractic services, recommended by Toronto Medical Centre in an OCF-18 dated January 31, 2019?
iv. Is AAY entitled to $60.00 for transportation expenses, recommended by Toronto Medical Centre in an OCF-18 dated December 11, 2018?
v. Is AAY entitled to $1,789.00 for a psychological assessment, recommended by Toronto Medical Centre in an OCF-18 dated October 29, 2018?
vi. Is AAY entitled to interest on any overdue payment of benefits?
RESULT
3Based on a review of the evidence, I find that AAY suffered predominantly minor injuries. Accordingly, he is not entitled to any of the OCF-18s as he has not established that they are reasonable and necessary.
ANALYSIS
Did AAY suffer predominantly minor injuries as a result of the accident?
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.” An insured 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 if they are kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.
5An insured may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). In this case, the evidence does not support a removal from the MIG as a result of a psychological impairment.
6AAY’s submissions fell far short of meeting his onus in proving why his injuries should be removed from the MIG. His submissions did not address what his accident-related impairments he had or how they do fit not within the MIG. AAY’s submissions referred to case law, but very little evidence. Submissions referring to case law is not evidence. Consequently, I find that AAY has failed to meet his burden of proof.
7The only evidence AAY relies on is an October 29, 2018 Disability Certificate (OCF-3) authored by Dr. Kate O’Hare, chiropractor. The injuries were listed as, other sprain and strain of cervical spine; WADII; neck muscle and tendon injury; thoracic spine pain, strain and sprain; thorax muscle and tendon injury; low back pain; sprain and strain of lumbar spine and sacroiliac joint; abdomen muscle and tendon, lower back and pelvis injury; sprain and strain of ribs and sternum, headache; tension-type headache; nervousness; acute pain; and other reactions to severe stress.
8Under Part 6 of the OCF-3, it indicates that AAY is substantially unable to perform the essential tasks of his employment, however, it notes that he returned to work on a trial basis. The OCF-3 goes on to note that AAY does not suffer a complete inability to carry on a normal life.
9I find the OCF-3 unhelpful for a number of reasons. First, despite noting that AAY is substantially unable to perform the essential tasks of his employment, he has returned to work. Second, the injuries that are listed on the OCF-3 fall within the definition of “minor” under the Schedule. Third, the anticipated duration of injury is 9-12 weeks. Additionally, despite the “return to work on a trial basis”, AAY did not miss any time from work following the accident. Lastly, at the time of the accident, AAY was a high school student, he returned to school on the scheduled start date of September 3, 2018.
10AAY did not meet his onus in proving that his injuries are not predominantly minor.
11I find that AAY has fallen far short in meeting his onus in proving that he suffered a psychological impairment as a result of the accident that requires treatment beyond the MIG limits.
Interest
12Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
13Having determined that AAY is not entitled to any benefits, no interest is owing.
ORDER
14AAY suffered predominantly minor injuries which are treatable within the MIG limits. The disputed OCF-18s are not reasonable and necessary.
Released: March 30, 2023
Derek Grant
Adjudicator