Licence Appeal Tribunal File Number: 21-000306/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:
Jamroze R. Khan
Applicant
and
Unifund Assurance Company
Respondent
DECISION
VICE-CHAIR: Ian Maedel
APPEARANCES:
For the Applicant: Ioulia Logoutova, Paralegal
For the Respondent: Vanessa Horsburgh, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jamroze Khan, the applicant, was involved in an automobile accident on June 6, 2019, 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, Unifund Assurance Company, 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 limit and in the Minor Injury Guideline?
ii. Is the applicant entitled to $3,478.00 for chiropractic services, proposed by Kinetic Care in a treatment plan/OCF-18 dated October 19, 2020?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent entitled to costs pursuant to Rule 19 of the Tribunal’s Common Rules of Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017) (“Common Rules”)?
RESULT
3I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
4Having found that the applicant sustained a minor injury as a result of the accident, he is not entitled to the disputed OCF-18 because it proposes goods that fall beyond the MIG and the $3,500.00 funding limit on treatment.
5Given there are no benefits owed, or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
6The respondent is not entitled to costs pursuant to Rule 19 of the Common Rules.
ANALYSIS
The Minor Injury Guideline (“MIG”)
7The 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.
8An insured person 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.
9Section 18(1) of the Schedule limits funding for medical and rehabilitation benefits for predominantly minor injuries to a cap of $3,500.00. An applicant may receive funding for treatment beyond the $3,500.00 limit if they can provide evidence of an injury that is not included in the minor injury definition.
10It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. (See: Scarlett v. Belair Insurance, 2015 ONSC 3635, paragraph 24 (Div. Ct).)
11The applicant submits he suffered from pre-existing back pain that would prevent maximal recovery if subject to the MIG limits. The respondent submits the applicant has failed to meet his evidentiary onus, as the evidence tendered does not support the position that he suffered a pre-existing condition that falls outside the scope of the MIG.
The applicant has not established he suffers from a pre-existing impairment that precludes his recovery in the MIG
12I am not persuaded the applicant has established on a balance of probabilities that he suffered from any pre-existing condition which would otherwise preclude his recovery following the accident if he is subject to the MIG and the $3,500.00 treatment funding limit.
13Pursuant to s. 18(2) of the Schedule, a pre-existing condition does not automatically exclude a person’s impairment from the MIG. Such a condition must have been documented by a health professional before the accident and shown to prevent maximal medical recovery within the cap imposed by the MIG.
14The OCF-18 dated October 19, 2020 prepared by O. Chaudry, physiotherapist, indicates the impairments sustained included sprain and strain of the lumbar spine and were outside of the MIG. However, it listed no prior conditions, nor any subsequent condition or injury that could affect his response to treatment for the injuries identified.
15The applicant submits he suffered from pre-existing low back pain that was exacerbated by the subject accident. However, the pre-accident clinical notes from his family physician, Dr. Iskander, do not indicate any previous reports of back pain. In fact, the applicant only reported back pain twice, the first on September 5, 2019 when he reported the accident and indicated his lower back pain was improving with physiotherapy. The second report was a year later on September 9, 2020, when he reported pain while bending and was diagnosed with mechanical back pain. The applicant was not referred for any diagnostic imaging and was advised to control his pain with over-the-counter medication.
16Clinical notes and records (“CNRS”) from WellLife Centre also fail to establish the applicant was suffering from pre-accident back pain. The initial patient profile states that the applicant had no past injuries or accidents, nor any medical conditions. On June 10, 2019, the applicant reported a previous work-related injury, but indicated it was fully resolved by the time of the accident. Otherwise, these treatment records demonstrate that the applicant’s condition was improving, and by July 2019, his back was “feeling much better.”
17Additional CNRs contain entries related to shoulder pain. However, neither the ultrasound report dated July 8, 2021 nor the consultation with Dr. P. Gopie on August 10, 2021 tied this pain to the accident. Rather, Dr. Gopie indicated this pain followed a workplace injury three or four months prior. Otherwise, these additional medical documents do not make any link between the accident and any pain-related symptoms.
18Conversely, I place weight upon the two uncontradicted insurer’s examination (“IE”) reports provided by Dr. R. Williams, physiatrist. In the first report dated December 10, 2020, the applicant indicated his lower back pain symptoms had improved 80% since the accident and that he had ceased all physical treatment for this pain. Following a physical examination, Dr. Williams diagnosed the applicant with lumbar spine sprain/strain with no clinically relevant features of radiculopathy. He further noted that the applicant’s accident-related impairments fell within the definition of a minor injury.
19In his second report dated June 10, 2022, Dr. Williams reviewed additional CNRs from the applicant’s family physician and treatment providers, including WellLife Centre. The applicant reported a 90% improvement in his lower back pain, and that he remained independent with his personal care and pre-accident housekeeping tasks. However, he had not returned to his pre-accident Taekwondo lessons. Otherwise, Dr. Williams indicated that the additional documents did not alter his previous opinion and conclusions.
20The evidence tendered by the applicant does not establish he suffered pre-accident lower back pain, nor that this impairment would prevent maximal recovery within the MIG. The CNRs detail only two reports of lower back pain following the accident. Similarly, the treatment records indicate his previous lower back pain had resolved by the date of the subject accident. Otherwise, the records from WellLife establish that his back pain was improving, which accords with his report to Dr. Williams that his back pain had improved by 90% in 2022. As Dr. Williams provided the sole expert reports tendered in this matter, I place weight upon his conclusions that the applicant’s accident-related impairments fell within the definition of a minor injury and could be treated within the MIG.
21When I consider the totality of the evidence tendered, I cannot conclude the applicant suffered a pre-existing condition preventing maximal recovery within the MIG.
The applicant is not entitled to the treatment plan/OCF-18 in dispute
22Having found that the applicant sustained a minor injury as a result of the accident, it follows that he is not entitled to the disputed treatment and assessment plan, as it proposes goods and services that fall outside of the MIG and the $3,500.00 funding limit on treatment.
The applicant is not entitled to interest
23Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
The request for costs is denied
24The respondent’s request for costs is denied. Costs are a discretionary remedy imposed when a party has acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1 of the Common Rules. The threshold for costs is high, and they are rarely awarded.
25I do not find the respondent has established that the applicant acted unreasonably, frivolously, vexatiously, or in bad faith pursuant to Rule 19.1. Although the applicant was ultimately unsuccessful in establishing his injuries fell beyond the MIG, he should not otherwise be penalized for failing to meet his evidentiary burden. In my opinion, this falls short of the threshold for costs. Thus, no costs shall be awarded.
ORDER
27The application is dismissed, and I find that:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the disputed OCF-18, as it proposes goods that fall beyond the MIG and the $3,500.00 funding limit on treatment;
iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule;
iv. The respondent is not entitled to costs pursuant to Rule 19 of the Common Rules.
Released: July 7, 2023
Ian Maedel
Vice-Chair