Licence Appeal Tribunal File Number: 21-006453/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:
Vincent Dela Cruz
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Agal Lankeswaran, Paralegal
For the Respondent: Robbie Brar, Counsel
HEARD: BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Vincent Dela Cruz, the applicant, was involved in an automobile accident on October 9, 2018, 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, Intact Insurance 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 (“MIG”)?
ii. Is the applicant entitled to medical services proposed by Finch Health Centre Inc., as follows:
- $535.60 for massage therapy, denied January 4, 2019;
- $3,324.98 for physiotherapy and chiropractic treatment, denied January 8, 2019;
- $2,630.54 for physiotherapy and chiropractic treatment, denied May 16, 2019; and
- $535.60 for massage therapy, denied September 16, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG.
ii. As the full MIG limit on medical benefits has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.
iii. As no benefits are owing, no interest is payable.
ANALYSIS
Minor Injury Guideline
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. 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.”
5An 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. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
The applicant has not established that his accident-related impairments warrant removal from the MIG
6The applicant submits that as a result of the accident, he sustained multiple injuries, including anxiety, sleep disturbances, neck and back pain, paranoia, depression and nightmares/ flashbacks. He contends that he should be removed from the MIG, on the basis of chronic pain and psychological impairments.
7I find that the applicant has failed to provide evidence demonstrating that he suffers from a chronic pain condition, or psychological impairments.
8The applicant submits and relies in large part on the clinical notes and records (“CNRs”) of his family physician, Dr. Nguyen. The applicant contends that these CNRs provide compelling evidence that he suffered from ongoing physical and psychological impairments as a result of the accident. However, I agree with the respondent that these CNRs are illegible, and as such, of little assistance to the applicant. Moreover, the CNRs include referral forms where Dr. Nguyen appeared to refer the applicant to other medical practitioners for consultations. However, no such medical records from any additional practitioners were submitted by the applicant.
9Despite having the right of reply, the applicant did not provide any reply submissions to address the respondent’s arguments that the CNRs were illegible, or to clarify or direct me to any specific CNR entry of Dr. Nguyen. No additional medical records or diagnostic imaging results were submitted by the applicant. As such, the applicant has not provided any persuasive medical evidence in support of his claims that he sustained chronic pain and psychological impairments as a result of the accident.
10The only other evidence submitted by the applicant was the Application (OCF-1) and Disability Certificate (OCF-3). However, these documents are forms used to apply for benefit claims, and are not comprehensive assessments or evidence of injuries sustained in an accident. In addition, despite that fact the applicant makes various claims of injuries in his submissions, it is well-settled that submissions alone are not evidence. Rather, the applicant must provide evidence in support of such submissions.
11The respondent conducted an insurer’s examination (“IE”) by Dr. Lawrence Walters. In a report dated March 11, 2019, Dr. Walters diagnosed the applicant with WAD-II, leg and lumbosacral strain, and found that the applicant did not have any functional or physical limitations. Dr. Walters opined that the applicant’s accident-related impairments were minor and that his prognosis was excellent. The applicant has not submitted any evidence to refute Dr. Walters’ findings. Although the applicant references his self-reports in the IE report of low back and neck pain as evidence of his ongoing impairments, I agree with the respondent that such self-reporting without additional corroborating evidence is not sufficient to establish a non-minor injury.
12In addition, even considering the applicant’s self-reports of back or neck pain, I find that they do not describe pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG. I agree with the respondent’s submissions and cited caselaw that mere self-reports of ongoing pain are not sufficient evidence of chronic pain. Rather, to warrant removal from the MIG, the pain must be of a severity that causes suffering and distress accompanied by functional impairment or disability. The applicant has provided insufficient evidence of such a functional impairment.
13Considering the evidence before me, and for the reasons cited above, I find the applicant sustained predominantly minor injuries and is subject to the MIG and the $3,500.00 funding limited provided by s. 18 of the Schedule.
14The parties confirmed at the case conference that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As 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.
Interest
15Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.
16As no benefits are overdue, no interest is payable under s.51.
ORDER
17For the reasons set out above, I find that:
(i) The applicant’s injuries fall within the MIG;
(ii) The applicant is not entitled the disputed treatment plans; and
(iii) The applicant is not entitled to interest.
18The application is dismissed.
Released: July 26, 2023
__________________________
Ulana Pahuta
Adjudicator