Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-003963/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:
Ali Khan
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Ryan Jeffries, Paralegal
For the Respondent: Bryan Chin, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Ali Iqubal Khan, the applicant, was involved in an automobile accident on January 10, 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, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The Case Conference Report and Order (“CCRO”) dated July 9, 2022, set out a deadline for submissions and evidence for both the applicant and the respondent. The parties agreed to disclose any documents that had not been previously disclosed but which they intend to present as evidence at the hearing by July 29, 2022.
3The respondent submits that the clinical notes and records (“CNRs”) from William Osler Health System dated January 10, 2019, and the CNRs from Physiomed, dated April 30, 2021, were not produced by the July 29, 2022, document exchange deadline and should be barred from consideration. The applicant did not provide submissions on the alleged delay.
4If the applicant did not disclose these two CNRs by July 29, 2022, the applicant would have failed to comply with the CCRO; however, the respondent did not submit that the applicant failed to submit the CNRs or when the CNRs were received. Furthermore, the respondent did not make submissions on any prejudice it faced with the delayed CNRs. With no argument on prejudice to the respondent, I am not persuaded to bar the CNRs.
5I would be remiss if I did not caution the parties that anytime there is non-compliance with a previous Tribunal order, parties risk exclusion of the submissions or evidence or both.
ISSUES
6The following issues are to be decided:
i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?1
ii. Is the applicant entitled to $2,260 for psychological services proposed by Medex Assessments Inc in a treatment plan (“OCF-18”) dated March 22, 2019?
iii. Is the applicant entitled to $2,147 for attendant care assessment proposed by Medex Assessments Inc. in OCF-18 dated April 23, 2019?
iv. Is the applicant entitled to $1,568 for physiotherapy proposed by Physiomed in OCF-18 dated April 1, 2021?
v. Is the applicant barred from seeking payment of $1,568 for physiotherapy, because he failed to attend an insurer’s examination?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that:
i. The applicant’s injuries are predominately minor and are therefore subject to treatment within the $3500.00 limit of the MIG;
ii. The OCF-18s in dispute are not payable; and
iii. The applicant is not entitled to interest.
ANALYSIS
8The applicant was injured in a motor vehicle accident on January 10, 2019. The applicant attended the emergency department at William Osler Hospital, the attending physician diagnosed him with soft tissue injuries, medical imaging revealed no fracture or dislocation.
APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)
9The 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.”
10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
11An applicant may receive payment for treatment beyond the $3,500.00 limit 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 an injury that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
12It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.2
The applicant is not removed from the MIG
13I find that the applicant has not met his onus to demonstrate that he should be removed from the MIG.
14The applicant submits that as a result of stiffness in his neck, back and left shoulder, pain in his knee and left ankle he attended the emergency department at William Osler Hospital, the attending physician diagnosed him with soft tissue injuries, medical imaging revealed no fracture or dislocation. These soft tissue injuries are consistent with minor injuries. Following the accident, the applicant attended chiropractic sessions at Physiomed from February 21, 2019, until May 27, 2019. The applicant was provided exercises to build up strength.
15I find that the applicant failed to make any argument or analysis guiding me through the evidence on which he relies. The applicant’s evidence included a an OCF-1, the CNRs from William Osler Hospital, and the CNRs from Physiomed, however, I am not persuaded that the applicant connected his submissions to the evidence. Furthermore, it is unclear on what basis the applicant seeks to be removed from the MIG, as the submissions made highlight minor injuries. This is enough to dismiss the application without reference to the respondent’s evidence, though I still considered it as noted below.
16It is trite that the Tribunal does not have a duty to sift through evidence in order to make the case for the applicant, to do so risks the Tribunal inappropriately acting as an advocate for a party instead of a neutral arbiter in a dispute. The submissions made by the applicant highlight minor injuries.
17I am persuaded by the respondent’s submissions. The respondent submits that the applicant’s injuries are predominately minor, and that the applicant has fails to demonstrate how injuries to his head, back, left shoulder, left ankle and left leg could not be treated within the MIG.
18Furthermore, the respondent provides that the applicant did not adduce any medical evidence from a health practitioner suggesting there would be any reason to prevent him from achieving maximal recovery from any accident-related injuries were he subject to the MIG.
19The medical evidence from the emergency department suggests that the applicant obtained soft tissue injuries following the accident. Furthermore, the CNRs of Dr. Muhammad Hack, family physician dated April 12, 2021, only referenced by the respondent’s submissions, do not contain any medical evidence that would demonstrate that the applicant’s injury is not minor.
20Based on the medical evidence before me, I find that the applicant’s injuries fall within the definition of minor injury, and therefore the applicant’s injuries do not warrant a removal from the MIG.
21Therefore, the applicant is not entitled to any of the treatment plans in dispute.
Interest
22Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest.
ORDER
23I find that:
i. The applicant’s injuries are predominately minor and are therefore subject to treatment within the $3500.00 limit of the MIG;
ii. The OCF-18s in dispute are not payable; and
iii. The applicant is not entitled to interest.
24The application is dismissed.
Released: July 24, 2023
__________________________
Monica Ciriello
Vice-Chair
Footnotes
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).