Citation: Rowe v.The Co-operators General Insurance Company, 2023 ONLAT 21-009545/AABS

Licence Appeal Tribunal File Number: 21-009545/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:

Felecia Rowe

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Russell Tilden, Counsel,

HEARD:

By Way of Written Submissions

OVERVIEW

1Felecia Rowe, the applicant, was involved in an automobile accident on January 29, 2020, 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, The Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2Prior to making submissions on the substantive portion of the application, the respondent states that while it will not seek a remedy, the applicant failed to meet the production deadlines put forth in the Tribunal’s Case Conference Report and Order. The applicant did not address this claim in reply submissions.

3With no argument on prejudice by the respondent, I am not persuaded to bar the applicant’s submissions. However, I 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

4The 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 $3,486.50 for chiropractic services proposed by Aqua Wellness. in a treatment plan (“OCF-18”) submitted October 6, 2020?

iii. Is the applicant entitled to $3,576.50 for chiropractic services proposed by Aqua Wellness. in a treatment plan (“OCF-18”) submitted July 21, 2020?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5I 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

APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)

6The 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.”

7Section 8(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.

8An 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.

9It 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

10I find that the applicant has not met her onus to demonstrate that she should be removed from the MIG. The applicant did not specify on what basis she seeks to be removed from the MIG, as the submissions made no reference to any injuries

11In support of her position, the applicant submits that she visited her family doctor in February 2020 and x-rays were ordered. Within the applicant’s submissions, there are no dates of appointments provided, the name of the applicant’s family doctor, the clinical notes and records (“CNRs”) or the x-ray results. The applicant states that the family doctor did not produce these records despite numerous requests. There is no evidence within the submissions of any requests made by the applicant to the family doctor. The applicant does provide her OHIP Summary: personal claims history from 2015-2022 but makes no specific reference to any service date in her submissions. The applicant submits that on February 4, 2020, she attended Aqua Wellness Centre to receive treatment that continued until January 29, 2021.

12At no point in her submissions did the applicant indicate what her injuries were. Rather, the applicant submits that the respondent did not specify what type of injuries the applicant sustained in the accident and did not provide the applicant with an explanation about why her injuries were deemed to fall within the MIG.

13I find that the applicant failed to make any argument or analysis guiding me through the evidence on which she relies. The applicant provides her OHIP Summary: personal claims history from 2015-2022 but makes no specific reference to any service date in her submissions. It 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. Furthermore, it is unclear on what basis the applicant seeks to be removed from the MIG, as the submissions made no reference to any injuries. The applicant’s failure to satisfy this is enough to dismiss the application as it relates to the MIG without reference to the respondent’s evidence, though I still considered it as noted below.

14I am persuaded by the respondent’s submissions, that the applicant has not provided compelling evidence and has not satisfied her evidentiary burden to establish treatment is required outside the MIG. The respondent submits that the applicant made no arguments that her injuries and impairments are outside of the MIG.

15Furthermore, the respondent submits that the applicant’s injuries are predominately minor. Referencing the injuries listed on the applicant’s OCF-23, OCF-3, all OCF-18s and all OCF-21s which have identical language from Aqua Wellness Centre the applicant suffered “sprain and strain of other parts of shoulder girdle; injury of muscle and tendon at neck level; sprain and strain of thoracic spins; sprain and strain of lumbar spine; contusion of knee.”

16Based on the 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.

17Therefore, the applicant is not entitled to any of the OCF-18s in dispute.

Interest

18Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest.

ORDER

19I 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.

20The application is dismissed.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).