Licence Appeal Tribunal File Number: 21-011907/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:
David Duarte
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Camille Narine-Ramrattan, Paralegal
For the Respondent:
Colleen Mackeigan, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1David Duarte (“the applicant”), was involved in an automobile accident on June 3, 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 BelairDirect (“the respondent”), 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 the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) at the rate of $185.00 per week from June 3, 2020 to date and ongoing?
iii. Is the applicant entitled to $2,538.16 for physiotherapy services, proposed by Alexmuir Wellness Centre in a treatment plan dated February 4, 2021?
iv. Is the applicant entitled to $3,795.38 for physiotherapy services, proposed by Alexmuir Wellness Centre in a treatment plan dated November 30, 2020?
v. Is the applicant entitled to $3,133.20 for physiotherapy services, proposed by Alexmuir Wellness Centre in a treatment plan dated June 16, 2021?
vi. Is the applicant entitled to $2,190.00 for a chronic pain assessment, proposed by Alexmuir Wellness Centre in a treatment plan dated September 1, 2021?
vii. Is the applicant entitled to $2,185.00 for a physiatry assessment, proposed by Alexmuir Wellness Centre in a treatment plan dated September 1, 2021?
viii. Is the applicant entitled to $2,125.00 for a psychiatric assessment, proposed by Alexmuir Wellness Centre in a treatment plan submitted on September 22, 2021?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained a minor injury as a result of the accident, as defined in section 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.
4The applicant is not entitled to the treatment and assessment plans or expenses in dispute because they propose goods and services that are not included in the MIG and above the funding limit.
5No interest is payable.
6The application is dismissed.
ANALYSIS
Minor Injury Guideline (MIG)
7Section 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.”
8An 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.
Pre-Existing Conditions
9The presence of pre-existing conditions alone is not sufficient to remove the applicant from the MIG. The applicant bears the onus and must adduce evidence to demonstrate not only that the pre-existing condition exists but also that it prevents him from achieving maximal recovery within the MIG. The applicant did not point me to any evidence that demonstrates this.
10The applicant’s sole submission on this issue is that the file from the Ontario Disability Support Program (“ODSP”) shows that he has a pre-existing medical condition that would prevent maximum medical recovery. The applicant does not state what that condition is or how it prevents him from reaching maximum medical recovery. A review of the file does not disclose on what basis he was found to qualify for ODSP. A review of the clinical notes and records of the family doctor show that he was diagnosed with bipolar disorder and ADHD. A disability certificate dated May 31, 2021 indicates that he had a prior accident in 2015, a prior partial tear of his left shoulder, history of carpal tunnel, ADHD, and bipolar disorder. No argument is made as to what evidence, if any, would point to why his pre-existing conditions prevent him from achieving recovery within the MIG. The applicant has not identified how these pre-existing medical conditions were affected by the accident, or how his recovery is impacted by these conditions.
11The applicant has not met his burden to prove that he had a pre-existing condition that prevents him from achieving maximal medical recovery within the MIG.
Non-Earner Benefits (NEBs)
12The test for entitlement to NEBs is set out in Section 12(1). It states that the applicant must prove that they suffer a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
13Section 3(7)(a) defines a “complete inability to carry on a normal life” as an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.
14It is well established that the test for NEBs is set out in the decision of Heath v. Economical Mutual Insurance Company 2009 ONCA 391 (“Heath”), wherein the Court of Appeal held that the analysis focuses on a comparison of the applicant’s pre- and post-accident activities over a reasonable period of time.
15The applicant has not met his burden to prove his entitlement to income replacement benefits. The applicant’s submissions provide a summary of clinical notes and records of the family doctor, hospital records, a pain clinic, prescription summary, and an OHIP summary. There is no reference to the legal framework that sets out the criteria needed to prove the issues in the test, such as the test to be met to qualify for NEBs, or how the evidence establishes that he meets that test. There is no discussion of his pre- or post-accident activities. The applicant has not even identified any activities. He submits that he was unemployed prior to the accident, and was thinking about opening up a business, but was unable to continue. There is no evidence by way of medical records or by way of argument that the applicant is prevented from engaging in any, let alone substantially all of his activities that he was engaged in before the accident.
16The applicant has not met his burden to prove his entitlement to NEBs.
17I have determined that the applicant has not met his burden to prove that his accident-related injuries warrant removal from the MIG. The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that are not included in the MIG and above the funding limit.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are overdue, therefore no interest is payable.
ORDER
19The applicant sustained a minor injury as a result of the accident, as defined in section 3 of the Schedule. He is subject to the MIG and the $3,500.00 funding limit on treatment.
20The applicant is not entitled to the treatment and assessment plans or expenses in dispute because they propose goods and services that are not included in the MIG and above the funding limit.
21No interest is payable.
22The application is dismissed.
Released: September 21, 2023
Kate Grieves
Adjudicator