Kinselle Meana v. Aviva General Insurance, 2023 CanLII 91449

Citation: Meana v. Aviva General Insurance, 2023 ONLAT 21-000420/AABS

Licence Appeal Tribunal File Number: 21-000420/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:

Kinselle Meana

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Matthew Frontini

APPEARANCES:

For the Applicant: Tanzeela P. Ansari, Counsel

For the Respondent: Christine McKenna, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kinselle Meana, the applicant, was involved in an automobile accident on September 16, 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, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant commenced a claim for accident benefits and was treated within the Minor Injury Guideline (“the MIG”) and discharged. The applicant then sought funding for medical benefits outside the MIG.

3The respondent denied these claims as it determined that all of his injuries fit the definition of a “minor injury”, as prescribed by s. 3(1) of the Schedule, and therefore, she fell within the MIG and because the applicant had failed to established that any of the treatment plans were reasonable and necessary.

The applicant’s position is that her injuries do not fit the definition of “minor injury” within the MIG and that the requested treatment and expenses are reasonable and necessary.

ISSUES

4The issue(s) in dispute are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the $3,500.00 limit set out in the Minor Injury Guideline?
2. Is the applicant entitled to $200.00 for chiropractic services, recommended by Mackenzie Medical Rehabilitation Centre in a treatment plan (OCF-18) submitted January 3, 2019?
3. Is the applicant entitled to $2,486.00 for In-Home Occupational Therapy Assessment, recommended by Access Rehab Inc in an OCF-18 dated January 10, 2019?
4. Is the applicant entitled to $1,977.05 for chiropractic services, recommended by Mackenzie Medical Rehabilitation Centre in an OCF-18 dated March 8, 2019?
5. Is the applicant entitled to $1,384.70 for chiropractic services, recommended by Mackenzie Medical Rehabilitation Centre in an OCF-18 dated June 5, 2019?
6. Is the applicant entitled to $2,033.00 for a Electrophysiological Brain Assessment, recommended by IScope Concussion and Pain Center in an OCF-18 dated November 6, 2019?
7. Is the applicant entitled to $2,460.00 for a Neurological Assessment, recommended by IScope Concussion and Pain Center in an OCF-18 dated November 6, 2019?
8. Is the applicant entitled to interest on any overdue payment of benefits?
9. Is the applicant entitled to an award under s. 10 of O. Reg. 664.

RESULT

5Based on the evidence before me, I find that the applicant sustained a minor injury and is subject to the MIG funding limit of $3,500.00. The applicant has also failed to establish that any of the denied OCF-18s are reasonable and necessary. The applicant is not entitled to the medical benefits in dispute.

6As the applicant is not entitled to any of the medical benefits in dispute, no interest is payable and the applicant is not entitled to an award under s. 10 of O. Reg 664.

ANALYSIS

The Minor Injury Guideline

7The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

8Where the applicant and insurer disagree on the applicability of the MIG, the applicant bears the burden of establishing that her injuries are not minor and, the related funding limit, should not apply.

9The applicant claims to suffer from psychological and physical injuries and a chronic pain disorder. The applicant submits these injuries are not included within the MIG. As a result, the applicant claims entitlement to medical benefits beyond the MIG funding limit.

The Applicant has failed to establish that the MIG Does Not Apply

10The applicant has failed to establish that her injuries are not “minor” and that the MIG does not apply. In respect of medical evidence, the applicant primary relies on the clinical notes and records of treatment providers and assessment facilities.

11The applicant submits that, as a result of injuries she sustained in the accident she suffers from headaches, concussion-symptoms, sleep disturbances and mood disturbances. However, this allegations are not supported by the evidence she presented to the Tribunal.

12As noted by the respondent, the applicant does not rely on any objective evidence from her family physician or other health practitioners. In the medical records filed by the applicant, the only mention of an accident-related injury is one note regarding an injury to her left hand.

13Although the applicant attended with her family doctor a number of times after the accident, no mention was made of the accident or accident-related injuries in his records. Indeed, the applicant did not rely on her family doctor’s clinical notes and records in support of her submissions.

14The applicant’s submissions that she is suffering from headaches, concussion-symptoms, sleep disturbances and mood disturbances are not supported by medical evidence. They are simply submissions – not evidence.

15The applicant has not presented evidence that there is a connection between the complaints set out in the medical documents she filed and the accident, and I do not accept her submission that “…there has been clear medical evidence all along that suggest her injuries fall outside the MIG."

16The applicant has failed to discharge her burden to establish that her injuries are not minor, or that they warrant removal from the MIG.

The Treatment Plans at Issue

17Based on the evidence before me, the applicant has not established that he suffered anything other than minor injuries. She is subject to the MIG funding limit of $3,500.00. As such, it is not necessary to determine whether the OCF-18s in dispute are reasonable and necessary.

18Although not necessary for my determination, I find that the applicant has also failed to establish that any of the OCF-18s are reasonable or necessary. The applicant has not provided evidence or argument regarding how each OCF-18 is reasonable and necessary as a result of injuries sustained in the accident. She has instead simply stated that they meet her needs and therefore these plans must be approved to treat the injuries “…which are listed in the medical documents”. As stated above, I have concluded that the evidence presented does not demonstrate that the applicant’s complaints are related to the accident and do not set out if or why the services described in the OCF-18s are reasonable and necessary.

Interest and Award under section 10 of Regulation 664

19Pursuant to section 10 of O. Reg. 664 the applicant may be entitled to an award if the respondent unreasonably withheld payment of a benefit. The applicant claims entitlement to an award although her submissions do not provide a basis for this entitlement. Instead, the applicant has cited the Schedule and one case but provided no submissions on how that respondents’ conduct warrants an award.

20The respondent submits the benefits were denied based on the medical evidence and within the timelines set out in the Schedule.

21I reviewed the evidence in its entirety found the applicant’s injuries fall within the MIG. Moreover, the applicant has failed to establish any grounds upon which an award could be ordered. As a result, the applicant is not entitled to the disputed benefits, interest thereon, or an award.

ORDER

22I 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. Given the applicant’s injuries are minor and the $3,500.00 MIG limit has been exhausted, a determination of whether the treatment plans are reasonable and necessary is not required;

iii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule; and

iv. The applicant is not entitled to an award under s. 10 of O. Reg 664.