Abebe v. Economical Insurance Company
Licence Appeal Tribunal File Number: 22-012539/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:
Amaria Abebe
Applicant
and
Economical Insurance Company
Respondent
DECISION
ADJUDICATOR: Kenneth Nixon
APPEARANCES:
For the Applicant: Natalia Poliakova, Paralegal
For the Respondent: Ainsley Shannon, Counsel
HEARD: By way of written submissions
OVERVIEW
1Ameria Abebe, the applicant, was involved in an automobile accident on May 5, 2021, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues in dispute are:
- 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 Minor Injury Guideline limit? Note: The parties agree the MIG limits have been exhausted.
- Is the applicant entitled to the following treatment plans/OCF-18 ("plan"), proposed by Premier Medical Centre Inc: (i) $199.50 ($1,297.00 less $1,097.50 approved) for physiotherapy services, in a plan dated August 11, 2021, and denied October 21, 2021; and (ii) $1,297.00 for physiotherapy services, in a plan dated November 1, 2021, submitted January 21, 2022, and denied July 29, 2022?
- Is the applicant entitled to $2,900.00 for a psychological assessment, proposed by Dr. Jeremy Frank and Associates in a plan dated November 12, 2021, submitted November 25, 2021, and denied December 10, 2021?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant's injuries meet the definition of "minor" injury under the Schedule. The applicant is therefore subject to treatment within the MIG limits.
4As the applicant continues to be within the MIG and the MIG limits have been exhausted, the applicant is not entitled to the treatment plans in dispute.
5As a result of the above, there are no overdue payments of benefits and accordingly no interest is payable by the respondent.
ANALYSIS
The Minor Injury Guideline ('MIG")
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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".
7An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or under s.18.(2) if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the confines of the MIG. In all cases, the burden of proof lies with the applicant.
8The burden is on the applicant to demonstrate, on a balance of probabilities that the injuries fall outside of the MIG. In this instance, the applicant submits that he should be removed from the MIG based on the diagnosis of Post Traumatic Stress Syndrome.
9Based on the evidence before me, I find that the applicant has not proven on a balance of probabilities that they suffer from Post Traumatic Stress Disorder (PTSD) or other psychological or physical impairments arising from the accident and, as a result their injuries fall within the MIG.
Does the applicant suffer from PTSD or other psychological impairments arising from the accident that would remove them from the MIG?
10The applicant submits that they should be removed from the MIG because of symptoms diagnosed as PTSD including headaches, anxiety, depression as a result of the accident.
11The applicant relies on:
(a) The records of Dr. Jeremy Frank from the Eglington Health Care Centre whose report indicates difficulty sleeping, nightmares and anxiety, loneliness irritability and anger and;
(b) The records of the Eglington Health Centre from April 8, 2022, where it was noted that the applicant has been seeing a psychiatrist for Workplace Safety and Insurance Board (WSIB) for work related injuries, which state the PTSD appeared to be related to the motor vehicle accident.
12The respondent relies upon:
(a) The report of family doctor (Dr. Vanniyasingam) from December 6, 2020, (six months prior to the MVA) whereas the applicant reported migraines and difficulty with sleeping; and
(b) The WSIB application pertaining to a work-related injury on July 12, 2021, where the applicant states they have not suffered any previous injuries; and
(c) Subsequent visits to Premier Medical Centre on July 21,