Tokatli v. The Co-operators General Insurance Company, 2024 CanLII 147

Citation: Tokatli v. The Co-operators General Insurance Company, 2024 ONLAT 22-000705/AABS

Licence Appeal Tribunal File Number: 22-000705/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:

Hasan Tokatli

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Neha Kohli, Paralegal

For the Respondent: Emily Schatzker, Counsel Amirali Golpira, Counsel

HEARD: By Written Submissions

OVERVIEW

1Hasan Tokatli (the “applicant”) was involved in an automobile accident on August 11, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2020 (the “Schedule”). The applicant was denied benefits by The Co-operators General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied treatment outside the MIG. In submissions, the respondent indicated that it approved treatment at the Midland Wellness Centre up to the MIG limits on October 10, 2019, and the applicant did not oppose the respondent’s assertion. As a result, I accept that the MIG limit is exhausted. The applicant must be found to warrant treatment outside the MIG to be entitled to the disputed treatment plans, and I note that the applicability of the MIG was not identified as an issue in dispute in this application.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $2,564.96 for physiotherapy services, proposed by Midland Wellness Centre in a treatment plan/OCF-18 (“treatment plan”) dated October 25, 2019?

ii. Is the applicant entitled to $2,269.34 for physiotherapy services, proposed by Midland Wellness Centre in a treatment plan dated January 5, 2020?

iii. Is the applicant entitled to $1,995.33 for a psychological assessment, proposed by Midland Wellness Centre in a treatment plan dated February 27, 2020?

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

RESULT

4For the reasons that follow, I find that:

i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. As a result, he remains within the MIG and its $3,500.00 limit on treatment.

ii. As the MIG limit of $3,500.00 has been exhausted, the applicant is not entitled to the treatment plans in dispute.

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.

PROCEDURAL ISSUE

5The applicant was involved in another automobile accident on February 13, 2020 and sought benefits pursuant to the Schedule. The applicant was denied benefits by the respondent and applied to the Tribunal for resolution of the dispute. The application bears Tribunal File Number 22-003371/AABS.

6Tribunal File Numbers 22-000705/AABS and 22-003371/AABS have not been ordered to be heard together. Despite this, in his written hearing submissions, the applicant combined the issues in dispute identified in Tribunal File Numbers 22-000705/AABS and 22-003371/AABS. The issues in dispute in 22-003371/AABS include the applicability of the MIG, five treatment plans, and interest.

7The respondent opposes the applicant’s attempt to combine the issues in dispute identified in the two separate applications. Further, the respondent requests that paragraphs 2, 4, 9, and 12-16 of the applicant’s written hearing submissions be struck as these paragraphs relate to issues outlined in 22-003371/AABS.

8The applicant did not submit reply submissions, despite having the opportunity to do so, and as such, he did not respond to the respondent’s request to strike portions of his written hearing submissions.

9I find that there is no basis for me to consider the issues in dispute raised in 22-003371/AABS as there is no evidence that 22-000705/AABS and 22-003371/AABS have been ordered to be heard together. Since paragraphs 12-16 of the applicant’s written hearing submissions deal solely with issues raised in 22-003371/AABS, they will not be considered.

10However, I am prepared to consider paragraphs 2, 4, and 9 of the applicant’s written hearing submissions because they are relevant to the issues in dispute in 22-000705/AABS. While I agree with the respondent that the applicability of the MIG was not identified as an issue in dispute in 22-000705/AABS, given that the respondent denied the applicant’s entitlement to the disputed treatment plans on the basis that the MIG applied to the applicant’s injuries, the applicant’s submissions are relevant. Further, the respondent had the opportunity to respond to the applicant’s submissions regarding the applicability of the MIG.

11Accordingly, I will consider the applicability of the MIG in 22-000705/AABS, but I will not consider the issues in dispute relating to 22-003371/AABS.

ANALYSIS

The Minor Injury Guideline (“MIG”)

12Section 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 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.”

13An insured person 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 from their minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

14The applicant submits that he should be removed from the MIG because he suffers from a psychological impairment and chronic pain as a result of the accident.

15In response, the respondent submits that the medical evidence supports that the applicant sustained minor sprain and strain injuries as a result of the accident and that he can be treated within the MIG.

The applicant did not sustain injuries that warrant removal from the MIG

16I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.

17I find that the applicant’s medical evidence does not demonstrate that he suffers from a psychological impairment as a result of the accident. Although the applicant submits that he was diagnosed with psychological conditions, he has not directed the Tribunal to any medical record to support a psychological diagnosis. Further, there is no evidence that the applicant reported experiencing psychological complaints and impairments following the accident.

18I find that the applicant has not presented medical evidence to support that he suffers from chronic pain and functional impairments as result of the accident. According to the Toronto Paramedics Ambulance Call Report and the Scarborough General Hospital records, both dated August 11, 2019, the applicant reported feeling dizzy, and he was assessed for vertigo. No other injuries were identified. The emergency physician’s diagnosis is not legible; however, the applicant was discharged home on the same day, no diagnostic testing was carried out, and the applicant was not given a prescription for pain medication. While it was recommended that the applicant return for a follow up after two days if he continued to experience dizziness, there is no evidence that the applicant sought further treatment.

19Moreover, according to a clinical note dated October 31, 2019, the applicant reported to his family physician, Dr. Jo-Ann Alexander, that he had been involved in two automobile accidents in August 2019, and that he attended the hospital with complaints of pain to his neck, shoulder, and back. He also advised Dr. Alexander that his injuries had not prevented him from returning to work as a construction worker. Dr. Alexander diagnosed the applicant with musculoskeletal pain, and she recommended that the applicant do simple stretches and take over-the-counter pain medication. There is no evidence that the applicant sought further treatment for these injuries before being involved in a third automobile accident on February 13, 2020.

20Additionally, I find that the evidence indicates that the applicant’s musculoskeletal injuries have fully resolved. The applicant underwent an insurer examination with Dr. Anna Czok, physiatrist, on June 29, 2020. In her report, Dr. Czok diagnosed the applicant with resolved cervical and lumbar sprain and strain. The physical examination did not demonstrate objective accident-related impairments, and Dr. Czok concluded that the applicant sustained predominantly minor injuries as a result of the accident. Further, there is no evidence that the applicant suffers from a pre-existing medical condition that would prevent him from achieving maximal recovery from his minor injury.

21In light of the evidence, I find that the applicant has failed to meet his evidentiary burden to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.

The Treatment Plans

22Having found that the applicant remains within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that he is not entitled to the treatment plans in dispute.

Interest

23Given that there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

24For the reasons outlined above, I find that:

i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. As a result, he remains within the MIG and its $3,500.00 limit on treatment.

ii. As the MIG limit of $3,500.00 has been exhausted, the applicant is not entitled to the treatment plans in dispute.

iii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule, as there are no overdue benefits.

25The application is dismissed.