Licence Appeal Tribunal File Number: 21-005952/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:
Alexander McDowall
Applicant
and
Intact Insurance
Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Kameliya Stancheva, Paralegal
For the Respondent: Brittany Rizzo, Counsel
HEARD: By way of Written Submissions
OVERVIEW
1Alexander McDowall, the applicant, was involved in an automobile accident on May 24, 2019, 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, Intact Insurance, 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 treatment within the $3,500.00 limit and in the Minor Injury Guideline?
ii. Is the applicant entitled to $1,102.48 for chiropractic services, proposed by Brampton Civic Care Centre in a treatment plan dated August 9, 2019?
iii. Is the applicant entitled to $2,528.42 for chiropractic services, proposed by Brampton Civic Care Centre in a treatment plan dated September 20, 2019?
iv. Is the applicant entitled to $87.19 for the completion of an OCF-3 Disability certificate dated July 23, 2019?
v. Is the applicant entitled to $1,995.33 for a Psychological Assessment, proposed by Brampton Civic Care Centre in a treatment plan dated September 18, 2019?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the applicant entitled to costs?
RESULT
3This application is dismissed.
ANALYSIS
Minor Injury Guideline (MIG)
4The applicant has not established, on a balance of probabilities, that he should be removed from the MIG.
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if an insured person sustains impairments that are predominantly minor injuries.
6Section 3(1) of the Schedule 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. The applicant bears the burden of establishing, on a balance of probabilities, that his injuries are outside of the MIG.
8The applicant notes that his accident related injuries are listed in a Disability Certificate, dated June 11, 2019, completed by Dr. Roger Singh, chiropractor. These injuries include Whiplash associated disorder WAD-2 with complaint of neck pain, muscle strain, sprain and strain of cervical spine, sprain and strain of lumbar spine and shoulder girdle, malaise and fatigue, acute stress reaction, low back pain, tension-type headache, and headache.
9The applicant also notes that the Disability Certificate indicates that he suffers a complete inability to carry on a normal life and that he has difficulties with most activities of daily living, including self care and housekeeping.
10Dr. Singh further recommends that the applicant not return to work. As noted in the Disability Certificate, the applicant returned to work, despite his pain and discomfort, for financial reasons.
11The applicant lists the injuries and impairments described in the Disability Certificated but does not explain how this evidence supports removal from the MIG. The applicant cites jurisprudence and articulates the concepts in the caselaw, but does not explain how these cases apply to his circumstances.
12The respondent submits that applicant has not proven that his injuries are not predominantly minor and subject to the MIG.
13Taken at face value, the Disability Certificate, which is the only evidence referenced by the applicant, is not persuasive in regard to having the applicant removed from the MIG. The physical injuries listed in this form fall within the definition of a minor injury. Moreover, Dr. Singh anticipates the duration of the impairments caused by the injuries is “9-12 weeks.” This is also consistent with the premise that the applicant’s injuries are minor.
14The Disability Certificate identifies malaise, fatigue, and acute stress reaction as being accident related psychological injuries. Even so, merely listing these conditions on this form is insufficient evidence to justify a finding that the applicant has a psychological impairment caused by the accident and should be removed from the MIG.
15The Disability Certificate also recommends a psychological assessment. Little weight is given to this recommendation as mental health matters are not within Dr. Singh’s field of expertise.
16For these reasons, I find that the applicant has not established, on a balance of probabilities, that he should be removed from the MIG.
17The applicant is not entitled to the treatment plans, nor the invoice.
18The applicant bears the burden of demonstrating, on a balance of probabilities, that a benefit is reasonable and necessary as a result of the accident. To do so, he should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
19There are three treatment plans and an invoice in dispute. The applicant submits that he is entitled to these benefits. The applicant also cites jurisprudence in his submissions, but does not explain how these cases apply.
20I find that the applicant is not entitled to these treatment plans.
21The applicant submits that he is entitled to the treatment plans and invoice, but makes no further submissions specific to these benefits. The Tribunal cannot connect the dots and make the applicant’s case. Doing so inappropriately places the Tribunal in the role of his advocate. It is up to the applicant to make specific citations in the evidence and explain why it supports entitlement to a specific benefit. This was not done. Consequently, I find that the applicant has not established, on a balance of probabilities, that the treatment plans are reasonable and necessary.
Interest
22As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Costs
23Under Rule 19 of the Licence Appeal Tribunal’s (LAT) Common Rules of Practice and Procedure, the applicant may request costs if he believes that the respondent acted unreasonably, frivolously, vexatiously, or in bad faith.
24The applicant submits, in paragraph 15 of his submissions, that he is entitled to costs but provides no explanation to justify this request.
25The request for costs is dismissed.
Order
26This application is dismissed.
Released: March 15, 2024
Harry Adamidis
Adjudicator