Licence Appeal Tribunal File Number: 21-004609/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:
Mohammed Miah
Applicant
and
The Co-operators
Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Michael Pryce, Paralegal
For the Respondent: Julianne Brimfield, Counsel
HEARD: By written submissions
OVERVIEW
1Mohammed Miah, the applicant, was involved in an automobile accident on July 18, 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, 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:
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 Minor Injury Guideline limit?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 14, 2020 to February 13, 2022?
iii. Is the applicant entitled to $1,073.01 for an attendant care assessment, proposed by Scarborough Physio and Rehab Clinic in a treatment plan/OCF-18 submitted to the insurer on October 21, 2019 and denied on October 24, 2019?
iv. Is the applicant entitled to $3,578.00 for physiotherapy services, proposed by Scarborough Physio and Rehab Clinic in a treatment plan/OCF-18 submitted to the insurer on December 10, 2019 and denied on December 19, 2019?
v. Is the applicant entitled to $464.21 for physiotherapy services, proposed by Scarborough Physio and Rehab Clinic in a treatment plan/OCF-18 submitted to the insurer on September 30, 2019 and denied on October 8, 2019?
vi. Is the applicant entitled to $2,078.00 for physiotherapy services, proposed by Scarborough Physio and Rehab Clinic in a treatment plan/OCF-18 submitted to the insurer on January 30, 2020 and denied on February 13, 2020?
vii. Is the applicant entitled to $3,578.00 for physiotherapy services, proposed by Scarborough Physio and Rehab Clinic in a treatment plan/OCF-18 submitted to the insurer on November 7, 2019 and denied on November 21, 2019?
viii. Is the applicant entitled to $1,427.25 for the cost of examinations, proposed by Scarborough Physio and Rehab Clinic in a treatment plan/OCF-18 submitted to the insurer on August 16, 2019 and denied on August 26, 2019?
ix. Is the applicant entitled to $560.44 for assistive devices submitted to the insurer on October 23, 2019 and denied on November 14, 2019?
x. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xi. Is the applicant entitled to interest on any overdue payment of benefits?.
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
4He is not entitled to the treatment plans, nor interest.
5The respondent is not liable to pay an award.
ANALYSIS
Non-earner Benefit (NEB)
6The applicant is not entitled to an NEB.
7Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
8The applicant makes no submissions on the NEB. As such, I find that he is not entitled an NEB because he has provided no basis to establish his entitlement.
Minor Injury Guideline (MIG)
9The applicant’s injuries are predominantly minor and treatable within the MIG.
10Section 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.”
11An 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. 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.
12The applicant submits that “the clinical notes and records from the family doctor document pre-existing Medical (sic) issues in the past.” The applicant provides no further details or submissions on the MIG.
13The respondent submits that the applicant’s submissions are vague and do not point to any specific evidence that supports removal from the MIG.
14The applicant asserts that he has pre-existing medical issues. He does not identify what these pre-existing issues are. He does not make any specific, pin-point references in the evidence regarding pre-existing issues. The applicant is also silent on how these pre-existing issues preclude recovery if he is kept within the confines of the MIG.
15I find that the applicant The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule because he has not addressed any of the essential elements needed to justify removal from the MIG.
16As I have found the applicant’s injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary.
17Interest is not payable pursuant to s. 51 of the Schedule as there are no overdue amounts owing.
Award
18The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
19The respondent cannot be found liable to pay an award under s. 10 of Reg 664 as there is no evidence that any benefits were unreasonably withheld or delayed.
ORDER
20The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
21He is not entitled to the treatment plans, nor interest.
22The respondent is not liable to pay an award.
Released: January 15, 2024
Harry Adamidis
Adjudicator