Licence Appeal Tribunal File Number: 21-008484/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:
Anthony Khatchadourain
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sofia Ahmad
APPEARANCES:
For the Applicant:
Camille Narine-Ramrattan, Paralegal
For the Respondent:
Julianne Brimfield, Counsel
HEARD:
By way of written submission
OVERVIEW
1Anthony Khatchadourain, the applicant, was involved in an automobile accident on May 8, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was approved for physical therapy within the $3,500.00 MIG limits. As of May 21, 2021, the applicant had received therapy and received in payment for the therapy of $3,362.52.
3The applicant sought benefits in excess of the $3,500.00 MIG limits and was denied further benefits by the respondent, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
4The 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 ($3,362.00 paid) Minor Injury Guideline limit?
ii. Is the applicant entitled to $2,456.20 for physiotherapy services, proposed by Alexmuir Wellness Centre in a treatment plan dated October 10, 2020?
iii. Is the applicant entitled to $3,162.40 for physiotherapy services, proposed by Alexmuir Wellness Centre in a treatment plan dated September 17, 2020?
iv. Is the applicant entitled to $3,001.92 for physiotherapy services, proposed by Alexmuir Wellness Centre in a treatment plan dated August 25, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline.
ii. The applicant is not entitled to a medical benefit of $2,456.20 for physiotherapy services.
iii. The applicant is not entitled to a medical benefit of $3,162.40 for physiotherapy services.
iv. The applicant is not entitled to a medical benefit of $3,001.92 for physiotherapy services.
v. As there are no outstanding benefits, the applicant is not entitled to interest.
6The application is dismissed.
ANALYSIS
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?
7Section 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.
8An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1). The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.
9In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if 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.
10The applicant bears the onus of establishing, on a balance of probabilities, his entitlement to coverage beyond the $3,500.00 cap for minor injuries.
11I do not agree with the applicant’s submission. I have not been directed to any evidence in support of this position and I find the applicant should remain within the MIG.
Evidence of the Applicant
12The applicant consulted with his family physician, Dr. Ibrahim Hany, on May 20, 2020. He reported that he was experiencing pain in his neck, shoulders and lower back. The applicant was diagnosed with soft tissue injuries because of this accident.
13The applicant underwent an MRI of his spine post accident and the overall diagnostic impression was that any findings were the result of degenerative changes. Nothing