Licence Appeal Tribunal File Number: 21-008791/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:
John-Paul Udal
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Sam Moini
APPEARANCES:
For the Applicant: Alex Nikolaev, Counsel
For the Respondent: Michael Rattray, Counsel
Written Hearing: Heard by way of written submissions
OVERVIEW
1John-Paul Udal, the applicant, was involved in an automobile accident on April 15, 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 Company, 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 predominately minor according to s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $2,195.00 for physiotherapy services, proposed by We Care Rehab Clinic in a treatment plan submitted October 22, 2019 denied November 5, 2019?
iii. Is the applicant entitled to $1,912.15 for physiotherapy services, proposed by We Care Rehab Clinic in a treatment plan submitted October 22, 2019 and denied November 26, 2019?
iv. 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 and subject to treatment within the MIG.
4The applicant is not entitled to the treatment plans in dispute or interest.
ANALYSIS
Minor Injury Guideline (MIG)
5The applicant’s injuries are predominantly minor and treatable within the MIG.
6Section 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.”
7An 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.
8The applicant has made no submissions on removal from the MIG.
9The respondent submits that the applicant bears the onus of proving their injuries fall outside the MIG.
10The applicant has provided no evidence or basis for being removed from the MIG. Therefore, I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.
11The applicant is not entitled to the disputed treatment plans.
12The parties have agreed that the MIG limits of $3,500.00 have been exhausted. As I have found that the injuries of the applicant to be within the MIG, I do not find the applicant entitled to physiotherapy services is the amount of $2,195.00 and $1,912.15 respectively.
13However, the applicant raises the argument that the two treatment plans are payable because the respondent has failed to comply with the requirements set in s. 38(8) of the Schedule and as a result, anything incurred for the subject treatment plans is payable under s. 38(11) of the Schedule.
14I find that neither treatment plan is payable pursuant to s. 38(8) of the Schedule.
15The applicant submits that the denials state nothing about the applicant’s specific medical condition or on what basis the denials were being made. Therefore, the applicant could not make an informed decision whether to dispute the denial as they were never informed on why they were denied.
16The respondent submits that they provided medical reasons in the denial. The respondent submits that their denial letter dated November 5, 2019 stated, “We have not received sufficient compelling evidence to support that your injuries are not minor. We require medical information to confirm the pre-existing injury, that it was made worse and confirmation that recovery is not possible under the minor injury limit or with the goods provided by the minor injury guidelines OR we have not received compelling medical information to support that your injuries are not minor”. The respondent submits that the explanation provided to the applicant is clear and readily comprehensible. The denial dated November 5, 2019 makes explicit reference to the lack of medical documentation and outlines a request for documentation in support of the applicant’s position. The respondent also stated that medical reasons for a denial are not required when they do not exist and an insurer need not manufacture a medical reason.
17I agree with the respondent. Section 38(8) requires the respondent to provide the medical reasons for not paying the treatment plan. There is no requirement to describe injuries as suggested by the applicant. The denial letter, dated November 5, 2019, references that medical documents were still required to confirm a pre-existing condition, that it was made worse and that recovery is not possible under the MIG limits and not enough medical evidence was provided that the injuries were not minor. The respondent had asked for “general practitioners clinical notes and records from 2017- present”. Subsequently, the denial letter dated November 26, 2019 reiterated the need for additional medical documentation that was requested on the November 5, 2019 denial letter.
18I find that the denial letter provides medical reasons for the denial, and therefore, complies with s.38(8) the Schedule. Consequently, the disputed plans are not payable.
Interest
19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
20As no benefits are overdue, no interest is payable under s. 51.
ORDER
21For the reasons set out above, I find that:
i. The applicant’s injuries fall within the MIG;
ii. The applicant is not entitled the disputed treatment plans; and
iii. The applicant is not entitled to interest.
22The application is dismissed.
Released: April 25, 2024
Sam Moini
Adjudicator