Citation: Cowie v. TD Home and Auto Insurance Company, 2024 ONLAT 22-004376/AABS

Licence Appeal Tribunal File Number: 22-004376/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:

Adrian Cowie

Applicant

and

TD Home and Auto Insurance Company

Respondent

DECISION

VICE-CHAIR:

Julian DiBattista

APPEARANCES:

For the Applicant:

Yanira E Monterroza, Paralegal

For the Respondent:

Orest Kuchar, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Adrian Cowie, the applicant, was involved in an automobile accident on March 22, 2020, 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, TD Home and Auto 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 predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“MIG”) limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $1,977.05 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated September 17, 2020?

iii. Is the applicant entitled to $3,679.43 for chiropractic services and other assistive devices, proposed by Jennifer Violante in a plan dated May 11, 2020?

iv. Is the applicant entitled to $2,635.40 for services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan dated October 29, 2020?

v. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Marigold Medical Assessment, in a plan dated June 22, 2021?

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

RESULT

3The applicant has not proven injuries which fall outside the MIG.

4As MIG limits have been exhausted the applicant is not entitled to any disputed treatment plans or interest.

ANALYSIS

The applicant has not proven a pre-existing condition that warrants removal from the MIG

5I find that the applicant has not met their onus to prove a pre-existing condition which warrants removal from 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.

8The applicant submits that their pre-existing knee injury warrants removal from the MIG. They have highlighted considerable medical evidence, imaging, and surgical reports to confirm that the applicant suffered from a pre-existing knee injury. They highlight a post-accident x-ray of March 22, 2021 as compelling medical evidence that the pre-existing condition precludes recovery within the MIG. I do not find this evidence compelling.

9The respondent submits that the applicant has not provided compelling medical evidence demonstrating the pre-existing condition prevents him from achieving maximal medical recovery within the MIG.

10After reviewing the medical evidence, I accept as fact that the applicant suffered from a pre-existing knee condition. There is an operative report dated January 30, 2018 documenting surgery of the right knee. There is also an MRI of the right knee dated July 7, 2018 which notes a tearing of the ligamentous mucosum and focal severe cartilage fissuring.

11However, there are two parts to this legal test. The second part requires compelling medical evidence demonstrating that the condition precludes recovery within the confines of the MIG. For this, the applicant points to an x-ray of March 22, 2021 written by Dr. R Duggal, radiologist.

12This report summarizes findings from an x-ray and ultrasound of the right knee and recommends further characterization with an MRI. This report does not mention a condition which pre-existed prior to the accident, nor does it mention how the non-referenced pre-existing condition would affect recovery within the confines of the MIG.

13As this is the totality of evidence provided to me by the applicant in support of the second part of the legal test described above, I agree with the respondent’s position.

14I would like to note that I have reviewed the applicant’s reply submissions, however, the applicant does not address the fact that there is no compelling medical evidence that maximal medical recovery cannot be reached if kept within the confines of the MIG. The act of listing injuries as diagnosed by practitioners based on imaging and referrals is not enough to meet this test. There has been no linkage made between the injuries experienced by the applicant and maximal medical recovery within the confines of the MIG.

15For these reasons I find that the applicant has not met their onus of proving a pre-existing medical condition which precludes maximal medical recovery if the applicant is subject to the MIG limits.

The applicant is not entitled to any of the disputed treatment plans

16As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.

Interest

17As there are no benefits owing, no interest is payable.

ORDER

18For the reasons outlined above, I find and order that:

i. The applicant sustained predominantly minor injuries as defined under the Schedule. Accordingly, it is not necessary for me to determine whether or not the treatment plans are reasonable and necessary because the maximum amount of $3,500.00 for medical and rehabilitation benefits under the MIG has been exhausted;

ii. No interest is payable; and

iii. This application is dismissed.