Jason Ramsaroop v. Unifund, 2024 CanLII 54050

Citation: Ramsaroop v. Unifund, 2024 ONLAT 22-003417/AABS

Licence Appeal Tribunal File Number: 22-003417/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:

Jason Ramsaroop

Applicant

and

Unifund

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Kateryna Vlada, Counsel

For the Respondent: Gurpreet Singh, Counsel

HEARD: In Writing

March 9, 2024

OVERVIEW

1Jason Ramsaroop, the applicant, was involved in an automobile accident on January 25, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are to be decided:

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 the amount of $4748.58 for physiotherapy services, proposed by Physiocare and Wellness Clinic in a treatment plan dated March 11, 2021?

iii. Is the applicant entitled to the amount of $2000.00 for a chronic pain assessment, proposed by Physiocare and Wellness Clinic in a treatment plan dated April 15, 2021?

iv. Is the applicant entitled to the amount of $3684.96 for physiotherapy services, proposed by Physiocare and Wellness Clinic in a treatment plan dated September 2, 2021?

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

RESULT

3I find that:

i. The applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG.

ii. The applicant is not entitled to the treatment plans in dispute; and

iii. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits that his pre-existing injuries warrant removal from the MIG.

Pre-existing injuries

8Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

9The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

10The applicant submits his pre-existing neck and back pain which were the result of previous accidents on June 22, 2018 and September 16, 2018 warrants removal from the MIG. It is the applicant’s position that his pre-existing pain poses a barrier to his recovery and as such he should be removed from the MIG.

11The applicant relies on the clinical notes and records (“CNRs”) of Dr. Abeer El Morsy, family physician. The CNRs of Dr. El Morsy, dated June 23, 2018, reveal the applicant complained of neck and right shoulder pain, Dr. El Morsy diagnosed the applicant with strains and sprains. Dr. El Morsy referred the applicant for an x-ray which revealed minimal narrowing of the left C3-4 foramen due to facet hypertrophy. The CNRs dated July 19, 2018, provided that the applicant attended with further complaints of neck and back pain. Dr. El Morsy diagnosed the applicant with strains and sprains and recommended stretching and continued physiotherapy.

12The respondent also relies on the CNRs of Dr. Abeer El Morsy. The respondent submits that in the CNRs there is no reference to any pre-existing condition past July 19, 2018, more than a year prior to the subject accident. Furthermore, there is no reference to the subject motor vehicle accident in the CNRs. The respondent refers to the Insurer Examination of Dr. Seyed Hosseini, physiatrist, dated November 11, 2021. Dr. Hosseini concluded that the applicant sustained minor soft tissue injuries, and that the applicant did not present any pre-existing conditions that would require treatment outside of the MIG.

13I am persuaded by the medical evidence of Dr. El Morsy who opined the applicant sustained soft tissue strain and sprains and made no reference in the CNRs to a pre-existing condition. Furthermore, I am persuaded by the medical evidence of Dr. Hosseini, who opined the applicant did not present any pre-existing condition. As a result, I find that the applicant did not provide persuasive evidence that he suffers from a documented pre-existing condition that would prevent him from achieving maximal recovery from his injuries by being subject to the MIG.

14The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

INTEREST

15There are no benefits payable, therefore no interest is owing.

ORDER

16The application is dismissed as I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The treatment plans in dispute are not payable; and

iii. The applicant is not entitled to interest.