Licence Appeal Tribunal File Number: 22-002478/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:
Julio Mendoza
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Julio Mendoza, Applicant
Justin Mariani, Paralegal
For the Respondent:
Colleen Mackeigan, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Julio F. Mendoza (the “applicant”) was involved in an automobile accident on March 30, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Unifund Assurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied treatment outside the MIG. In submissions, the respondent indicated that the MIG limit is exhausted, and the applicant did not oppose the respondent’s assertion. As a result, the applicant must be found to warrant treatment outside the MIG to be entitled to the disputed treatment plans.
ISSUES
3The issues in dispute are:
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 MIG limit?
Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from February 13, 2020 to date and ongoing?
Is the applicant entitled to the following chiropractic treatments proposed by Mackenzie Medical Rehabilitation Centre:
a. $3,696.50 proposed in a treatment plan dated January 6, 2024;
b. $2,569.40 proposed in a treatment plan dated August 2, 2020;
c. $1,384.70 proposed in a treatment plan dated September 16, 2019;
d. $2,635.40 proposed in a treatment plan dated October 2, 2020; and
e. $2,569.40 proposed in a treatment plan dated October 24, 2020?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons that follow, I find that:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
The applicant is not entitled to IRB.
The applicant is not entitled to the disputed treatment plans.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
PROCEDURAL ISSUES
The applicant’s written hearing submissions exceed the page limit ordered by the Tribunal
5The applicant failed to comply with the page limit set out in the Case Conference Report and Order (“CCRO”) dated January 26, 2023 which set the page limit for written hearing submissions at 15 pages.
6The applicant acknowledges that the page count of his written hearing submissions is 25 pages. He explains that there are 3 pages for headings, issues in dispute, and relief sought, and 7 pages for evidence and case law embedded within the written submissions.
7The respondent did not provide a position on the applicant exceeding the page limit for his written hearing submissions.
8The CCRO explicitly states that the hearing adjudicator may not consider submissions which exceed the stipulated page limits. Given the applicant’s breach of the Tribunal’s order, it falls within my discretion to determine whether to allow the applicant’s written submissions that exceed the page limit.
9In the present case, I find that the applicant has exceeded the page limit in a significant amount. Parties should always strive to adhere to the Tribunal’s orders, and breaches should not become common practice.
10Nevertheless, in the circumstances, I am prepared to consider the applicant’s written submissions that exceed the page limit. The respondent did not provide any submissions as to any prejudice it sustained as a result of the applicant exceeding the page limit. When considering procedural fairness and any potential prejudice to the parties, I find that the applicant would be unfairly prejudiced if portions of his submissions were otherwise excluded in this matter. As a result, I will consider the 10 additional pages.
Request for the Tribunal to draw an adverse inference
The respondent failed to produce various records
11The applicant requests that the Tribunal draw an adverse inference against the respondent for failing to deliver the authorizations for access to the records of its various insurer examination assessors.
12The respondent submits that pursuant to the CCRO, the applicant was to provide an authorization to the respondent for the release of its assessors’ files, and the applicant never provided such authorization.
13On reply, the applicant did not address his failure to provide an authorization for the production of the respondent’s assessors’ files, despite having the opportunity to do so.
14I am not persuaded by the applicant’s argument that the Tribunal should drawn an adverse inference in the circumstances. Based on the respondent’s uncontested submissions, the respondent’s assessor’s files were not produced because the applicant failed to provide an authorization for their release.
The applicant failed to produce various records
15The respondent requests that the Tribunal draw an adverse inference against the applicant for failing to produce a prescription summary, the clinical notes and records (“CNRs”) of Mackenzie Medical, and self-employment business records as ordered in the CCRO.
16In response, the applicant does not address his failure to produce various records as ordered in the CCRO, despite having an opportunity to do so.
17I grant the respondent’s request that I draw an adverse inference against the applicant for failing to provide relevant records as ordered by the Tribunal. The Tribunal has the discretion to draw an adverse inference where, in the absence of a reasonable explanation, a party fails to produce evidence that is within its control, and such evidence is material to the dispute. In the present case, the applicant did not comply with the Tribunal’s order as he failed to produce a prescription summary, the CNRs of Mackenzie Medical, and self-employment business records, and the applicant has not provided an explanation as to why he failed to comply with the Tribunal’s order.
ANALYSIS
Minor Injury Guideline
18Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”
19An insured person 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 from their minor injury 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.
20The applicant submits that he sustained the following injuries as a result of the accident: radiculopathy; injury of muscles and tendons of the rotator cuff of shoulder; dislocation, sprain and strain of joints and ligaments at neck level; sprain and strain of thoracic spine; sprain and strain of the lumbar spine; sprain and strain of sacroiliac joint; sprain and strain of elbow; tension-type headache; other sleep disorder; other anxiety disorder; and nervousness. The applicant also states that he was diagnosed with chronic back pain following the accident.
21The applicant submits that his accident-related physical injuries should be treated beyond the MIG limit. The applicant also submits that he suffers from a psychological impairment as a result of the accident. The applicant relies on the CNRs of New Jane Medical Centre, Disability Certificates (OCF-3) dated April 8, 2019, June 3, 2019, and October 1, 2020, and various treatment plans.
22The respondent submits that the applicant failed to establish that his accident-related injuries fall outside the MIG. The applicant has not advanced an argument that he suffers from a pre-existing condition that would prevent him from achieving maximal recovery if treated under the MIG. The applicant has not relied on any s. 25 reports. The medical evidence supports that the applicant sustained soft tissue injuries as a result of the accident. There is no objective evidence that indicate that the applicant suffers from a psychological impairment as a result of the accident.
23The respondent relies on various insurer examination reports including physiatry assessment reports dated September 24, 2019, October 2, 2019, and January 28, 2020, all completed by Dr. Alfonse Marchie, physiatry, psychological assessment reports dated September 24, 2019, October 2, 2019, and January 28, 2020 all completed by Dr. Douglas Saunders, psychologist, and functional abilities evaluation reports dated September 24, 2019 and January 28, 2020, both completed by Alexys Kyle Cruz, kinesiologist.
The applicant did not sustain injuries that warrant removal from the MIG
24I find that the applicant failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and is subject to its $3,500.00 limit on treatment.
Physical Impairments
25I find that there is insufficient evidence to support that the applicant sustained physical injuries that warrant his removal from the MIG. The applicant claims that immediately following the accident, he did not seek medical attention, rather, he went home. The applicant reported that he attended Humber River Hospital emergency department later that day due to left arm/elbow pain, low back pain, and chest pain and that diagnostic imaging was unremarkable. The applicant claims that he was given pain medication and advised to follow up with his family physician. However, the applicant did not include the CNRs of Humber River Hospital in the evidentiary record.
26The applicant consulted his family physician, Dr. Jalal Alled on April 1, 2019. Dr. Alled’s handwritten clinical note is difficult to read, but I understand that the applicant complained of experiencing low back pain, left shoulder pain, and left elbow pain following the accident. Dr. Alled diagnosed the applicant with multiple body contusions due to the accident and prescribed naproxen. He also ordered diagnostic imaging. X-rays of the left clavicle, ac joint, shoulder, and left elbow were unremarkable. X-rays of the lumbar spine, sacrum, and coccyx revealed severe degenerative disc disease at L5-S1 associated with marginal osteophytes and degenerative arthropathy of the facet joints was noted at the same level. Dr. Hana Elmedhdi Hejjaji, radiologist, found that the applicant suffered from lower lumbar spondylosis.
27I am not persuaded by the applicant’s submissions and evidence that Dr. Alled diagnosed him with chronic back pain as a result of the accident. While Dr. Alled’s handwritten notes are difficult to read, the diagnosis sections of his notes are easier to read, and there are no indications in the diagnosis sections to support that Dr. Alled diagnosed the applicant with chronic back pain as a result of the accident. Further, the applicant consulted Dr. Alled on several occasions following the April 1, 2019 consultation, and he only complained of back pain on May 8, 2019, May 17, 2019, and August 24, 2020.
28Additionally, while the applicant relies on the injuries identified in various OCF-3s and treatment plans completed by Dr. Mike Stea, Dr. Patricia Porco, Dr. Sai Lam Rudi Chan, Dr. Nilav Bhowmik, and Dr. Khashayar Khoshmashrab, all chiropractors, I assign limited weight on these OCF-3s and treatment plans. The applicant has not included in the evidentiary records the CNRs of any of these chiropractors, including the CNRs of Active Rehabilitation and the CNRs of Mackenzie Medical Rehabilitation Centre.
29Finally, although the applicant comments on Dr. Marchie’s reports, these reports do not support a finding that the applicant should be treated outside the MIG. Indeed, in a physiatry report dated October 2, 2019, Dr. Marchie opined that from a musculoskeletal perspective that the applicant sustained soft tissue injuries to his lumbosacral region and SI joint areas as a direct result of the accident and concluded that the applicant sustained predominantly soft tissue injuries consistent with the MIG.
30Considering the above, the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
Psychological Impairment
31I find that there is insufficient evidence to support that the applicant sustained a psychological impairment that warrants his removal from the MIG. Although the OCF-3s and treatment plans indicate that the applicant suffers from mixed anxiety and depressive disorder, other anxiety disorder, other sleep disorder, and nervousness as a result of the accident, I assigned limited weight to these diagnoses. As indicated above, the applicant has not included in the evidentiary records the CNRs of the chiropractors who prepared these OCF-3s and treatment plans. Further, the diagnosis of a psychological impairment falls outside the scope of practice of chiropractors.
32Moreover, there is no evidence that the applicant was referred for psychological treatment. There are no contemporaneous records of any psychological complaints, and there is no indication that the applicant reported experiencing psychological symptoms to Dr. Alled. Also, there is no evidence that the applicant took any prescription medication to address any psychological complaints, and I note that the applicant’s prescription summary was not included in the evidentiary record.
33I find on the evidence that the applicant’s psychological symptoms are sequalae of his minor injuries and they do not meet the threshold to warrant clinical intervention and removal from the MIG. Although the applicant comments on Dr. Saunders’s reports, these reports do not support a finding that the applicant should be treated outside the MIG. Further, as noted in a psychology report dated October 2, 2019, the applicant complained, among other things, of the following: difficulty falling asleep due to pain and discomfort; nightmares, worry, and anxiety; loss of weight since the accident; and anxiety as a passenger in a vehicle, as a pedestrian, and when using public transportation. Dr. Saunders administered various psychometric tests and noted that the applicant’s test results are consistent with an individual who is experiencing, at most, mild elevations in psychological symptoms that do not meet clinical criteria for impairment. Dr. Saunders concluded that there was no evidence of a psychological impairment.
34Accordingly, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
Income Replacement Benefit (“IRB”)
35To receive payment for pre-104-week IRB under s. 5(1), the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. He must identify essential tasks of his employment, which tasks he is unable to perform, and to what extend he is unable to perform them.
36The applicant bears the burden of proving, on a balance of probabilities, that he meets the test.
37In terms of the applicant’s education, his highest education level is college, and he studied Travel and Tourism in Cuba.
38In terms of the applicant’s occupational history, the applicant worked in the construction industry for over 15 years, and he has been self employed since 2015.
39At the time of the accident, the applicant was self-employed as the owner and operator of Budget Renovations, and he performed residential and commercial renovations. His duties included: tiling, flooring, dry walling, plastering, painting, landscaping, interlocking, plumbing, water proofing, and lifting 50-60 lbs. He worked 60-70 hours per week.
40Following the accident, the applicant took time off work. His return-to-work date is unknown, but based on his income tax returns, he earned $5,000.00 in business income in 2020, $8,225.00 in business income in 2021, and $8,000.00 in business income in 2022. He also received the Canada Emergency Response Benefit (CERB) in 2020 in the amount of $14,000.00. The applicant notes that 70% of his post-accident income can be deducted from IRB owing, and that the $14,000.00 he received for CERB is not deductible.
41The applicant submits that the respondent’s denial of entitlement to IRB did not satisfy the requirements under the Schedule. He states that merely citing the legal test does not provide any rationale for the denial and that the respondent failed to provide sufficient details about the applicant’s injuries or conditions that formed the basis of the denial. He relies on T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (“T.F.”).
42The applicant argues that the respondent cannot rely on a non-compliant denial to start the limitation clock, and as such, IRB is payable on the basis of the deficient notice. The applicant relies on 18-004441 v. Certas Home and Auto Insurance, 2019 CanLII 72198.
43The applicant further submits that he suffers from a substantial inability to perform the essential tasks of his employment at the time of the accident and that he is unable to return to work on modified hours and duties. He relies on various OCF-3s. However, the applicant has not made any submissions or tendered any evidence to support that he suffers from a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training, or experience.
44The respondent submits that its denial letter dated February 6, 2020 contained sufficient medical reasons to deny the applicant’s continued entitlement to IRB and that it complied with the Schedule.
45The respondent further submits that there is no evidence that the applicant has been unable to work as a result of the accident since it terminated his entitlement to IRB. Further, based on the reports of Dr. Marchie, Dr. Saunders, and Mr. Cruz, the applicant no longer meets the test for IRB. Also, while the applicant alleges that he has been unable to return to work, the respondent notes that the applicant has declared post-accident income.
46Of note, the parties agree that the weekly rate for IRB is $282.70 per week as opposed to $400.00 per week, and they both rely on the Williams and Partners Forensic Accountants Inc. accounting report dated March 9, 2020.
The applicant is not entitled to IRB on the basis of a deficient notice
47I find that the applicant failed to demonstrate that the respondent’s notice of termination of entitlement to IRB was non-compliant, and as such, he is not entitled to IRB on the basis of a deficient notice.
48Pursuant to s. 37(4) of the Schedule, if an insurer determines that an insured person is no longer entitled to receive IRB on any one or more grounds set out in s. 37(2), the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination.
49Section 37(2)(c) of the Schedule provides that an insurer can discontinue IRB when the insurer has received the report of the examination under s. 44, if the insurer required an examination under that section, and has determined that the insured person is not entitled to the benefit.
50Further, per s. 37(6) of the Schedule, within 10 business days after receiving the report of an examination under s. 44, the insurer shall provide the insured person with a notice of determination setting out: the IRB it agrees to pay; the IRB it refuses to pay; the medical and any other reasons for the insurer’s decision; and if the insurer determines that the insured person is not entitled to IRB, the date that payment of IRB will be stopped.
51As for the “medical and any other reasons” that insurers must provide under the Schedule, at paragraph 19 of T.F., the Tribunal reiterated the comments in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (“M.B.) and indicated as follows:
In my view, an insurer satisfies its obligation to provide its “medial and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
52I find that the respondent’s notice complied with the Schedule. In its notice letter dated February 6, 2020, the respondent enclosed copies of Dr. Marchie’s physiatry report, Dr. Saunders’ psychology report, and Mr. Cruz’s functional abilities evaluation report, all dated January 28, 2020. The respondent advised that based on these reports, the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment, and as such, IRB will be terminated effective February 13, 2020.
53I further find that the respondent’s notice provided medical reasons as the enclosed reports included specific details about the applicant’s condition forming the basis of the respondent’s decision. A review of these reports allows the applicant to make an informed decision to either accept or dispute the respondent’s decision. The medical and other reasons contained in the notice are consistent with the Schedule and M.B.
54Accordingly, the applicant has failed to establish that IRB is payable on the basis of a deficient notice.
The applicant is not entitled to IRB for the period of February 13, 2020 to date and ongoing at the rate of $400.00 per week
55I find that the applicant has not proven, on a balance of probabilities, that he is entitled to IRB for the period of February 13, 2020 to date and ongoing at the rate of $400.00 per week. As noted above, the parties agreed that the weekly rate, if payable, is $282.70 less 70% of the applicant’s post-accident employment income.
56I am not persuaded by the applicant’s medical evidence and submissions that he satisfies the criteria to receive payment for IRB under s. 5(1) of the Schedule. Although Dr. Chan noted in the OCF-3 dated October 1, 2020 that the applicant was substantially unable to perform the essential tasks of his employment and that he could not return to work on modified hours and duties, for the following reasons, I assign limited weight to this OCF-3.
57Dr. Chan indicated in the OCF-3 that the applicant requires significantly more time to complete tasks due to aggravation of symptoms with his job. Specifically, due to the fees that the applicant charges for his services, he is unable to hire help, and as such, he experiences aggravation of symptoms at work. However, the OCF-3 does not support that the applicant continued to suffer from a substantial inability to perform the essential tasks of his employment following the respondent’s termination of IRB.
58I further accept the respondent’s evidence that the applicant did not continue to suffer from a substantial inability to perform the essential tasks of that employment.
59From a functional perspective, Mr. Cruz indicated in his report dated January 28, 2020 that the applicant’s functional abilities evaluation appeared to be a valid representation of the applicant’s current physical abilities. He concluded that based on the results of the lifting and carrying tests, the applicant demonstrated the ability to perform work activities in the light to medium strength categories meaning that the applicant can handle loads (such as pulling, pushing, lifting, and/or moving objects) of 5 kg (11 lbs) to 20 kg (44 lbs).
60From a musculoskeletal perspective, Dr. Marchie indicated in his report dated January 28, 2022 that the applicant sustained soft tissue injuries to his lower back as a result of the accident. He noted that the applicant reported being able to perform his duties but that he required breaks. However, given that the applicant is self-employed, Dr. Marchie noted that the applicant had the autonomy to take breaks as needed and to lighten his load when carrying heavy materials. As such, Dr. Marchie concluded that the applicant did not suffer from a substantial inability to perform the essential tasks of his employment.
61From a psychological perspective, Dr. Saunders indicated in his report dated January 28, 2022 that the applicant did not sustain a psychological impairment as a result of the accident. Although the test results note a mild elevation in symptoms, these symptoms do not meet the clinical criteria for a psychological impairment. As such, Dr. Saunders concluded that the applicant did not suffer from a substantial inability to perform the essential tasks of his employment.
62Based on the evidence as a whole, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that he is entitled to IRB at the rate of $400.00 per week for the period of March 27, 2020 to date and ongoing. As such, no IRB is payable.
63When an insurer denies a treatment plan, s. 38(8) of the Schedule requires that the insurer reply to a treatment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decisions.
64If the insurer believes that the MIG applies to the insured person’s impairment, s. 38(9) of the Schedule provides that the notice under s. 38(8) must so advise the insured person.
65Section 38(11) provides the consequences of an insurer’s failure to comply with ss. 38(8) and 38(9) of the Schedule, which includes the insurer being prohibited from taking the position that the insured person has an impairment to which the MIG applies and the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.
66The applicant submits that the respondent is required to pay for the disputed treatment plans pursuant to s. 38(11) of the Schedule. The applicant states that the respondent did not provide sufficient medical and other reasons as required by s. 38(8) of the Schedule in its denial letters. Specifically, the applicant submits that the denial letters do not specify the applicant’s actual injuries, the rational for the denial is boilerplate, relying largely upon citing the MIG without specific reference to the applicant’s case, and include a request for compelling medical evidence that is subjective and subject to interpretation.
67In response, the respondent submits that its denial letters were compliant with the Schedule. The denial letters advised the applicant of the application of the MIG and included a review of the applicant’s medical documentation, which consisted of various treatment plan forms. The respondent notes that the applicant provided limited medical evidence to allow for specific reference.
68Further, the Tribunal has accepted that denial letters that indicate that the applicant falls within the MIG based on the medical documentation available at the time is sufficient and compliant with the Schedule. The respondent relies on Singh v. Aviva Insurance Company, 2022 CanLII 53747 (ON LAT).
The disputed treatment plans are not payable under s. 38(11) of the Schedule
69I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans are payable pursuant to s. 38(11) of the Schedule.
70I am not persuaded by the applicant’s submissions that the respondent’s denial letters failed to provide sufficient medical and other reasons as required by s. 38(8) of the Schedule.
71The applicant claims that the treatment plan dated January 6, 2024 for chiropractic treatment in the amount of $3,696.50 was improperly denied; however, no treatment plan matching this description has been tendered as evidence. Rather, the applicant relies on a treatment plan dated June 3, 2019 for chiropractic treatment in the amount of $3,696.50. In its denial letter dated June 13, 2019, the respondent partially approved the treatment plan dated June 3, 2019 in the amount of $1,300.00. The balance of the treatment plan was denied on the basis that the applicant’s injuries fall within the MIG and that he is not entitled to treatment beyond the MIG limits.
72The applicant claims that the treatment plan dated August 2, 2020 for chiropractic treatment in the amount of $2,569.40 was improperly denied; however, no treatment plan matching this description has been tendered as evidence. Rather, the applicant relies on a treatment plan dated August 1, 2019 for chiropractic treatment in the amount of $2,569.40. In its denial letter dated August 9, 2019, the respondent denied the treatment plan on the basis that the MIG applies to the applicant’s injuries and that the MIG limit has been exhausted.
73The applicant claims that the treatment plan dated September 16, 2019 for chiropractic treatment in the amount of $1,384.70 was improperly denied; however, no treatment plan matching this description has been tendered as evidence. Rather, the applicant relies on a treatment plan dated September 13, 2019 for chiropractic treatment in the amount of $1,384.70. In its denial letters dated September 17, 2019 and October 4, 2019, the respondent denied the treatment plan on the basis that the MIG applies to the applicant’s injuries and that the MIG limit has been exhausted.
74The applicant claims that the treatment plan dated October 2, 2020 for chiropractic treatment in the amount of $2,635.40 was improperly denied; however, no treatment plan matching this description has been tendered as evidence. Rather, the applicant relies on a treatment plan dated October 1, 2020 for chiropractic treatment in the amount of $2,635.40. In its denial letter dated October 13, 2020, the respondent denied the treatment plan on the basis that the MIG applies to the applicant’s injuries and that there is insufficient medical evidence to warrant treatment outside the MIG.
75The applicant claims that the treatment plan dated October 24, 2020 for chiropractic treatment in the amount of $2,569.40 was improperly denied; however, no treatment plan matching this description has been tendered as evidence. Rather, the applicant relies on a treatment plan dated October 1, 2020 for chiropractic treatment in the amount of $2,569.40. Further, the applicant did not include a denial letter for this treatment plan in the evidentiary record, and his submissions are silent on the validity of the missing denial letter.
76I have reviewed the respondent’s denial letters dated June 13, 2019, August 9, 2019, September 17, 2019, October 4, 2019, and October 13, 2020, and I find that the medical and other reasons contained in the respondent’s denial letters are consistent with the Schedule and M.B. Further, there is no evidence that the treatment plan dated October 24, 2020 was improperly denied as the corresponding denial letter was not included in the evidentiary record.
77I further find that the respondent is not prohibited from taking the position that the applicant has an impairment to which the MIG applies under s. 38(11)1 of the Schedule. There is no evidence that the respondent did not comply with s. 38(9) of the Schedule. Indeed, all the denial letters indicate that the respondent believes that the applicant’s injuries are subjected to the MIG in accordance with the Schedule.
78Accordingly, the applicant has failed to establish that the treatment plans are payable pursuant to s. 38(11) of the Schedule. Moreover, having determined that the applicant’s injuries fall within the MIG, the applicant is not entitled to the disputed treatment plans because they propose treatment outside the MIG and the $3,500.00 funding limit for a minor injury.
Interest
79Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.
Award
80Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of benefits.
81The applicant submits that the respondent has failed to deliver adjuster’s log notes as ordered by the Tribunal and requests that an adverse inference be drawn from the respondent’s failure to produce these notes. In response, the respondent argues that the applicant did not follow up regarding the production of the adjuster’s log notes nor did he bring a motion for production for these records. On reply, the applicant submits that he is not obligated to follow up with the respondent or to bring a motion when the respondent fails to comply with a direct order of the Tribunal.
82As I have concluded that the applicant remains in the MIG, is not entitled to treatment outside the MIG, and is not entitled to IRB, it follows that no benefits were unreasonably withheld or delayed. Further, as no benefits are owing, it is not necessary for me to consider whether an adverse inference should be drawn from the respondent’s failure to produce the adjuster’s log notes.
83Accordingly, the respondent is not liable to pay an award.
ORDER
84For the reasons outlined above, I find that:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
The applicant is not entitled to IRB.
The applicant is not entitled to the disputed treatment plans.
The applicant is not entitled to interest.
The respondent is not liable to pay an award.
85The application is dismissed.
Released: June 27, 2024
Ludmilla Jarda
Adjudicator