Citation: Edore v. Jevco Insurance, 2024 ONLAT 22-005153/AABS

Licence Appeal Tribunal File Number: 22-005153/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 Edore

Applicant

and

Jevco Insurance

Respondent

DECISION

ADJUDICATOR:

Robert Fleming

APPEARANCES:

For the Applicant:

Ryan St Aubin, Counsel

For the Respondent:

Patricia Dimakos, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Anthony Edore, the applicant, was involved in an automobile accident on May 14, 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, Jevco Insurance, 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?

ii. Is the applicant entitled to $1,770.01 for physiotherapy services, proposed by Crocus Care Solutions Inc. in a treatment plan/OCF-18 (“plan”) that was denied on July 7, 2020?

iii. Is the applicant entitled to $2,594.00 for physiotherapy services, proposed by Crocus Care Solutions Inc. in a plan that was denied on October 22, 2020?

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

3Neither the CCRO that set this matter down for a written hearing nor the parties in their submissions confirm if there was any funding remaining within the MIG limit of $3,500.00.

RESULT

4The applicant remains in the MIG.

5The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, if incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

6Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

ANALYSIS

Applicability of the MIG

7I find that the applicant has not demonstrated that they should be removed from the MIG.

8Section 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.”

9The applicant may be removed from the MIG if they can establish their accident-related injuries fall outside of the MIG or, under section 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the confines of the MIG.

10In this matter, the applicant seeks to be removed from the MIG because of their injuries which include a concussion, elbow, shoulder, and back pain. The applicant did not submit that they have a documented pre-existing injury or condition. The burden of proof on a balance of probabilities lies with the applicant.

11The clinical notes and records (CNR’s) of family doctor, Dr. Ghali, from the first 3 months after the accident (May 20 and 27, June 8, July 10 and 27 and August 20, 2020) noted that the applicant was experiencing elbow pain, shoulder pain and arm pain. I note that this falls within the Schedule’s definition of a minor injury. On the initial visit, Dr. Ghali diagnosed a concussion, recommended physiotherapy and prescribed Tylenol and Advil. Diagnostic testing revealed a mild partial tear predominantly interstitial of the common extensor tendon. I note that the diagnostic test results demonstrate that this falls within the Schedule’s definition of a sprain.

12Back pain was recorded for the first time in Dr. Ghali’s CNR’s on August 20, 2020 and again April 12, 2022. The applicant also indicated that his upper back pain and headaches had resolved when assessed November 20, 2020, by Dr. Pankaj Bansal, the independent medical evaluator for the respondent. This demonstrates that the applicant’s back pain and headaches are not ongoing or continuous and does not warrant removal from the MIG.

13I find that the applicant has not met their burden of proof on a balance of probabilities that their accident-related injuries fall outside of the MIG.

14The applicant remains in the MIG. Review of the treatment plans in dispute for reasonableness and necessity is therefore not required.

15The applicant is, however, entitled to the amount remaining within the $3,500.00 MIG limit as of the date of this decision, if incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

Interest

16Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

17I find that:

i. The applicant has not demonstrated that their injuries warrant removal from the Minor Injury Guideline (“MIG”) limit.

ii. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, if incurred, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

iii. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

iv. The application is dismissed.