Knight v. BelairDirect, 2024 CanLII 67343

Citation: Knight v. BelairDirect, 2024 ONLAT 22-006650/AABS

Licence Appeal Tribunal File Number: 22-006650/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:

Kerry Knight

Applicant

and

BelairDirect

Respondent

DECISION

VICE-CHAIR: Julian DiBattista

APPEARANCES:

For the Applicant: Mike Pryce, Paralegal

For the Respondent: Aaron Weinroth, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kerry Knight, the applicant, was involved in an automobile accident on November 23, 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, Belair Direct, 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 MIG limit?

ii. Is the applicant entitled to $3,405.00 for physiotherapy services, proposed by Scarborough Physiotherapy & Rehabilitation Centre in a treatment plan/OCF-18 (‘plan’) dated October 22, 2020?

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

RESULT

3The applicant has not proven an injury which warrants removal from the MIG.

ANALYSIS

The applicant’s injuries are predominantly minor as defined by the Schedule

4I find that the applicant has not proven an injury which warrants removal from the MIG.

5An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s. 3(1). The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of “minor injury”.

6In addition, pursuant to s. 18(2), the applicant may be removed from the MIG if 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.

7The applicant submits that they should be removed from the MIG as they have a pre-existing condition as per s. 18(2) and chronic pain with a functional impairment.

The applicant has not demonstrated a pre-existing condition pursuant to s. 18(2)

8I find that the applicant has not demonstrated a pre-existing injury which would warrant removal from the MIG.

9The applicant submits that the clinical notes and records of Dr. Andrew Leta, the applicant’s family physician, discuss the pre-existing injuries to the back area which were noted in 2010.

10The respondent notes that the applicant has failed to show that the pre-existing condition would prevent recovery if the applicant were to be treated within the MIG limits.

11I agree with the respondent. The test for removal from the MIG via s. 18(2) is a two-part test. The first part is having a documented pre-existing condition. The second part requires compelling medical evidence that the pre-existing condition precludes maximal medical recovery if kept within the MIG limits.

12The applicant has not addressed the second part of this test in their submissions, nor have they adduced any evidence which satisfies this test.

13Therefore, I find that the applicant has failed to demonstrate a pre-existing condition pursuant to s. 18(2) which would warrant removal from the MIG.

The applicant has not proven chronic pain with a functional impairment

14I find that the applicant has not demonstrated that they should be removed from the MIG based on chronic pain with a functional impairment.

15The applicant submits that they should be removed from the MIG based on the medical evidence of Dr. Leta and Scarborough Physio & Rehab.

16That is the totality of the applicant’s submission. The applicant has not identified specific notes or records which demonstrate chronic pain with a functional impairment. Nor has the applicant made submissions on what the functional impairment is. On a review of the notes, I have not been able to find documented instances of chronic pain with a functional impairment.

17It is well settled that the burden of proof in a case where the applicant is attempting to escape the MIG falls on the applicant.

18In this instance, the applicant has not made submissions which address their burden. The applicant did not submit a reply, despite being given the opportunity to do so.

19The respondent points to a s. 44 assessment conducted by Dr. Riaz Moola, physician, conducted on January 7, 2021. In his report, Dr. Moola found that the applicant has sustained uncomplicated soft-tissue strain injuries only, which are considered minor injuries as per the Schedule.

20I give weight to the findings of Dr. Moola. There has been no evidence highlighted to demonstrate that the applicant has developed chronic pain with a functional impairment. Therefore, I find that the applicant has not proven an injury which warrants removal from the MIG.

The applicant is entitled to treatment up to the MIG limits

21Having found that the applicant remains within the MIG, an analysis of the reasonableness and necessity of the disputed treatment plans is not required. The applicant is entitled to funds for treatment up to the $3,500.00 limit of the MIG.

The applicant is not entitled to interest.

22As there is no entitlement to the disputed treatment plans, no interest is payable.

ORDER

23For the reasons above I find that:

i. The applicant’s injuries are minor in nature and they remain subject to the MIG;

ii. The applicant is not entitled to the disputed treatment plans or interest; and

iii. The Application is dismissed.