Citation: Vu v. BelairDirect Insurance Company, 2024 ONLAT 22-006360/AABS
Licence Appeal Tribunal File Number: 22-006360/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:
Thi Hong Phuong Vu
Applicant
and
BelairDirect Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Kameliya Stancheva, Paralegal
For the Respondent: Maryam Younes, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Thi Hong Phuong Vu, the applicant, was involved in an automobile accident on September 10, 2021, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In submissions, the respondent notes that $89.64 remains within the $3,500.00 limit of the Minor Injury Guideline (“MIG”).
ISSUES
3The 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 $3,836.20 for physiotherapy services, proposed by Total Wellness Clinic in a treatment plan/OCF-18 (“plan”) dated March 30, 2020?
iii. Is the applicant entitled to $200.50 ($1298.75 less $1,097.25 approved) for physiotherapy services, proposed by Total Wellness Clinic in a treatment plan dated January 10, 2022?
iv. Is the applicant entitled to $2,537.41 for a Psychological Assessment, proposed by Total Wellness Clinic in a treatment plan dated February 28, 2022?
v. Is the applicant entitled to $87.19 ($200.00 less $112.81 approved) for OCF-3 invoice completion dated October 27, 2021?
vi. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not demonstrated an injury or impairment that warrants removal from the MIG.
5No interest is payable.
6The applicant is not entitled to an award under s.10 of O.Reg 664.
ANALYSIS
The applicant is subject to treatment within the MIG
7I find that the applicant has not proven they suffer from an injury or impairment which would warrant removal from the MIG.
8An 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”.
9In 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.
10It is well settled that the burden of proof to demonstrate an injury or impairment that warrants removal from the MIG lies with the applicant. In their initial submissions, the applicant did not address how the applicant’s injuries and impairments contrast with s. 3(1) or any of the legal tests that could be used to demonstrate injuries outside the MIG.
11The applicant made numerous references to a “complete inability to carry on a normal life” and that “activities of daily living are significantly impacted”. However, this is not the criteria to escape the MIG.
12There must be documented evidence of an injury which falls outside the definition in s. 3(1), chronic pain with a functional impairment, a psychological impairment or a pre-existing condition combined with compelling medical evidence that said pre-existing condition precludes maximal medical recovery within the confines of the MIG.
13The closest the applicant comes to tangentially addressing the requirement above is in summarizing a clinical note by Dr. Bernie Tran, the applicant’s family physician, documenting a visit on January 11, 2023. In this note, Dr. Tran notes that the applicant “still has PTSD”.
14The respondent submits that a single reference to PTSD by the applicant’s family physician is not sufficient to escape the MIG. I agree with this position, and no further medical evidence of a psychological impairment has been adduced in the applicant’s submissions or reply.
15The respondent further submits a s. 44 psychological assessment conducted by Dr. Marc Mandel, psychologist, on April 28, 2022. In his report Dr. Mandel found that there is a lack of consistent objective information present that would support a DSM V diagnosis or suggest that the applicant suffers from clinically significant symptoms that would indicate a psychological impairment or disability as a direct result of the subject motor vehicle accident.
16I give weight to the evidence of Dr. Mandel, as the applicant has failed to adduce any medical evidence that would indicate a diagnosed psychological impairment beyond Dr. Tran’s note.
17In their reply, the applicant again submits positions which do not address the tests for this dispute. The applicant notes that the overwhelming consensus from the examining doctors is that they will benefit from additional treatment, and that sufficient evidence exists that shows a need for continuing treatment. However, as mentioned above, this is not the threshold which must be met.
18As the applicant has not proven an injury or impairment which would warrant removal from the MIG, I find that the applicant’s injuries are minor in nature and that they are subject to the $3,500.00 MIG limit.
The applicant isn’t entitled to any of the disputed treatment plans
19As the amount remaining in the MIG is negligible, an analysis into the reasonableness and necessity of the disputed treatment plans is not required.
Interest
20As no benefits are owing, no interest is payable.
Award
21As the applicant has not provided particulars or submissions on entitlement to an award under s.10 of O. Reg. 664, there is no basis on which to award one.
ORDER
22For the reasons above, I find that:
i. The applicant’s injuries fall within the MIG.
ii. The applicant is not entitled to an award.
iii. The application is dismissed.
Released: July 15, 2024
__________________________
Julian DiBattista
Vice-Chair