Licence Appeal Tribunal File Number: 21-014175/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:
[M.A.P]
(A Minor by their litigation guardian, [D.A.P])
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Dayana Soto Santana, Counsel
For the Respondent:
Tresa Zacharia, Counsel
HEARD:
In Writing
OVERVIEW
1Mr. [M.A.P.S] (“applicant”), was involved in an automobile accident on April 26, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“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 the treatment plans/OCF-18 (“plan”) proposed by 101 Physio as follows:
(i) $2,890.60 for chiropractic services dated September 30, 2019, and denied October 3, 2019; and
(ii) (ii) $2,203.72 for chiropractic services dated August 12, 2020, and denied August 28, 2020; and
(iii) $2,170.83 for chiropractic services dated October 21, 2020, and denied November 4, 2020; and
(iv) $2,629.33 for chiropractic services dated February 28, 2020, and denied March 2, 2020; and
iii. Is the applicant entitled to $2,460.00 for a mental health assessment proposed by 101 Assessments June 13, 2019, and denied November 12, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
PreliMInary Issue
3The respondent states that the applicant is relying on Clinical Notes and Records (“CNRs”) of Dr. Steven MacDonald from the period of August 11, 2022, to May 4, 2023, and an MRI completed on April 4, 2023, which were not disclosed or produced to either the respondent or respondent’s counsel at any time prior to the filing of the applicant’s submissions, received on October 2, 2023. The respondent argues that this is in contravention of Rule 9.2 of the Tribunal’s Licence Appeal Tribunal Rules.
9.2 DISCLOSURE OF DOCUMENTS
a. A party to a hearing shall, at least 10 days before the hearing, or at any other time ordered by the Tribunal or undertaken by the party:
b. Disclose to the other parties the existence of every document and anything else the party intends to present as evidence at the hearing;
c. Disclose a list of witnesses whom the party may call to give evidence at the hearing and a brief description of each witness’ anticipated testimony; and
d. Serve a copy of the documents, numbered consecutively, on the other parties.
4The applicant makes no submission regarding the late submission of the Doctor’s notes.
5A case conference was held on January 23, 2023. In the case conference report and order it states:
a. EXCHANGE OF DOCUMENTS BETWEEN THE PARTIES (PRODUCTIONS)
i. The parties agreed they shall exchange the following by no later than 30 calendar days from the case conference:
ii. The respondent did not have any production requests at the case conference.
iii. The respondent shall provide the applicant with:
- Items no. 1 and 2 requested in the applicant’s case conference summary.
b. By no later than 60 calendar days from the case conference, both parties shall exchange all other documents not previously disclosed upon which they intend to rely at the hearing.
c. By no later than 90 calendar days after the case conference, the parties shall disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing.
6The respondent claims, the late service of these Clinical Notes and Records has prejudiced them as they received them two weeks prior to their submissions were due and were therefore unable to have a medical assessor review them and provide an updated opinion on their impact on the issues in dispute.
7In review of Rule 9.2, and of the case conference report and order, and in absence of the applicant providing any explanation for the late submission, I agree with the respondent that the applicant did not meet the required time frame for submitting evidence to form part of this hearing.
8As such, I will exclude the CNRs of Dr. Steven MacDonald from the period of August 11, 2022, to May 4, 2023, and an MRI completed on April 4, 2023 from my consideration in reviewing the submitted evidence.
RESULT
9I find that:
i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.
ANALYSIS
The Minor Injury Guideline
10Section 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 minor injuries. 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.”
11An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
12The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.
13The applicant argues that the injuries he suffered as a result of the motor vehicle accident were more than minor in nature.
14The respondent argues that the applicant should not be removed from MIG as there is no evidence that the applicant suffers from more than minor injuries.
The applicant remains within the MIG
15I find that the applicant has not met his onus and demonstrated that on a balance of probabilities, his accident-related impairments warrant removal from the MIG.
The applicant does not suffer from an injury that falls outside MIG classification
16The applicant has not directed me to medical evidence that the injuries he sustained as part of the motor vehicle accident were beyond those included in the definition of minor injuries in the Schedule.
17The clinical notes and records (“CNRs”) Dr. MacDonald that have not been excluded, do not show any diagnosed injuries beyond minor in nature. They discuss injuries that the Doctor perceives as minor in nature.
18An Insurer’s Examination (“IE”) completed by Dr. Walters, on October 8, 2020. The examination completed by the Doctor led to his conclusion that the injuries sustained in the accident by the applicant were minor injuries. Dr. Walters reviewed all medical data to date of the examination and conducted an in-person examination of the applicant.
19In addition, there was an IE completed by Dr. Kanagaratnam on November 11, 2020. This was a psychological examination of the applicant. It found that the applicant did not sustain any impairments because of the motor vehicle accident and asserted that the applicant suffered from predominately minor injuries.
20Reviewing all the submitted evidence, I have not found any compelling evidence submitted to conclude that the injuries suffered from the motor vehicle accident were more than minor in nature.
21I find that the applicant have suffered minor injuries and is not removed from MIG limits.
Conclusion
22For the reasons noted above, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.
The Treatment Plans
23As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary as they are outside the MIG limits.
24As I have found that the applicant remains in MIG and no payments are owned, no interest is owed on overdue payments.
ORDER
25I find that:
i. The applicant has failed to demonstrate that his accident-related impairments warrant removal from the MIG.
ii. The treatment plans are not playable.
iii. As no payments are outstanding, no interest is due.
iv. The application is dismissed.
Released: July 23, 2024
_____________________________
Robert Rock
Adjudicator```