Licence Appeal Tribunal File Number: 22-005925/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:
Freddie Flor Recolizado
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Hande Bilhan
APPEARANCES:
For the Applicant:
Freddie Flor Recolizado, Applicant
Dayanas Soto Santana, Paralegal
For the Respondent:
Co-operators General Insurance Company
Julianne Brimfield, Counsel
HEARD: In Writing
July 9, 2024
OVERVIEW
1Freddie Flor Recolizado, the applicant, was involved in an automobile accident on October 11, 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, The Co-Operators General Insurance Company, 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? Note: The parties agree the MIG limits have not been exhausted and their submissions shall identify the amounts remaining.
ii. Is the applicant entitled to $2,400.00 for a cognitive assessment, proposed by Promed Rehabilitation Clinic in a treatment plan dated June 5, 2021?
iii. Is the applicant entitled to $1,978.01 for a functional abilities assessment, proposed by Promed Rehabilitation Clinic in a treatment plan dated July 22, 2021?
iv. Is the applicant entitled to $2,164.95 for a chronic pain assessment, proposed by Promed Rehabilitation Clinic in a treatment plan dated July 22, 2021?
v. Is the applicant entitled to $1,107.50 for physiotherapy services, proposed by Promed Rehabilitation Clinic in a treatment plan dated March 6, 2021?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries fall within the MIG.
4As the applicant’s injuries fall within the MIG, he is not entitled to the medical assessments and physiotherapy treatment plan in dispute.
5As none of the benefits in dispute are owing, the applicant is not entitled to interest.
6The respondent is not liable to pay an award under s. 10 of O. Reg. 664.
ANALYSIS
Minor Injury Guideline (MIG)
7I find that the applicant’s injuries fall within the MIG.
8Section 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.”
9An 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.
10The burden of proof rests with the applicant to prove that his injuries fall outside the MIG.
11The applicant argues that he should be removed from the MIG because he has developed chronic pain, psychological issues and cognitive injuries as a result of the accident. The applicant refers to medical reports from Dr. Mayer Yacowar as evidence of “substantive preexisting conditions” that would prevent maximal recovery within the MIG limits.
12The respondent counters that the applicant sustained soft-tissue sprain/strain injuries as a result of the accident, all of which fall under the definition of minor injuries in the Schedule. Further, the respondent holds that there is no evidence of chronic pain with functional impairment, nor of psychological or cognitive impairments that would warrant the applicant’s removal from the MIG.
13The respondent relies on the same medical reports of Dr. Yacowar and the post-accident Emergency Department Consultation Report from Humber River Hospital to conclude that the applicant’s injuries fall within the MIG.
14The respondent submits that the applicant told his doctor in January 2021 that his pain was resolving, and that his doctor had not ordered any physical exams, diagnostic imaging or referrals to specialists after the accident.
15The respondent further argues that given that the applicant is working, there is no functional impairment and contends that the applicant should be held within the MIG.
16I have reviewed the reports of Dr. Yacowar. I did not find any compelling evidence that the applicant had any significant musculoskeletal injuries in the past that would hamper maximal recovery of the applicant’s accident-related soft tissue injuries.
17For example, the applicant refers to a broken clavicle in 2019 as a preexisting condition which contributed to him developing chronic pain. However, his doctor’s report of February 8, 2019, states the following: “Fracture of his left clavicle is now healed and his examination x-ray of lower back is stable and normal.” The applicant has not presented medical evidence which indicates the broken clavicle might preclude recovery from the injuries sustained in the accident if he is kept within the MIG.
18Reviewing the post-accident Emergency Department Consultation Report from Humber River Hospital, the applicant was diagnosed with contusions and was discharged home as he “appeared clinically well”.
19In the records of Dr. Yacowar that were available to me, there are no accident-related complaints post January 2021. I have also not found reference to chronic pain in any of the post accident medical reports that the applicant shared other than his self diagnosis. Similarly, none of the post-accident medical reports reference psychological or cognitive concerns.
20At the Case Conference, the applicant was ordered to produce the updated clinical notes of Dr. Yacowar from April 2021 to present, as well as the clinical records from the physiotherapy clinic, a prescription summary, and an OHIP summary. I note that none of these records were produced by the applicant despite the fact that the burden of proof rests with him and he could have relied on updated medical records to support his claims.
21I do not find that the applicant has demonstrated that he is suffering from chronic pain leading to functional impairment, psychological impairment or cognitive issues as a result of his accident.
22I am also not convinced that the applicant suffered from a pre-existing condition that would prevent him from achieving maximal recovery within the MIG limits.
23I 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.
Medical Assessments and Rehabilitation Benefits
24As the applicant’s injuries fall within the MIG, I find that the applicant is not entitled to the assessment and physiotherapy treatment in dispute.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, there is no interest due.
Award
26As there is no outstanding payment, the respondent cannot be found liable to pay an award under s. 10 of O. Reg. 664.
ORDER
27For the reasons set out above, I find that:
i. The applicant is not entitled to the benefits in dispute;
ii. The applicant is not entitled to interest; and,
iii. The applicant is not entitled to an award.
Released: August 1, 2024
Hande Bilhan
Vice-Chair