Licence Appeal Tribunal File Number: 22-002273/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:
Viswanathan Thamotharampillai
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR:
Kieffer Norton
APPEARANCES:
For the Applicant:
Viswanathan Thamotharampillai,
Jeremy Magence, Counsel
For the Respondent:
Unifund Assurance Company
Dave Dhillon, Counsel
HEARD:
In Writing
OVERVIEW
1Viswanathan Thamotharampillai, the applicant, was involved in an automobile accident on December 20, 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, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent determined that the applicant should be treated within the Minor Injury Guideline (the “MIG”) and its $3,500.00 limit on treatment, and also denied a treatment plan/OCF-18. The applicant submitted an application to the License Appeal Tribunal – Automobile Accident Benefits Service (the “tribunal) for resolution of the dispute.
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 the medical rehabilitation services proposed by Pro Life Wellness, as follows:
(i) $2,661.58 for chiropractic services, in a treatment plan submitted November 13, 202?
(ii) $2,200.00 for psychological assessment, in a treatment plan submitted February 12, 2021?
(iii) $2,861.08 for physiotherapy services, in a treatment plan submitted April 29, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that:
i. The applicant sustained a predominantly minor injury as a result of the subject accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
ii. Because the MIG applies, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans. The plans are not payable, and no interest is owing.
PROCEDURAL ISSUES
5The applicant submits the respondents submissions did not adhere to the submission rules set out in the case conference report of adjudicator Frontini of January 11, 2023. The submissions were to be double-spaced of 12 point-font and to not exceed 10 pages in length. The respondent’s submissions were single spaced however the length of the submissions were only five pages in length. I do not find that there has been anything procedurally unfair with regards to the submission length that would unduly prejudice the applicant.
ANALYSIS
The Minor Injury Guideline (“MIG”)
6Section 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 sequalae to such an injury”.
7An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG. Removal from the MIG can also be warranted if there is a pre-existing condition and compelling medical evidence stating that this condition precludes recovery if kept within the MIG pursuant to s. 18(2) of the Schedule. The tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
8The burden is on the applicant to demonstrate on a balance of probabilities, that their injuries fall outside of the MIG.
9In response, the respondent submits that the applicant has not met their burden to prove that they suffer from more than minor injuries, that their pre-existing conditions prevents maximal medical recovery under the MIG or that they sustained psychological impairment from the accident.
The Applicant remains within the MIG
10I find that the applicant has failed to demonstrate, on a balance of probabilities, that they suffer from any injury or condition that warrants removal from the MIG.
11The applicant submits that they have a pre-existing medical condition that warrants removal from the MIG, however the evidence in support of such submission is not compelling.
12The applicant relies on three pre-existing conditions that would require a protracted recovery time that would remove them from the MIG. Those pre-existing conditions are: that their age was 71 years at the time of the accident; that they suffer a cardiovascular illness being treated by medication; and, that the applicant was still injured from a motor vehicle accident occurring six months prior to the motor vehicle accident in this application.
13The applicant submits that their age is a pre-existing condition that would require a protracted recovery time. The applicant does not provide any medical or opinion evidence that would support this submission. I find that the applicant has not established that they should be removed from the MIG on this basis.
14The applicant submits that they suffer from a cardiovascular illness being treated by medication and that this is a pre-existing condition that would require a protracted recovery time, warranting removal from the MIG. The applicant submits the report of Dr. Nolan, a chiropractor, as evidence of these conditions. I agree with the respondent that Dr. Nolan, a chiropractor, is unqualified to make a finding regarding cardiovascular illness that would delay recovery of the applicant. I find that the applicant has not established that they should be removed from the MIG on this basis.
15The applicant submits that injuries sustained from a motor vehicle accident in June of 2019, six months prior to the motor vehicle accident in this application, prevent him from reaching maximal recovery under the MIG. However, I find no compelling evidence from the applicant submissions and documents that show any pre-existing condition prior to the December 19, 2020 accident. Furthermore, the medical reports submitted do not provide any explanation as to how the injuries sustained from the previous accident would prevent maximal recovery from occurring within the MIG. I find that the applicant has not established that they should be removed from the MIG on this basis.
16The applicant submits that the psychological diagnosis of Dr. Mrahar (psychologist) on the OCF-18, specifically the diagnosis of moderate depressive episode and adjustment disorder are compelling evidence on their own to warrant removal from the MIG. The respondent submits that the applicant’s injuries could be treated within the MIG based on the medical records. The respondent also submits that the OCF-18 would not be reasonable or necessary as the applicant’s medical history from their family doctor did not support any psychological or emotional impairments. I find no supporting evidence beyond the OCF-18 that can support the position of psychological or emotional impairment. I find that the applicant has not established that they should be removed from the MIG on this basis.
17Since the applicant remains subject to the MIG, it is unnecessary to determine whether the treatment plans in dispute are reasonable and necessary.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that there are no payments of any overdue benefits, as such there is no interest to be applied.
ORDER
19I find that:
i. The applicant has failed to meet their burden to demonstrate that treatment outside the MIG is warranted. They remain within the MIG.
ii. Because the MIG applies, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans. The plans are not payable, and no interest is owing.
iii. The application is dismissed.
Released: August 26, 2024
Kieffer Norton
Adjudicator