Citation: Lazar v. Pembridge Insurance, 2024 ONLAT 22-009423/AABS

Licence Appeal Tribunal File Number: 22-009423/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:

Rony Lazar

Applicant

and

Pembridge Insurance

Respondent

DECISION

VICE-CHAIR:

Monica Ciriello

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Ravinder Chahal, Counsel

HEARD: In Writing

OVERVIEW

1Rony Lazar, the applicant, was involved in an automobile accident on August 31, 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, Pembridge Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

Non-Compliance with the Case Conference Report and Order

2The applicant took issue with the respondent’s failure to comply with the Tribunal’s Case Conference Report and Order (“CCRO”) dated June 1, 2023, that outlined the timetable for submissions and evidence. The applicant submits that the respondent did not provide the complete copy of the accident benefits file and adjustor’s logs and notes. The applicant requests that the Tribunal exclude all correspondence between August 31, 2019 and June 22, 2020. Further, the applicant requests that if these documents are to be relied on the respondent must provide the Tribunal confirmation that every document was delivered to the applicant and the applicant’s representative pursuant to section 64 of the Schedule.

3The respondent submits that the applicant could have filed a motion to the Tribunal prior to the written hearing to enforce the CCRO, and that at no point prior to the hearing did the applicant notify the respondent of the requests. Furthermore, the respondent submits that it was in compliance with section 64 of the Schedule.

4I am not satisfied by the submissions of the applicant, that the actions of the respondent resulted in prejudice, nor am I satisfied that any submissions or correspondence are at issue in this application. The applicant’s request is denied.

ISSUES

5The following issues are to be decided:

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 limit?

ii. Is the applicant entitled to $1,102.48 for physiotherapy treatment proposed by Active Care Oakville in an OCF-18 submitted October 20, 2022?

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

6The applicant and respondent resolved issue 2 [2] outlined in the CCRO, and the OCF-18 submitted November 11, 2021 in the amount of $834.00 is withdrawn.

RESULT

7I find that:

i. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plan in dispute;

iii. The applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

8The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

10An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

11It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant does not provide submissions as to the grounds he is advancing for removal from the MIG. The respondent submits that the applicant has failed to establish that his injuries are not predominately minor and that they can be treated within the confines of the MIG. I agree with the respondent.

12The crux of the applicant’s MIG submissions is that the January 28, 2022, psychiatry assessment Insurers Examination (“IE”) of Dr. Michael Ko, physical medicine and rehabilitation specialist, should be excluded as the NOE was not provided to the applicant nor applicant’s counsel. The applicant further makes submissions of various dates in which the respondent may have provided notice to the applicant.

13The respondent submits that the applicant failed to meet his onus and provide medical evidence in his submissions that demonstrate his injuries fall outside of the MIG. Further, the respondent submits that the applicant did not provide any medical evidence that demonstrates the necessity for further medical treatment. I agree with the respondent, the applicant did not tender evidence to meet his onus.

14As a result, I find that the applicant did not provide persuasive evidence that his injuries are not predominately minor and that they can be treated within the confines of the MIG.

15The applicant is not entitled to the disputed treatment plan because I have found that the applicant has sustained a minor injury and is subject to the MIG. As a result, an analysis of whether the treatment plan is reasonable and necessary is not required.

Interest

16Given that there are no overdue payments of benefits, the applicant is not entitled to interest.

ORDER

17The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plan in dispute; and

iii. The applicant is not entitled to interest.

iv. The application is dismissed.