Morgan v. Sonnet Insurance Company, 2025 CanLII 10774
Licence Appeal Tribunal File Number: 22-011517/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:
Tyrone Morgan
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Kevin So, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Tyrone Morgan, (the “applicant”), was involved in an automobile accident on November 14, 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 Sonnet Insurance Company (the “respondent”) 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?
ii. Is the applicant entitled to $223.38 ($1,300.00 less $1,076.62 approved) for chiropractic services, proposed by MacKenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“OCF-18”) dated March 1, 2021?
iii. Is the applicant entitled to $2,026.55 for chiropractic services, proposed by MacKenzie Medical Rehabilitation Centre in a OCF-18 dated April 19, 2021?
iv. Is the applicant entitled to $2,635.40 for chiropractic services, proposed by MacKenzie Medical Rehabilitation Centre in a OCF-18 dated September 30, 2021?
v. Is the applicant entitled to $2,635.40 for chiropractic services, proposed by MacKenzie Medical Rehabilitation Centre in a OCF-18 dated November 4, 2021?
vi. Is the applicant entitled to $3,795.50 for chiropractic services, proposed by MacKenzie Medical Rehabilitation Centre in a OCF-18 dated December 7, 2020?
vii. Is the applicant entitled to the assessments proposed by Princeton Hills Medical Assessments, as follows:
$2,520.00 for an Orthopaedic Assessment, in a OCF-18 dated February 19, 2021; and
$2,200.00 for a Psychological Assessment, in a OCF-18 dated March 3, 2021?
viii. Is the applicant entitled to $200.00 for the completion of a Disability Certificate (“OCF-3”) dated November 4, 2021?
ix. Is the applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week from November 21, 2021 to date and ongoing?
x. Is the applicant entitled to interest on any overdue payment of benefits?
xi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3I find that:
i. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. He is not entitled to the treatment plans, nor interest.
iii. The applicant is not entitled to $200.00 for the cost of the completion of the OCF-3, nor interest.
iv. The applicant is not entitled to IRBs, nor interest.
v. The respondent is not liable to pay an award.
vi. The application is dismissed.
ANALYSIS
The applicant remains within the MIG
4I find that the applicant has not demonstrated on a balance of probabilities that he suffers from an injury or condition that warrants removal from the MIG.
5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”
6An 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 any accident-related 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.
7In all cases, the burden of proof lies with the applicant. Problematically, despite the applicability of the MIG being a live issue in dispute, the applicant offered no submissions to demonstrate why he should be removed from the MIG. Instead, the applicant summarized the medical evidence, referenced a number of cases, and made a blanket submission that all the OCF-18s in dispute should be approved. This alone makes it challenging for the applicant to meet his burden of proof.
8The respondent counters that the applicant has not provided sufficient medical evidence to suggest that he sustained a non-MIG injury as a result of the accident. It further argues that the clinical notes and records (“CNRs”) of Dr. Richard Chen, family physician, demonstrate that the applicant’s accident-related injuries had resolved prior to being involved in a bicycle accident in January of 2021. It further argues that in this 2021 bicycle accident, the applicant sustained a fractured right femur (which required surgery), and a mallet finger injury. To this end, it relies upon the CNRs of Dr. Chen, and the s. 44 report of Dr. James Stewart, family physician, dated November 19, 2021.
9I find that the medical evidence before me demonstrates that the applicant sustained injuries that are classified within the MIG, for the reasons that will be outlined below.
10The OCF-3, completed by Dr. Sai Lam Rudi Chan, chiropractor, listed injuries that fall within the definition of a minor injury, with the exception of neurological and psychological conditions, such as: post-concussion syndrome and sleep disorder, unspecified. I discount the opinion of Dr. Chan as a chiropractor in his above-noted diagnoses since neurological and psychological conditions are not within his scope of practice. Moreover, the applicant has not referred me to other evidence that collaborates that he sustained a concussion in this accident.
11For example, the CNRs of Trillium Health Partners show that the applicant attended the emergency department because of headaches, back pain, and right shoulder pain and because he had passed out. Particularly, the applicant advised the emergency personnel of the events that transpired from the night of the accident to when he woke up in the parking lot of the hospital. For instance, the applicant reported that he spent most of the night awake following the accident because he filled out an accident report with the police. The applicant further reported that once he developed headaches, he arrived at the parking lot of the hospital, however he passed out in his vehicle.
12Dr. Katherine Soucie, emergency physician, opined that the applicant likely passed out due to fatigue however she also requisitioned a CT scan, electrocardiogram testing and blood work. Subsequently, Dr. Soucie noted that the testing found no evidence of abnormalities, and opined that the likely cause of the applicant passing out was due to exhaustion. Significantly, Dr. Soucie advised the applicant that he may have a concussion, and if he developed any concussion symptoms, to see his family physician, and provided a pamphlet with the information on what the symptoms were.
13In my view, Dr. Soucie concluding that the applicant may have a concussion is not akin to a concussion diagnosis, especially when the applicant has not referred me to CNRs from Dr. Chan that support he was diagnosed with a concussion. Rather, the applicant relies upon a CNR of November 19, 2020. In this CNR, Dr. Chan noted that the applicant developed headaches one and half hours after the accident, drove himself to the emergency department, and had a syncopal episode. However, the applicant did not report concussion symptoms to Dr. Chan although he reported constant headaches and occasional slight, blurry vision. Crucially, Dr. Chan did not diagnose the applicant with a concussion or refer him to a neurologist.
14In the December 21, 2020 CNR, which is the last entry before he was involved in the bicycle accident, Dr. Chan noted that the applicant’s headaches had resolved. Moreover, Dr. Chan did not diagnose the applicant with a concussion, or refer him to a neurologist. In short, I find that the evidence is lacking to support that the applicant has a concussion from the accident.
15In my view, the CNRs of Dr. Chan also prove that the applicant sustained musculoskeletal pain and sprain injuries which is captured within the definition of a “minor injury” under the Schedule. Indeed, on November 19, 2020 and December 2, 2020, Dr. Chan diagnosed the applicant with lower back sprain, neck sprain, and musculoskeletal pain to the bilateral knee.
16I also find that it is probable that the applicant’s accident-related injuries resolved in 2020 because on December 21, 2020, Dr. Chan noted that the applicant’s back, neck and knee pain were improving. Also, after January of 2021, the CNRs of Dr. Chan pertain to the applicant’s bicycle accident where he sustained a right femur fracture, and a closed mallet injury to the right middle finger.
17The applicant has not referred me to any CNRs beyond December of 2020 where he reported pain from the accident. I acknowledge that the applicant summarized the CNRs of July 8, 2021, July 11, 2023, August 8, 2023, and August 28, 2023, however in my opinion, none of these entries relate to the accident.
18For instance, on July 8, 2021, the applicant met with Dr. Chan for his mallet injury and right femur fracture from the bicycle accident and there is no reference to the car accident. Nor, did the applicant report any back, neck, and knee pain from the car accident.
19Likewise, on July 11, 2023, the applicant reported that he had bilateral knee pain. However, Dr. Chan noted the applicant’s involvement in the bicycle accident of 2021, which resulted in a right femur fracture. Ultimately, Dr. Chan did not provide an opinion on the origin of this knee pain, and there was no reference to the car accident. Similarly, on August 8, 2023, Dr. Chan noted that the applicant had bilateral knee pain but again he did not provide an opinion on the origin of this knee pain. There was also no reference to the car accident in this CNR.
20On August 28, 2023, the applicant reported a history of difficulty concentrating and focusing, which had been a concern since he was young. Dr. Chan opined that it was difficult to diagnose attention deficit hyperactivity disorder without a psychoeducation assessment. Moreover, Dr. Chan opined that the applicant’s cannabis use could also be contributing to the applicant’s poor concentration. Significantly, there was no reference to the car accident in this CNR, nor did Dr. Chan opine that the accident was the origin of these difficulties.
21In conclusion, I have limited basis to find that the applicant should be removed from the MIG because of the dearth of medical evidence provided, because the last accident-related complaint was on December 21, 2020, and Dr. Stewart opined that the applicant sustained cervical spine sprain/strain, lumbosacral spine sprain/strain and contusions injuries to the chest and right shoulder, which had resolved. On the limited medical evidence available, I see no reason to disagree with this opinion.
The applicant is not entitled to the cost of the completion of the OCF-3, in the amount of $200.00
22I find that the applicant is not entitled to payment for the completion of the OCF-3.
23Section 25 of the Schedule states that the insurer shall pay for the reasonable fees charged for preparing an OCF-3 if required under ss. 21, 36 or 37. Under s. 21, the insurer may request an OCF-3 from the insured person for lost educational expenses as often as is reasonably necessary. Section 36 states that an insured person claiming a specified benefit shall submit a completed OCF-3 with their application under s. 32. Section 37 states that an insurer may, but not more often than is reasonably necessary, request a new OCF-3.
24The applicant provided no submissions on why the cost of the OCF-3 was payable, nor did he refer me to evidence in this regard.
25The respondent argues that it never requested this OCF-3 and therefore it is not payable under ss. 36 and 37.
26As the onus is on the applicant to establish entitlement to the cost of completing the OCF-3, and he has provided no submissions on this point or referred me to evidence, it follows that he has not met his onus. Moreover, the respondent did not request the OCF-3 and the applicant did not tender a copy of the OCF-3, dated November 4, 2021. Rather, I have two OCF-3s before me that were completed on November 19, 2020 and November 20, 2020. As such, it appears that this OCF-3, dated November 4, 2021, does not fall under s. 36 because it is not the first OCF-3. Thus, I find that he is not entitled to the payment for the completion of the OCF-3.
27Having found that the applicant sustained a predominantly minor injury, it follows that he is subject to the MIG and the $3,500.00 funding limit on treatment. Therefore, an analysis of whether the disputed OCF-18s are reasonable and necessary is not required.
The applicant is not entitled to IRBs
28I find that the applicant has not met his burden to prove his entitlement to IRBs.
29Entitlement to an IRB is set out in sections 5 and 6 of the Schedule. Section 5(1)1(i) provides that the benefit is payable if the insured person was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment. Section 6(1) provides that the benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his employment or self-employment.
30Section 6(2) provides that the benefit is only payable after 104 weeks of disability if, as a result of the accident, the person suffers a complete inability to engage in any employment or self-employment for which he is reasonably suited by education, training or experience.
31The applicant has not met his burden to prove his entitlement to IRBs. The applicant’s submissions provide a description of the accident, and a summary of some medical evidence. The applicant provided no submissions on his previous employment, and whether or how he was substantially unable to perform the essential tasks of his pre-accident employment as a result of the accident. Further, there is no reference to the legal framework that sets out the criteria needed to prove that he meets the pre-104 IRB test. The applicant must direct the Tribunal to the relevant evidence in support of his case and explain why he meets the test for IRB. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make his case.
32Meanwhile, the respondent argues that the applicant has failed to demonstrate entitlement to IRBs. It argues that the CNRs of Dr. Chan demonstrate that the applicant returned to work as of December 2020. It further argues that it contacted the applicant’s employer who confirmed that the applicant returned to work after the accident and last worked on January 14, 2021. Lastly, it argues that the applicant stopped working as of January 14, 2021 due to an injury not related to the accident.
33Despite the fact that the submissions of the applicant are virtually devoid of any legal argument, I have considered the evidence provided. I find that the applicant has fallen well short of meeting his burden.
34First, the applicant provided no submissions on what the essential tasks of his employment were and why he was substantially unable to perform these tasks, which is the test for pre-104 IRBs. In a similar vein, the applicant did not address what employment he is reasonably suited for or why he suffers a complete inability to perform this employment.
35Second, the evidence before me indicates that the applicant returned to work prior to being involved in the bicycle accident in January 2021 on full time duties and hours. Indeed, in the CNR of December 21, 2020, the applicant reported to Dr. Chan that he was ready to return to work on a full time basis with full duties. As a result, Dr. Chan completed a note which stated that the applicant was fit to return to his work on a full time basis with regular duties as of December 28, 2020. Similarly, in correspondence dated March 24, 2021, the respondent noted that it had spoken to the applicant’s employer who confirmed that he had returned to work following the accident, and his last day was January 14, 2021.
36I also find that the applicant was off work from January 2021 to August of 2021 due to injuries unrelated to the car accident and he is not claiming IRB for this time period. As noted above, the applicant was involved in a significant bicycle accident in January of 2021 and sought the medical attention of Drs. Chan and James Rofaiel, orthopaedic surgeon. Moreover, as noted above, in the last entry before the bicycle accident (December 21, 2020), both the applicant and Dr. Chan noted that he was ready to work on a full time basis with his regular duties. Also, the CNRs from both Drs. Chan and Rofaiel from January 2021 to 2023 pertain to injuries sustained from the bicycle accident, and bilateral knee pain/difficulty concentrating, which were discussed above.
37Finally, I find that the applicant returned to work for the time period he is claiming IRBs for and obtained further employment as a landscaper. In the CNR dated August 16, 2021, the applicant discussed his right femur fracture and that he wanted a return to work letter from Dr. Chan. As a result, Dr. Chan completed a return to work letter, where he opined that the applicant could resume regular work duties effective immediately. Significantly, there was no reference to the car accident as being the cause of the applicant not being able to work previously. Rather, the applicant discussed his right femur fracture and that he had full range of motion.
38Subsequently, in the CNRs of February 1, 2022, July 11, 2023, and August 8, 2023, it was noted that he started working as a landscaper and as an auto mechanic apprentice. Therefore, I find that the evidence shows that the applicant was working in two occupations for the time period that he is claiming IRB from.
39In short, I find that the applicant has not met his evidentiary onus to establish entitlement to IRBs because he provided no specific submissions on the legal test, he was off work from January 2021 to August 2021 due to injuries unrelated to the car accident, and in the time period that he is claiming IRB for, he was working in two different occupations.
The applicant is not entitled to interest pursuant to s. 51 of the Schedule
40Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
The applicant is not entitled to an award pursuant to Regulation 664
41The applicant seeks an award and interest under s. 10 of Regulation 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. For conduct to attract a s. 10 award, the conduct must rise above being simply an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”
42As the applicant has been found to have sustained minor injuries and is not entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.
ORDER
43For the reasons outlined above, I find that:
i. The applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
ii. He is not entitled to the treatment plans, nor interest.
iii. The applicant is not entitled to $200.00 for the cost of the completion of the OCF-3.
iv. The applicant is not entitled to IRBs.
v. The respondent is not liable to pay an award.
vi. The application is dismissed.
Released: February 11, 2025
Tanjoyt Deol
Adjudicator