Citation: Ojugbeli v. The Dominion of Canada General Insurance Company, 2025 ONLAT 24-000910/AABS

Licence Appeal Tribunal File Number: 24-000910/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:

Osagie Ojugbeli

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Adriano Pranzitelli, Counsel

For the Respondent:

Anna Mirski, Counsel

HEARD

By way of written submissions

OVERVIEW

1Osagie Ojugbeli, the applicant, was involved in an automobile accident on April 26, 2022, 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 Dominion of Canada 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:

1. 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?
2. Is the applicant entitled to $282.06 ($1300.00 less $1017.94 approved) for Chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated July 20, 2022?
3. Is the applicant entitled to $2520.00 for a Orthopaedic assessment, proposed by Princeton Hills Medical Assessments in a treatment plan dated November 8, 2022?
4. Is the applicant entitled to $2023.03 for Chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated August 30, 2023?
5. Is the applicant entitled to $1525.84 for Chiropractic treatment, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated October 11, 2023?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

1. The applicant is subject to the MIG and its $3,500.00 funding limit.
2. As the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
3. The applicant is not entitled to an award.
4. As no payments are owing, no interest is due.
5. The application is dismissed.

ANALYSIS

The applicant remains within the MIG

4I find that the applicant’s injuries are predominantly minor, therefore he is subject to the MIG and its $3,500.00 funding limit.

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.”

6An insured 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 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. In all cases, the burden of proof lies with the applicant.

7The applicant submits that he should be removed from the MIG because he has a pre-existing condition, and he has chronic pain as a result of his accident-related injuries.

8The respondent argues that the applicant has not met his onus to prove that his pre-existing condition precludes his recovery within the MIG, or that he is experiencing chronic pain with functional impairment.

Pre-existing condition

9The find that the applicant has not established that he suffers from a pre-existing condition that warrants his removal from the MIG.

10The applicant submits that he should be removed from the MIG because he has scoliosis and a shoulder condition that have worsened as a result of the accident. The applicant relies on the CNRs of his family physicians, Dr. Michael Mak and Dr. Zagros Niakan.

11The respondent counters that the applicant has not met his onus to prove that his pre-existing condition precludes his recovery within the MIG. The respondent relies on the s. 44 insurer examination (“IE”) report dated November 14, 2022, and the paper review dated February 16, 2023, of Dr. Vir B. Sennik, orthopaedic surgeon. In his November 14, 2022 IE report, Dr. Sennik opined that the applicant’s accident-related soft tissue injuries had resolved, and his pre-existing condition did not prevent the applicant from recovery within the MIG.

12I assign little weight to Dr. Sennik’s report, because in his paper review, dated February 16, 2023, Dr. Sennik both acknowledged that the applicant had pre-existing scoliosis and opined repeatedly in answer to a list of questions that the applicant did not have a pre-existing condition. As such, I find that the paper review is internally inconsistent on the central issue of whether the applicant had a pre-existing condition, and inconsistent with Dr. Sennik’s own IE report.

13I accept that the applicant satisfies the first part of the test under s.18(2) because the evidence reveals that the applicant has a documented diagnosis of scoliosis, from three years prior to the accident. The applicant relies on the CNRs of his family physician Dr. Michael Mak, which reveal that the applicant was diagnosed with scoliosis after x-ray imaging on May 29, 2019, and referred to Sick Kids Hospital Spine Clinic, who corroborated the diagnosis on September 12, 2019.

14However, an applicant must also provide “compelling evidence” that the pre-existing condition will “prevent the insured person from achieving maximal recovery from the minor injury” if held to the MIG funding limit. The applicant did not direct me to any medical evidence to establish that his pre-existing conditions would preclude recovery from his accident-related injuries within the MIG to meet the second part of the test.

15As a result, I find that the applicant has not met his onus to prove on a balance of probabilities that he has a pre-existing condition that warrants his removal from the MIG.

Chronic Pain

16I find that the applicant has not established on a balance of probabilities that he has chronic pain with functional impairment as a result of his accident-related injuries.

17The applicant submits that he should be removed from the MIG because he is suffering from “extreme” chronic pain, mobility challenges, and discomfort which “greatly” impacts his daily activities. He argues that he suffered a dislocated shoulder and back pain as a result of the accident.

18The respondent counters that the applicant has not provided sufficient evidence that the applicant is experiencing chronic pain with functional impairment.

19The respondent argues that the applicant has not led any medical evidence that his shoulder problems were a result of the accident. As the respondent notes, the applicant’s shoulder issues were described as an “incidental finding” in the x-rays taken at William Osler Health Centre (Etobicoke Hospital Campus) on the day of the accident, and that Dr. Mak’s CNRs reveal that he referred the applicant to Dr. Abraham Chaiton who opined that the applicant’s shoulder abnormalities were a “developmental defect,” and that the applicant was asymptomatic in his October 28, 2022 report.

20I accept that the applicant experienced some ongoing pain in his back and shoulders after the accident, however, even if I were to agree with the applicant that his shoulder condition was exacerbated by the accident, I am not persuaded that the applicant has established that he experienced chronic pain with functional impairment as a result of his accident-related injuries.

21The evidence reveals that the applicant visited the hospital several hours after the accident complaining of chest pain, and was discharged after x-ray imaging He first complained of neck, back and shoulder pain to his chiropractor at Mackenzie Medical Rehab Inc. at his initial appointment one week later. However, Dr. Mak’s CNRs reveal that the applicant did not complain of pain to his family doctor until June 1, 2022, when he reported chest and back pain, and denied he had shoulder pain. He did not complain of pain to Dr. Mak until ten months later on March 10, 2023, and Dr. Niakan’s CNRs reveal that the applicant complained to him of shoulder pain on August 23, 2023, and back pain on April 4, 2024, which, in my view, indicates periodic rather than chronic pain.

22I further find that applicant has not directed me to any medical or other evidence of functional impairment to support a finding of chronic pain with functional impairment.

23For the reasons above, I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with functional impairment.

24Accordingly, the applicant remains within the MIG,

25As I have found that the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

27The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

28The applicant did not make any submissions or direct me to any evidence with respect to an award. As such, I find that the applicant has not met his onus to prove on a balance of probabilities that he is entitled to an award.

ORDER

29I find that:

1. The applicant is subject to the MIG and its $3,500.00 funding limit.
2. As the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
3. The applicant is not entitled to an award.
4. As no payments are owing, no interest is due.
5. The application is dismissed.