Licence Appeal Tribunal File Number: 22-005800/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:
Milton Robalino
Applicant
and
TD General Insurance
Respondent
AMENDED DECISION
ADJUDICATOR: Kieffer Norton
APPEARANCES:
For the Applicant: Wagas Amjad, Paralegal
For the Respondent: Nicole De Bartolo, Counsel
HEARD: In Writing
OVERVIEW
1Milton Robalino, the applicant, was involved in an automobile accident on May 3, 2021, 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, Aviva Insurance Company of Canada 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 a minor injury as defined in Section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline and the $3,500.00 funding limit for minor injuries?
ii. Is the applicant entitled to a medical benefit in the amount of $2,460.00 for a Psych Assessment, by Complete Rehab Center in a treatment plan/OCF-18 dated Jan 13 ,2022?
iii. Is the applicant entitled to a medical benefit in the amount of $2200 for a Social Worker Assessment proposed by Iscope Concussion and Pain centres in a treatment plan/OCF-18 (“plan”), Submitted may 31 ,2022?
iv. Is the respondent liable to pay an award under s.10 of O. Reg. 664 because it unreasonably withheld or delayed Payments to the applicant?
v. Is the applicant entitled to interest on any overdue payments?
RESULT
3I find that the applicant’s injuries fall within the Minor Injury Guideline. Therefore the application is dismissed.
ANALYSIS
Are the applicant’s injuries predominantly a minor injury as defined in Section 3 of the schedule?
4Section 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.”
5An 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.
6The burden is on the applicant to demonstrate on a balance of probabilities that their injuries fall outside of the MIG.
7The applicant submits that they have pre-existing conditions that would warrant removal from the MIG.
8The applicant also submits that they suffered a psychological impairment as result of the accident that would warrant removal from the MIG.
Does the applicant have pre-existing injuries that warrant removal from the MIG?
9I find that on a balance of probabilities that the applicant is suffering from predominantly minor injuries.
10The applicant relies on the records of Dr. Saleem. These records indicate that the applicant attended Dr. Saleem’s practice on May 22, 2021. The applicant reported that he had blurry vision, PTSD, flashbacks, ringing in his ears and pain in his head.
11The applicant also relies on the disability certificate dated July 27, 2021 from V Care Rehabilitation centre that states the applicant’s injuries as sprain, strain of the cervical spine, strain of the thoracic spine, strain of the lumbar spine, radiculopathy, and muscle strain of the shoulder and lower leg. It was also noted that he was suffering non-organic sleep disorder and anxiety disorder.
12The applicant submits that they should be removed from the Minor Injury Guideline due to the presence of the pre-existing conditions and the diagnosed psychological impairments, as they would not be able to achieve maximal medical recovery (MMR) under the Guideline’s limits.
13The applicant argues their pre-collision history is significant, providing an ultrasound from October 24, 2020 showing “Bicompartmental mild osteoarthritis and chondromalacia patella”.
14In 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 prevent maximal medical recovery under the MIG or that they sustained psychological impairment from the accident.
15I find there is insufficient evidence explaining that the applicant’s pre-existing physical conditions would warrant removal from the MIG.
16I find the CNRs generalization of “back injury” lacks the necessary details to establish a pre-existing condition. The x-rays on the left knee I find to be compelling in that they state no tear was detected, but the knee exhibits symptoms of a mild sprain. A sprain is defined as being under the MIG.
17I find the applicant’s physical injuries to be predominantly minor as per the injuries listed in the applicants OCF-18.
Does the applicant suffer psychological injuries that warrant removal from the MIG?
18I find that the applicant has not provided me with persuasive evidence to demonstrate that their alleged psychological impairments justify removal from the MIG.
19I find that the OCF-18 on its own is not persuasive enough to determine psychological impairment as it is lacks substantial determinations that an examination would offer.
20I find the psychological assessment of Dr. Naisi dated February 10, 2022 to be compelling, in the report Dr. Naisi opined that the applicant meets the criteria for having a major depressive disorder and that applicant’s injuries are not to be considered minor. Dr. Naisi opines the Applicant should receive 12, 60 minute sessions of psychotherapy on a weekly basis.
21The respondent argues that the applicant is not suffering from any psychological disorders.
22The respondent provides the reports of Dr. Miller who administered the s.44 examination of the applicant. In the report Dr. Miller opines that that the applicant over reported his physical complaints and that he embellished his psychiatric problems. Dr. Miller goes on to state that from her examination that the applicant is not psychologically impaired.
23I find the reports of Dr. Miller to be compelling, their opinions are in line with the applicant’s family doctor who did not reference any physical injury or psychological disorders immediately following the MVA.
24The assessments of Dr. Yufe and Dr. Fung, in a multidisciplinary report conducted on May 5, 2022, concluded that the applicant is suffering from injuries that are within the MIG. Dr. Fung opined that the current assessment “did not yield objective evidence of any psychological condition as a direct consequence of the index accident”.
25I find the respondent’s evidence to be more thorough and compelling than the applicant’s regarding the psychological condition of the applicant as Dr. Miller’s Assessment is corroborated by the assessment of Dr. Fung that the applicant’s actions post accident are not indicative of someone suffering a psychological condition.
26I find the applicant has not proven on a balance of probabilities that they are suffering from a psychological disorder that would warrant removal from the MIG.
Interest and Award
27Given that no benefits are overdue, the applicant is not entitled to interest. As no benefits have been unreasonably withheld or delayed, no award is payable.
ORDER
28The 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 OCF-18s in dispute are not payable; and
iii. The applicant is not entitled to interest or an award.
iv. The application is dismissed.
Released: March 7, 2025
Kieffer Norton
Adjudicator