Licence Appeal Tribunal File Number: 23-007279/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:
Atiba Ralph
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Nicholas Mester, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Atiba Ralph, the applicant, was involved in an automobile accident on August 2, 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 the respondent, Wawanesa Mutual 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:
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 $2,598.83 for medical services, proposed by Humber Civic Care Centre Inc. (“HCCCI”) in a treatment plan dated February 17, 2022?
iii. Is the applicant entitled to $2,816.57 ($3,024.62 less $208.05 approved) for medical services, proposed by HCCCI in a treatment plan dated September 15, 2021?
iv. Is the applicant entitled to $1,995.33 for medical services, proposed by HCCCI in a treatment plan dated April 20, 2021?
v. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not established that his accident-related impairments warrant removal from the MIG;
ii. The applicant is not entitled to the treatment plans in dispute or interest; and
iii. The respondent is not liable to pay an award.
PROCEDURAL ISSUES
Applicant’s submissions exceeding page limits
4The respondent submits that the applicant’s submissions exceed the page limits set out in the Case Conference Report and Order (“CCRO”), which limited initial submissions to 15 pages. It argues that the applicant’s written submissions were nine pages, but that a further 11 pages of submissions were included as a chart in Tab R to the materials. The respondent submits that the submissions contained in Tab R should be struck in their entirety or the Tribunal should attach no weight to them.
5While I agree with the respondent that the CCRO limits submissions to 15 pages, I note the applicant’s submissions that when the comments contained in Tab R were removed from the chart form and formatted as per the CCRO, they totalled only 3.5 pages in length. From my review of Tab R, the bulk of the pages contain excerpts of the respondent’s denial notices. As such, I agree with the applicant that the substantive submissions in Tab R, when added together with the applicant’s formal written hearing submissions did not exceed 15 pages. Accordingly, I will consider Tab R of the applicant’s submissions and deny the respondent’s request to strike or assign no weight to them.
ANALYSIS
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 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.”
7An 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.
8The applicant has not provided any substantive submissions or led medical evidence to establish accident-related impairments warranting removal from the MIG. In his submissions the applicant states that his analysis is focused exclusively on the notice requirements of s. 38(8), s. 38(11) and s. 44(5) of the Schedule. He further argues that under s. 38(11), the respondent is no longer entitled to argue that the MIG applies because it was non-compliant with s. 38(8).
9However, MIG determination is a separate issue from that