Licence Appeal Tribunal File Number: 23-004138/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:
Gaetano Marra
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Michael Ferrante, Paralegal
For the Respondent:
Julianne Brimfield, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Gaetano Marra, the applicant, was involved in an automobile accident on December 22, 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, The Co-Operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties agree the MIG limits have not been exhausted.
ISSUES
3The 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 $2,569.25 for chiropractic services, proposed by A Med Physiotherapy and Rehabilitation Inc. in a treatment plan/OCF-18 (“plan”) dated May 17, 2022?
iii. Is the applicant entitled to $2,867.30 for physiotherapy services, proposed by A Med Physiotherapy and Rehabilitation Inc. in a treatment plan dated March 27, 2023?
iv. Is the applicant entitled to $1,146.48 for physiotherapy services, proposed by A Med Physiotherapy and Rehabilitation Inc. in a treatment plan dated August 31, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find the applicant’s injuries are predominantly minor injuries that can be treated within the limits of the MIG. The applicant is not entitled to the treatment plans in dispute.
ANALYSIS
Are the applicant’s injuries predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?
5I find the applicant’s injuries are predominantly minor injuries subject to treatment within the MIG.
6Section 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 of more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
7The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.
8To demonstrate he should be removed from the MIG, the applicant must show he sustained chronic pain with functional impairment that is more than sequelae from his accident-related injuries. The Tribunal has held that chronic pain syndrome, or pain that is a severe, debilitating condition distinct from ongoing or recurring pain, qualifies as chronic pain.
9The applicant submits his injuries are not predominantly minor and relies on the OCF-3 as the corresponding medical evidence.
10The respondent submits the applicant has not provided medical evidence that the applicant’s injuries fall outside of the MIG. The respondent relies on two s. 44 examination reports confirming the issues were soft tissue and within the MIG.
11The applicant relies on the Disability Certificate/OCF-3 that lists injuries as contusion of knee, sprain and strain of knee, cervical spine, shoulder joint, thoracic spine, lumbar spine, sleep disturbance (TBD), anxiety w/driving (TBD). I do not place weight on the OCF-3 as it is well established by this Tribunal that OCF forms on their own are not sufficient to demonstrate entitlement. I find the OCF-3 alone is not sufficient for meeting the onus to establish entitlement to coverage beyond the MIG limits.
12While I am alive to the applicant’s concerns, the applicant’s submissions did not include medical expert reports or supporting materials to corroborate his submissions. The applicant did not provide specific submissions on the grounds for his removal from the MIG, or details of any accident-related impairments. I find the applicant’s injuries are predominantly minor and subject to treatment within the MIG.
13As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
14Although I have found that the applicant’s injuries as a result of the accident fall within the MIG, the applicant raises the argument that the respondent’s denial notices do not comply with s. 38 of the Schedule.
15Section 38(8) of the Schedule requires an insurer to provide an insured person a notice that identifies the goods, services, assessments and examinations described in the treatment plan that the insurer agrees to pay for, any the insurer does not agree to pay for, and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
16If an insurer fails to provide notice that complies with s. 38(8), under s. 38(11)2 it is required to pay for all goods and services described in the treatment plan starting on the 11^th^ business day after the insurer received the treatment plan and ending on the day the insurer gives a proper denial notice.
17The applicant states the respondent’s notice was “boilerplate” and did not provide proper medical reasoning relying on the OCF-1 and OCF-3.
18The respondent states the notice letters reference the injuries, states the injuries are within the MIG, advised the applicant he is within the MIG, and no medical records were provided by the applicant to support the treatment plans.
19I have reviewed the letters from the respondent dated June 29, 2022, September 1, 2022, and April 12, 2023. I agree with the respondent that the letter from September 1, 2022 is not a denial letter but a request for the applicant to submit an invoice to the extended health care benefits provider first in order to be considered. I find the letters dated June 29, 2022 and April 12, 2023 are compliant with s. 38(8) of the Schedule because each letter clearly refers to the applicant’s impairments, the specific treatment plan, whether the diagnosis falls within or outside of the MIG, and provides sufficient reason for the denial. Accordingly, the applicant has not established that the treatment plans in dispute are payable pursuant to s. 38(11).
Interest
20As no benefits are owing, it follows that no interest applies.
ORDER
21The applicant has not demonstrated removal from the MIG is warranted.
22The applicant is not entitled to the treatment plans in dispute.
23The applicant is not entitled to interest.
Released: April 15, 2025
Aric Bhargava
Adjudicator