Licence Appeal Tribunal File Number: 23-010696/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:
Francesco Calleri
Applicant
and
The Dominion of Canada General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Dagmar Boettcher
APPEARANCES:
For the Applicant:
Kartik Arora, Counsel
For the Respondent:
Christopher Deeley, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Francesco Calleri, the applicant, was involved in an automobile accident on November 27, 2018, 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, Insurer, 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 $2,696.00 for chiropractic services, proposed by Markham Pain Clinic in a treatment plan/OCF-18 (“plan”) dated May 29, 2023 and denied June 8, 2023?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not met his burden of demonstrating that his injuries are not predominantly minor as defined in s. 3 of the Schedule and he is therefore subject to treatment within the $3,500.00 MIG limit. The amount remaining within the MIG is $204.00.
4As the applicant remains within the MIG, there is no entitlement to the benefits at issue.
5No interest is payable.
6The application is dismissed.
ANALYSIS
The injuries are predominantly minor and the MIG applies:
7I find that the applicant has not met his burden of demonstrating that his injuries are not predominantly minor as defined in s. 3 of the Schedule and he is therefore subject to treatment within the $3,500.00 MIG limit.
8Section 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.”
9An 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 condition combined with compelling medical evidence stating that the condition precludes recovery if they were 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.
10The applicant submits and relies upon three letters from Dr. James Pascual, Chiropractor with Markham Pain Clinic, dated March 7, 2019, November 28, 2019, and August 18, 2020, to support removal from the MIG.
11The applicant submits that he is not subject to the $3,500.00 MIG limit on benefits due to a diagnosis of Whiplash Associated Disorder 2 with neck pain and musculoskeletal signs, chronic post-traumatic headache, thoracic and lumbar spine sprain/strain and pain in a limb. The applicant submits further that the treatment plan is reasonable and necessary due to the severity of the applicant’s injuries, the possible consequences if denied access to ongoing care, and that the additional treatment will assist