Licence Appeal Tribunal File Number: 24-004833/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:
Hedley Robert Manuel
Applicant
and
Portage La Prairie Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR: Rebecca Hines
APPEARANCES:
For the Applicant: Nicole E. Walker, Counsel
For the Respondent: Cara L. Boddy, Counsel
HEARD: By way of written submissions
OVERVIEW
1Hedley Robert Manuel, the applicant, was involved in an automobile accident on February 9, 2023, 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, Portage La Prairie 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:
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? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to Chiropractic Services proposed by Mackenzie Medical Rehabilitation Centre in the following treatment plans (“OCF-18s”) i. $3,622.73 dated April 14, 2023; ii. $2,023.03 dated April 21, 2023; iii. $1,857.30 dated November 9, 2023?
Is the applicant entitled to $2,598.61 for a Chronic Pain Assessment, proposed by Prime Health Care Inc in a OCF-18 dated January 26, 2024?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3After reviewing both parties’ submissions and evidence I find:
The applicant sustained a minor injury which is treatable within the MIG.
The applicant is not entitled to the OCF-18s in dispute, interest or an award.
ANALYSIS
The applicant sustained a minor injury which is treatable in the MIG.
4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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 person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on a balance of probabilities that his accident-related impairments fall outside of the MIG.
6The applicant argues that he should be removed from the MIG due to a pre-existing medical condition (chronic pain) which was aggravated by the accident. He also submits that he should be removed from the MIG due to an accident-related diagnosis of spinal stenosis of the cervical spine. He relies on the clinical notes and records (“CNRs”) of his family doctor, treating clinic, an MRI and consult note of Dr. Goldstein dated September 11, 2023. He also relies on a disability certificate (“OCF-3") and OCF-18s which note these pre-accident issues as barriers to recovery and resulted in functional impairments.
7The respondent submits that the applicant sustained a minor injury. It acknowledges that the applicant suffered from chronic pain as a result of an accident which occurred in May 2021. However, it maintains that the post-accident CNRs of the applicant’s family doctor and pain clinic do not mention the February 2023 accident at all or indicate a change in his medical condition. It also asserts that the applicant has not linked his diagnosis of spinal stenosis to the accident. The respondent relies on the insurer examination (“IE”) reports of Dr. Delaney, orthopaedic surgeon dated August 29, 2023, and Dr. Khaled, physician and Dr. Talebizadeh, psychologist both dated May 29, 2024. Dr. Delaney and Dr. Khaled both determined that the applicant sustained soft tissue injuries as a result of the accident which could be treated in the MIG, and that the applicant’s pre-existing medical condition would not prevent maximal medical recovery within the MIG. Further, Dr. Talebizadeh found no evidence of an accident-related psychological impairment.
Pre-existing Medical Condition
8I find that the applicant is not removed from the MIG due to a pre-existing condition for the following reasons.
9First, it is well established law that a pre-existing condition on its own does not remove an individual from the MIG. There must be compelling evidence from a treating practitioner supporting that the pre-existing medical condition will prevent the person from achieving maximal medical recovery within the MIG. In this case, there is no opinion from a treating practitioner that the applicant's pre-existing chronic pain would prevent him from achieving maximal medical recovery in the MIG. As a result, the applicant has not satisfied the test for MIG removal due to a pre-existing medical condition.
10Second, the applicant submits that his pre-existing chronic neck and shoulder pain was exacerbated by the accident or resulted in a new chronic pain condition. I find that the post-accident CNRs of his family doctor and treating clinic do not support his position. For example, the applicant visited his family doctor three times in 2023 and once in 2024 and the subject accident is not mentioned at all and there is no reference to an increase in pain complaints or functional limitations. Nor is there anything in the records of his treating clinic that establish that his condition has gotten worse following the February 2023 accident. In fact, a note a week following the accident states "no acute changes in general health status is reported - patient denies any significant health problems following last injection."
11Third, the applicant relies on an OCF-3 and OCF-18s in support of his position that his accident-related chronic pain has resulted in functional limitations in carrying out his housekeeping and home maintenance tasks or difficulties with prolonged sitting, standing, walking, carrying and lifting. Of note, these were based on the applicant's self-reports, which is vastly different from what he reported to the IE assessors about his function. Further, it is well established that insurance forms on their own is insufficient evidence.
12In contrast, the respondent relies on the IE reports of Dr. Delaney, and Dr. Khaled who opined that the applicant sustained soft tissue injuries which could be treated in the MIG. These doctors also determined that the applicant's pre-existing medical condition would not prevent maximal medical recovery if treated within the MIG. These assessors reviewed medical records and conducted physical examinations which were normal. The applicant also reported to these assessors that he had returned to work with no modifications and to his other daily activities such as carrying out his housekeeping and home maintenance tasks. I accept the opinion of these assessors because they are consistent with the medical record before me.
13For the above-noted reasons, I find the applicant has not proven on a balance of probabilities that he is removed from the MIG as a result of a pre-existing medical condition.
Spinal Stenosis
14I find the applicant is not removed from the MIG due to a diagnosis of spinal stenosis for the following reasons.
15The applicant relies on a consult note of Dr. Goldstein dated September 11, 2023, who diagnosed him with spinal stenosis. Dr. Goldstein's diagnosis was based on the doctor's review of an MRI which showed foraminal narrowing, disc bulging, and canal narrowing of the cervical spine. Of significance, Dr. Goldstein's consult report does not reference the February 2023 accident at all and the note states that the pain has been present for two years, which predated the subject accident. I find the applicant has not linked this diagnosis to accident.
16For the above-noted reasons, I find the applicant has not proven on a balance of probabilities that his diagnosis of spinal stenosis is accident related or that it would fall outside of the MIG.
OCF-18s in Dispute
17The applicant is not entitled to the OCF-18s in dispute because the MIG limits have been exhausted.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.
Award
19The 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. In light of my decision in this matter the applicant is not entitled to an award because I have not determined that any benefits were unreasonably withheld or that there was a delay in payment of same.
ORDER
20For the above-noted reasons, I make the following order:
The applicant sustained a minor injury which is treatable within the MIG.
The applicant is not entitled to the OCF-18s in dispute, interest or an award.
This application is dismissed.
Released: May 1, 2026
Rebecca Hines
Vice-Chair