A recent decision by the Financial Services Commission of Ontario reiterates that the onus to prove entitlement to benefits and treatment outside of the Minor Injury Guideline rests with the Insured.
In Lo-Papa v. Certas Direct Insurance Company, FSCO A12-005538 (May 14, 2014), the Insured Applicant was injured in a motor vehicle accident on October 10, 2010. She applied for and received Statutory Accident Benefits from Certas, her accident benefits provider.
Certas paid benefits up to the limits of the Minor Injury Guideline (MIG) cap of $3,500, as provided for under the Statutory Accident Benefits Schedule, and then refused additional funding for treatment plans and assessments beyond the $3,500.
The Applicant however alleged that her injuries entitled her to further funding for a number of treatment plans and assessments because her injuries fell outside the MIG.
The issue was whether the Applicant was subject to the Minor Injury Guideline cap of $3,500. Arbitrator Arbus found that she was. As such, the Applicant was not entitled to funding for the treatment plans and assessments in dispute.
At the Hearing, the Applicant alleged that she suffered from headaches, lower back pain, leg pain, moodiness, anxiousness, and depression. The Applicant relied on the report of Dr. Jacobs, a chronic pain specialist, who stated that the Applicant suffered anxiety and depression since the accident.
In deciding the issue, Arbitrator Arbus reiterated that Section 38 of the Schedule states that in order to show that the MIG does not apply, the Insured must provide a treatment and assessment plan completed and signed by a regulated health professional stating that the Insured Person’s impairment is not predominantly a minor injury. As set out by Director’s Delegate Evans in Scarlett v. Belair, Arbitrator Arbus reiterated that the onus of proof is with the Applicant to establish that the injury falls outside the Minor Injury Guideline.
In this case, it was noted that while Dr. Jacobs’ report opined that the Applicant suffered from lots of anxiety and depression, at no time did he address whether the anxiety and depression were sufficient to remove the injuries she suffered from the Minor Injury Guideline. Arbitrator Arbus also noted that Dr. Jacobs offered no opinion as to whether there was any pre-existing medical condition that might be impeding recovery. Dr. Jacobs did not address the question of whether the impairment was other than predominantly a minor injury, or whether the Applicant’s symptoms were separate and distinct from her soft tissue injury (and not clinically associated sequelae).
Arbitrator Arbus concluded that the burden of proof rests on the Applicant and there was nothing provided by the Applicant which satisfied the test of removing the injuries from being predominantly a minor injury.
Overall, the decision in Lo-Papa is a good one. It reinforces the fact that Arbitrators will not blindly accept unsubstantiated assertions that an Insured should be out of the MIG, there must be compelling evidence in that regard and at the very least, an opinion addressing the requirements of section 38 of the Statutory Accident Benefits Schedule. If an Insured is unable to provide same, they will not meet the burden of proof required under the Schedule.