Case Summary: Julia Lo-Papa v. Certas Direct Insurance Company, FSCO A12-005538

Julia Lo-Papa v. Certas Direct Insurance Company, FSCO A12-005538[i]

FACTS

The Applicant, Ms. Julia Lo-Papa was injured in a motor vehicle accident travelling as belted passenger in her grandmother’s vehicle. Under the Minor Injury Guideline[ii] under the Staturory Accident Benefit Schedule[iii] she received $3,500 as statutory accident benefits towards medical and rehabilitation expenses from the Respondent Certas Insurance Company. The Applicant claimed that she was entitled to more funding for her treatment plans as her injuries fall outside the MIG Cap of $3,500. As parties were unable to resolve their dispute through meditation, the Applicant applied for arbitration at the Financial Service Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8.

ISSUSES

  1. Is the Applicant subject to the Minor Injury Guideline Cap of $3,500?
  2. If the answer to the first question is in the negative, is the Applicant entitled to funding for the treatment plans and assessments in dispute?

LAW

  • Insurance Act, R.S.O. 1990, c.I.8.
  • The Statutory Accident Benefits Schedule, Ontario Regulation 34/10.
  • Minor Injury Guideline[iv].

ANALYSIS

The parties provided to the tribunal an agreed statement of facts and joint document brief. Both the parties for the purpose of evidence relied on the report of specialist doctors. The Applicant doctors report stated that she suffered from anxiety and depression since the accident and the Respondent’s stated that she suffered from minor injury.

The onus of the proof was on the applicant that the injury fall outside the MIG. The court relied on the decision of Scarlett v. Belair[v] to state that burden of proof is always on insured to prove that he or she fits within scope of coverage.

The court relied on definition of minor injury as provided in s. 3(1) of  Schedule, i.e. a minor injury means 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. Further s. 18(1) of schedule provides that an insured can recover up to 3,500 for minor injury but s. 18(2) of schedule provides there can be an exception based on compelling evidence.

The tribunal relied on the report of doctors of the Applicant and Respondent. The tribunal stated that the Applicant’s doctor report doesn’t provide whether the Applicants suffers from lots of anxiety and depression to remove the injuries from the MIG and also offered no opinion that there is a pre-existing medical condition that might be impeding recovery. The Respondent’s doctor’s report provided that the Applicant only suffered from minor injury as a result of accident and can be treated within the $3,500 cap provided in guidelines.

The tribunal also relied on s. 38 of schedule and stated in order to prove that MIG doesn’t apply, the applicant should provide a treatment and assessment plan from a regulated health professional stating that the Applicant’s injury is not a minor injury.

CONCLUSION

According to the tribunal the burden was on the Applicant to prove that his injury was not a minor injury falling outside the MIG. The Applicant failed to satisfy the test to remove injuries from the MIG and for the same reason subject to MIG cap of $3,500. As the Applicant failed to prove first issue the tribunal didn’t dealt with the second issue.

SIGNIFICANCE

The case is significant as it provides that the burden always rest on the Applicant to prove that the injury falls outside the MIG cap and to prove that the insured should provide a treatment an assessment plan from a regulated health professional that the insured’s injury isn’t a minor injury or should have other compelling evidence of pre-existing medical condition

[i] Decided by Arbitrator Barry S. Arbus on May 14, 2014.

[ii] Hereinafter referred to as “MAG”.

[iii] Ontario Regulation 34/10, hereinafter referred to as “Schedule”.

[iv] Superintendent’s Guideline No. 2/11 issued pursuant to s. 268.3 of the Insurance Act for the purposes of the Statutory Accident Benefits Schedule. Presently Superintendent’s Guideline No. 01/14 is in force.

[v] Scarlett v. Belair Insurance Co., [2013] O.F.S.C.D. No. 42.

Harkirat Singh Kang is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

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