Lo-Papa v. Certas, FSCO A12-005538

Facts:

Ms. Julia Lo-Papa, the Applicant, was injured in a car accident on October 20, 2010.  The Insurer, Certas Direct Insurance Company, paid her the benefits afforded to her under the Statutory Accident Benefits Schedule.  The Insurer classified her injuries as primarily minor and thus limited her benefits to $3,500, as per the Minor Injury Guideline (MIG) Cap.  The Applicant claims that the injuries she sustained were not primarily minor and require treatment beyond what the $3,500 Cap allows for. The Applicant and Insurer participated in mediation, but were unable reach a settlement.  As a result, the Applicant requested arbitration through the Financial Services Commission of Ontario (FSCO).

 

Issues:

Does the Minor Injury Guideline Cap of $3,500 relate to the Applicant?

If no, is the Applicant eligible to receive monies for the disputed assessments and treatment plans?

 

Law:

In order to exclude the MIG Cap, s. 38(3)(c)(i) of the Statutory Accident Benefits Schedule requires that a treatment and assessment plan must clearly provide:

that the insured person’s impairment is not predominantly a minor injury,

OR

that the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by the health practitioner, the insured person does not come within the Minor Injury Guideline because the insured person has a pre-existing medical condition.

 

Analysis:

The onus is on the Applicant to prove that the Cap does not apply because the injuries sustained fall outside of the MIG.  As stated by Director’s Delegate Evans in Scarlett v. Belair Insurance Company Inc., FSCO A12-001079, “the burden of proof always rests on the insured of proving that he or she fits within the scope of the coverage.” The Applicant submitted a written report by Dr. Howard Jacobs, Chronic Pain Specialist, which stated that she has experienced anxiety and depression since the car accident.  The report did not address these symptoms in relation to the soft tissue injuries she sustained, or whether the Applicant had any pre-existing medical conditions that may be interfering with her recovery.  The report actually failed to mention the MIG at all.  The Applicant submitted no further evidence to support her claim. Arbitrator Arbus concluded that the Applicant did not provide sufficient evidence as required by the Schedule to prove that the MIG Cap did not apply to her; she failed to meet the burden of proof.

 

Conclusion:

The Minor Injury Guideline Cap of $3,500 relates to the Applicant, therefore, she is not eligible to receive monies for the disputed assessments and treatment plans.

 

Farrah Rajan is a Paralegal student at Centennial College in Toronto studying professional communications with Omar Ha-Redeye.

 

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