Tribunal File Number: 18-005597/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:
J. J. S.
Applicant
And
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Reynold S. Kim, Counsel
For the Respondent:
David E. W. Koots, Counsel
HEARD:
In Writing on February 4, 2019
OVERVIEW
1The applicant was injured in an automobile accident on February 26, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The issues to be decided are as follows:
Did the applicant sustain predominantly minor injuries as defined under the Schedule and subject to a $3,500.00 funding limit as set out in s. 18 of the Schedule?
Is the applicant entitled to a medical benefit in the amount of $330.00 ($2,432.00 less $2,102.00 approved by the respondent) for chiropractic treatment recommended by Dr. D. Cinicolo in a treatment plan dated June 13, 2016?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is unsuccessful on all issues.
BACKGROUND
4The applicant was the driver of a vehicle that was struck from behind. The applicant initiated a claim for accident benefits, reporting predominantly soft tissue injuries and commenced treatment pursuant to the Minor Injury Guideline (“MIG”). The applicant changed treatment facilities prior to exhausting the $3,500.00 funding limit provided by the MIG and submitted a new treatment plan for approval, which is listed as issue 2. The respondent accommodated the change by cancelling the balance of the approved treatment with the first facility and agreed to pay for treatment at the new clinic, subject to the $3,500.00 funding cap.
5The applicant disputes the characterization of the injuries as minor and seeks funding for the balance of the disputed treatment plan.
THE MINOR INJURY GUIDELINE
6There is a monetary limit available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
7If the applicant’s injuries are deemed to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
8The applicant claims previous back and neck fractures are a pre-existing medical condition which precludes recovery within the MIG. The respondent disagrees and submits there is no evidence to indicate the applicant’s previous back and neck fractures would preclude the applicant from recovering within the $3,500.00 funding cap.
9I have reviewed the submissions and evidence and find the applicant has not provided compelling medical evidence of a pre-existing medical condition which would preclude recovery within the funding limit of $3,500.00. My reasons are as follows.
Can factures from a previous accident be considered a pre-existing condition?
10The applicant submits the neck and back fractures suffered in a 2008 motor vehicle accident left the applicant in a vulnerable state at the time of the accident. The respondent disagrees and submits the neck and back fractures cannot be a pre-existing medical condition as the applicant suggests because the fractures are not problematic in the immediate time before the accident and therefore, cannot be an ongoing medical condition, let alone a condition which precludes recovery within the MIG.
11I have reviewed the submissions and the MIG and find the applicant’s vulnerable state from fractures suffered in a previous accident can be considered a pre-existing condition.
12I see no reason to limit what can be considered a pre-existing condition. The term “pre-existing medical condition” is not defined in the MIG. Likewise, the MIG does not address whether the pre-existing medical condition must be symptomatic at the time of the accident.
Does the applicant’s pre-existing condition preclude recovery within the MIG?
13The applicant claims the vulnerability from the fractures suffered in the 2008 accident preclude the applicant from achieving maximal recovery within the $3,500.00 funding limit. The respondent submits the applicant has not provided any compelling evidence the vulnerability has impacted the applicant’s recovery.
14For the following reasons, I agree with the respondent and find the applicant has not provided compelling medical evidence of a pre-existing medical condition which precludes the applicant from achieving maximal medical recovery within the $3,500.00 funding limit.
15The need for compelling medical evidence is derived from section 4 of the MIG which addresses impairments that do not come within the guideline. Section 4 notes a pre-existing medical condition can exempt a person from the MIG in limited circumstances, provided two requirements are satisfied; the pre-existing medical condition prevents the injured from achieving maximal recovery from the minor injury, and the pre-existing medical condition must have been documented by a health practitioner.
16While I accept that the applicant has a documented pre-existing medical condition, I find no compelling evidence the condition will prevent the applicant from achieving maximal recovery if subjected to the funding limit of $3,500.00.
17The applicant provided imaging reports from 2008 and 2009 which confirmed the applicant previously suffered from neck and back fractures but did not provide evidence this would impact the applicant’s recovery in any way. The clinical notes and records (“CNRs”) of Dr. T. Alam, family physician, where legible, document the applicant’s recovery and at no point refer to the 2008 injury affecting the applicant’s recovery from the injuries from the 2016 accident. In fact, Dr. Alam’s CNRs note the applicant had regained full range of motion in the neck by August 2016, suggesting the applicant had substantially recovered from the injuries.
18The applicant also produced a medication record from 2017 and the CNRs of North London Chiropractic Care. Like Dr. Alam’s CNRs, these records do not address the applicant’s pre-existing medical condition or whether the condition would impact recovery.
19Lastly, the disputed treatment plan from North London Chiropractic Care notes the applicant’s pre-existing medical condition will impact recovery. Unfortunately, this single line in the treatment plan, on its own, is not compelling evidence of a pre-existing medical condition which will prevent the applicant from reaching maximal recovery within the MIG funding limit. This is because the treatment plan provides little insight into the condition other than to note the applicant’s pre-existing condition could affect recovery. The treatment plan does not list the applicant’s vulnerability as a barrier to recovery and has no medical documents attached to it to indicate the applicant’s vulnerability affects recovery.
CONCLUSION
20The applicant has a documented pre-existing condition but has not provided any compelling evidence the pre-existing condition will impact the applicant’s recovery if subject to the funding limit of $3,500.00.
21As a result, I find the applicant’s injuries are predominantly minor injuries and the funding limit of $3,500.00 applies. The applicant is not entitled to the balance of the disputed treatment plan because the finding limit has been reached.
Released: July 16, 2019
Brian Norris
Adjudicator