LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: September 1, 2016

Tribunal File Number: 16-000046/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

K. P. Applicant

and

Aviva Canada Inc. Insurance Company

REASONS FOR DECISION

Order made by: D. Gregory Flude, Vice-Chair

Date of Order: May 30, 2016

Overview

1The Applicant, K. P., was injured in a motor vehicle accident on March 19, 2015. She applied for and received medical and rehabilitation benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2013 (the Schedule).

2Aviva denied K. P.’s claim for medical benefits for physiotherapy and chiropractic treatment. The dispute over the medical benefit centres on the nature and extent of her injuries. K. P. submits that her injuries are extensive and that she is entitled to access a maximum of $50,000 of medical and rehabilitation benefits pursuant to s. 18(3) of the Schedule. Aviva takes the position that her injuries are predominately minor and that s. 18(1) caps medical and rehabilitation benefits at $3,500 for predominantly minor injuries. The $3,500 having been exhausted, Aviva takes the position that it has no further liability to K. P.. The resolution of this matter depends on the sufficiency of the medical evidence put forward by K. P. in support of her position.

Issues:

3The following are the issues in this matter:

1. Did K. P. suffer predominantly minor injuries in the March 19, 2015 motor vehicle accident?
2. If the answer to the above question is no, is Aviva liable to pay $249.95, being the balance payable for physiotherapy treatment to CBI Physiotherapy and Rehabilitation for a treatment plan dated June 17, 2015?

4I find on all of the evidence:

1. that K. P. suffered predominantly minor injuries, and
2. K. P. is not entitled to the payment of the balance of $249.95 for the balance payable for physiotherapy treatment to CBI Physiotherapy and Rehabilitation for a treatment plan dated June 17, 2015.

Minor Injury Guideline:

5To understand the analysis with respect to the minor injury issue, it will be necessary to define some terms. The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are all defined in s. 3. I will refer to these terms collectively as “soft tissue injuries.” S. 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500 minus any amounts paid in respect of an insured person under the Minor Injury Guideline (MIG).

6Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

8In a recent decision, Scarlett v Belair Insurance, 2015 ONSC 3635, the Divisional Court reviewed the minor injury provisions in the Schedule. At issue in that case was whether the minor injury provisions acted as an exclusion from the coverage provided by the Schedule or whether it acted as a limit of liability. This determination was important because the result defined who carried the onus of proof. If the minor injury provisions are a limit of liability, K. P. would carry the onus of proving on a balance of probabilities that the minor injury provisions do not apply to her. If the provisions are exclusionary, then Aviva would carry the onus of proving that the minor injury provisions applied. The Court held that the provisions were a limit of liability not an exclusion. Accordingly, K. P. carries the onus of establishing her entitlement to a higher level of coverage than the $3,500 for minor injuries.

Evidence and Analysis:

9The hearing was in written format. The Applicant submitted the documents she relied on together with written submissions. No witness affidavits were submitted. The Insurance Company submitted only written submissions directed at the onus of proof carried by the Applicant and the sufficiency of the evidence in meeting that onus.

10The documents submitted by the Applicant disclose that the Applicant appears to have a number of conditions and symptoms, which have been listed in her submissions as follows:

calcific tendonosis of the supraspinatous [sic] and infraspinatous [sic] tendons of the left shoulder; impingement syndrome of the shoulder; paresthesia and numbness of the left shoulder; nerve injury; decreased sensation of C6; whiplash associated disorder [WAD 2] with neck pain and musculoskeletal signs; lumbar sprain/strain; radiculopathy of the lumbar region; chronic C/5, TIS and L/5 dysfunction and right hip dysfunction; low back pain radiating to the buttock and thigh; and, tingling in the foot.

11While the above list is extensive, the difficulty faced by me is that there is no medical evidence that either ties any specific condition to the accident, or that indicates that any specific condition or symptom is anything more than a soft tissue injury or a condition arising out of a normal lifestyle that arose independent of the accident. For example, starting with the first listed condition, calcific tendonosis of the supraspinatus and infraspinatus tendons of the left shoulder, I am left to guess what the cause of this condition may be; whether it was in any manner caused by or exacerbated by the accident; or whether it was a pre-existing condition that might inhibit recovery within the MIG limit. Similarly, there is nothing to indicate that “impingement syndrome of the left shoulder” was brought about by or exacerbated by the accident as opposed to a strain arising from overuse of the joint or any other activity of the Applicant.

12I can find no support for the Applicant’s assertion that she has radiculopathy of the lumbar region. The statement relied on by the Applicant with respect to this condition comes from her family doctor, Dr. Barnes. It is dated November 5, 2015 and states that “exam findings are equivocal for radiculopathy.” Prior to November 5, 2015, Dr. Barnes had commented on the possibility of radiculopathy. Following an examination on April 10, 2015, Dr. Barnes noted that there was possible nerve injury but that the dermatomal pattern would not indicate radiculopathy. The Applicant, in her submissions, elevates the wording “equivocal for radiculopathy” to a definitive diagnosis of radiculopathy. I disagree with that interpretation. In my view, the words indicate that Dr. Barnes was unable to make a diagnosis of radiculopathy. This interpretation is consistent with the April 10, 2015 comment that the dermatomal pattern was not consistent with radiculopathy.

13The Applicant asserts that she has “neurological signs and symptoms not consistent with definitions in [the MIG].” While it is not clear what section of the MIG the Applicant is relying on for this submission, it appears to be based on the definition of “whiplash associated disorder.” That definition relates to neck injuries and specifically excludes from the MIG a whiplash injury that exhibits objective, demonstrable, definable and clinically relevant neurological signs.

14Both the MIG and the Applicant are silent on what might be encompassed by the term “neurological signs,” but, given the Applicant’s wording, it would appear that she is making a distinction between neurological signs and neurological symptoms. What that distinction might be is never explained in the Applicant’s evidence or submissions and there are no medical reports to indicate that the Applicant has neurological signs as opposed to symptoms. Indeed, Dr. Barnes April 10, 2015 examination finds only possible sensory nerve injury in the lumbar region, not the neck, and on August 10 she finds “no red flags.” In the absence of evidence that the Applicant has neurological signs, I can find nothing to lift her existing diagnosis of WAD 2 out of the spectrum of soft tissue injuries contemplated by the MIG.

15There is evidence that the Applicant sustained an injury to her left shoulder several years prior to the accident. In January 2012 she fell while snowboarding and dislocated her left shoulder and suffered an undisplaced fracture. The existence of this prior injury was identified by the Applicant’s treating physiotherapist, Kimberly Smalridge, when she submitted the first Treatment Confirmation Form dated April 13, 2015.¹ Ms. Smalridge identified a history of left shoulder trauma. Notwithstanding identifying this issue, Ms. Smalridge asserted that the Applicant’s injuries fall within the MIG.

16On June 17, 2015, Ms. Smalridge submitted a Treatment and Assessment Plan, the form used for treatment in excess of the $3,500.00 limit. In that form Ms. Smalridge again identified the pre-existing shoulder injury. She reaffirms that the Applicant’s injuries fall within the MIG and makes the comment “max 3500 limit.” Calcific tendonosis of the rotator cuff is identified as a condition that has developed since the accident, not prior to it, that acts as a barrier to recovery. The Applicant submits that the information contained in this treatment plan is the requisite proof that her pre-existing condition is acting as a barrier to recovery.

17The test set out in the s. 18(2) of the Schedule is stringent. It states:

the $3,500 limit … does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit or is limited to the goods and services authorized under the Minor Injury Guideline..

18Has the Applicant provided the required compelling evidence? At best, the evidence relied on by the Applicant is equivocal. It is not clear whether Ms. Smalridge is asserting the limit of $3,500.00 is insufficient to achieve the goals of the treatment plan or whether she is of the opinion that she must work within that restriction. There is no further clarification. Clinical notes of unknown authorship written around the same time set “getting out of the MIG” as a weekly goal, but again, no support is provided for that statement. Do these notes refer to a goal of recovery or a suggestion that her injuries fall outside the MIG. They are not explained. Dr. Barnes is silent on the subject. The evidence falls far short of compelling.

Conclusion:

19In light of the foregoing, I find:

1. that K. P. suffered predominantly minor injuries, and
2. K. P. is not entitled to the payment of the balance of $249.95 for the balance payable for physiotherapy treatment to CBI Physiotherapy and Rehabilitation for a treatment plan dated June 17, 2015.

Footnotes

1. 1Dealings between insurance companies and their injured clients are conducted via an exchange of regulatorily approved forms. These forms are called OCF forms and in addition to the OCF prefix each has a number. A Treatment Confirmation Form, OCF-23, is used for accessing treatment under the MIG. Treatment claims outside the MIG are made using a Treatment and Assessment Plan form, OCF-18.