Tribunal File Number: 16-001387/AABS
Case Name: 16-001387 v Aviva Insurance Company of Canada
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:
L. C.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant: L.C.
Counsel for the Applicant: Robert Kostyniuk
Counsel for the Respondent: Michal Baura
HEARD: Licence Appeal Tribunal: December 19, 2016
REASONS FOR DECISION AND ORDER
Overview
The applicant was injured in a motor vehicle accident on June 13, 2012. He has applied for a number of medical and rehabilitation benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The respondent has denied the benefits, taking the position that the applicant’s injuries are predominantly minor in nature and, pursuant to the Schedule, subject to a cap of $3,500.00 for medical and rehabilitation benefits.
Notwithstanding that the applicant claims for a number of treatment plans, with the exception of a claim for Shiatsu massage which the respondent argued had never been submitted, the respondent chose not to address whether any individual treatment was reasonable and necessary. It took the position that the applicant had suffered predominantly minor injuries and that the maximum payable for medical and rehabilitation benefits is capped by the Schedule at $3,500.00. That amount having been exhausted, the respondent takes the position that the applicant is not entitled to payment for any further medical and rehabilitation benefits.
In light of the respondent’s position, I will not consider the individual treatment plans. The focus will be on the scope of the applicant’s injuries. After reviewing and considering the evidence, I agree that the applicant has suffered predominantly minor injuries. As such, I do not need to consider the individual treatment plans.
ISSUES IN DISPUTE
- The following issues are in dispute:
a. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a cap of $3,500.00 for medical and rehabilitation benefits?
b. Is the applicant entitled to receive a medical benefit in the amount of $3,407.24 for chiropractic services recommended by Dr. Anita Bongers of Natural Touch Rehab in a treatment plan dated April 14, 2014 denied by the respondent on May 15, 2014?
c. Is the applicant entitled to receive a medical benefit in the amount of $1,800.00 for a customized back brace recommended by Natural Touch Rehab in a treatment plan dated July 31, 2014 denied by the respondent on May 8, 2015?
d. Is the applicant entitled to receive a medical benefit in the amount of $4,732.00 for medical services recommended by Natural Touch Rehab in a treatment plan dated February 20, 2015 denied by the respondent on May 15, 2015?
e. Is the applicant entitled to payments for the cost of examinations in the amount of $2,369.01 for a chronic pain assessment, recommended by Natural Touch Rehab in a treatment plan dated February 20, 2015 denied by the respondent on May 8, 2015?
f. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for an orthopaedic assessment, recommended by Medic-Assess in a treatment plan dated February 20, 2015 denied by the respondent on May 8, 2015?
g. Is the applicant entitled to receive a medical benefit in the amount of $2,303.57 for shiatsu services recommended by the Shiatsu Acupuncture Centre in a treatment plan dated September 2, 2015 denied by the respondent on October 2, 2015?
h. Is the applicant entitled to payments of $641.25 for the cost of completion of an OCF-18 by Dr. Anita Bongers of Natural Touch Rehab?
i. Is the applicant entitled to interest on any overdue payment of benefits?
Analysis
Section 3 of the Schedule defines a minor injury as “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.” S. 18 (1) caps recovery for predominantly minor injuries at $3,500.00. Treatment for minor injuries follows a treatment framework set out in a document called the Minor Injury Guideline (MIG).1 As a result people with minor injuries are often referred to as being in the MIG.
The impact of the definition of minor injury and s. 18 (1) is to create a regulatory scheme where the focus is on the nature of the injuries sustained and not on the consequences to any given applicant arising out of the injuries sustained. Where a person’s injuries fall within the definition of “minor injury”, the limit of liability can only be exceeded if a healthcare practitioner provides compelling evidence that the applicant has a pre-existing condition documented by a healthcare practitioner prior to the accident that will prevent the applicant from achieving maximal recovery within the $3,500.00 guideline.
The applicant was injured in June 2012. In July 2012 he attended at the Natural Touch Rehabilitation Centre and was treated by Dr. Anita Bongers. Natural Touch identified: “cervical and lumbar spine strain, sprain, left shoulder strain, sprain, left elbow strain, sprain” and “other strain and sprain of the cervical spine.”2 The applicant underwent chiropractic treatment, including interferential current, cold packs, massage and mobilization techniques.
He continued to have back pain, so in May 2014 Dr. Oral Okem of Natural Touch recommended an MRI. The applicant’s family doctor made the necessary arrangements and an MRI of his lumbosacral spine was carried out on July 17, 2014. The MRI identified multi-level degenerative changes in his lumbar spine with signs of disc bulging and possible nerve root impingement.3
On March 11, 2015 Natural Touch filed a report with the respondent entitled Minor Injury Guideline Exemption Assessment & Report recommending that the applicant receive treatment above the $3,500.00 limit. The report concludes: “Multi-level lumbar degenerative changes with nerve root compression causing radiculopathy and chronic pain….Chronic pain and radiculopathy are both conditions that would fall outside the MIG due to the length of time required to resolve and the fact there is neurological compromise.”4
The applicant has asserted that his degenerative spine condition is a pre-existing condition that would entitle him to treatment above the $3,500.00 cap. I address the medical aspects of his degenerative spine condition below, but for the purposes of the pre-existing condition test, I note that it was not diagnosed until three years after the accident and, therefore, fails on that part of the test that requires the pre-existing condition to have been identified by a healthcare practitioner prior to the accident.
One of the two investigative steps the report recommends is: “Orthopaedic Evaluation to determine extent of lumbar disc injuries (radiculopathy) as well as future treatment and prognosis.” The applicant arranged for and attended an orthopaedic evaluation on May 9, 2016. The evaluation was conducted by Dr. Edward English, an orthopaedic surgeon.
Dr. English issued his report on June 1, 2016. After reviewing the applicant’s symptoms and, particularly the degenerative back problems, Dr. English finds that the applicant has soft tissue symptoms of pain and states: “I do not feel that his continuing back problems are related to his injuries from this accident.”5 He then ties the degenerative condition to the applicant’s employment and states: “The motor vehicle accident has made it apparent to him that he does have a limitation, but I do not feel that the continuing problems that he has now are related directly to this accident.”
Dr. Bongers is no longer with Natural Touch but Dr. Okem testified. It is his opinion that the applicant’s radiculopathy is sufficient to render his injuries more than minor. He disagrees with the findings of Dr. English. The essential difference between Dr. English and the strong stance taken by Dr. Okem, is one of causation. Dr. English identifies the source of the radiculopathy as the degenerative condition of the applicant’s spine resulting from manual labour. Dr. Okem assumes, without providing supporting evidence, that the radiculopathy is a result of the accident. Dr. English has identified the disk degeneration as typical for someone in the applicant’s line of work. I prefer the evidence of Dr. English to that of Dr. Okem.
In summary, the applicant’s evidence contradicts itself. Dr. English asserts that the applicant’s current condition does not result from the accident. Dr. Okem asserts that it does.
I have already stated that I prefer the evidence of Dr. English to that of Dr. Okem. My difficulty with Dr. Okem’s evidence was its conclusionary nature. He assumes that the problems with the applicant’s back, including radiculopathy and disk bulging, result from the accident. He did not address the degenerative nature of the applicant’s condition or distinguish between the degenerative cause of the applicant’s difficulties and trauma caused by the accident. He made a determination that radiculopathy lifts the applicant’s injuries beyond the definition of minor without enquiring into the cause of the radiculopathy. I give his evidence little weight.
Given that the applicant carries the onus of establishing that he is entitled to treatment beyond the $3,500.00 limit, my preference for Dr. English’s evidence concludes my enquiry. I will add that Dr. English’s findings are in agreement with the doctors who conducted independent assessments of the applicant on behalf of the respondent. Therefore, all of the medical evidence, with the exception of Dr. Okem’s, agrees that the applicant suffered predominantly minor injuries.
ORDER
The applicant sustained predominantly minor injuries in the accident and is not entitled to payment of any of the amounts in issue.
Released: February 13, 2017
D. Gregory Flude, Vice-Chair