Tribunal File Number: 16-001997/AABS
Case Name: 16-001997 v Aviva Insurance
In the matter of an Application for pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
Y. Y.
Applicant
and
Aviva Insurance
Respondent
DECISION
Adjudicator: Susan Mather
Appearances: Ahmadreza Bazyar, representative for the Applicant
Monica Pathak, counsel for the Respondent
Heard in Writing on: March 9, 2017
OVERVIEW
1Y.Y. (“the applicant”) was involved in an automobile accident on February 1, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The respondent denied the applicant’s claim for an attendant care assessment and medical benefits for chiropractic treatment. The benefits were denied by the respondent because it took the position that the applicant’s injuries are predominantly minor injuries as defined in the Schedule subject to treatment within the Minor Injury Guideline (the “MIG”). Treatment within the MIG is subject to a $3,500.00 limit (“the Cap”) and payment of the benefits would result in treatment costs beyond the Cap limit.
3In the alternative, the respondent takes the position that, even if the applicant did sustain injuries of an extent to take him out of the MIG, the assessment and treatment proposed are not reasonable or necessary.
4The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
5The matter proceeded to a case conference on November 16, 2016 but the parties were unable to resolve the issues in dispute.
ISSUES TO BE DECIDED
6The parties agree that that issues to be decided by this written hearing are:
- Did the applicant sustain an impairment within the meaning of the Schedule as a result of the accident?
- Do the applicant’s injuries fall within the Minor Injury Guideline?
- If the answer to issue two is no: a. Is the applicant entitled to receive a medical benefit in the amount of $1,146.58 for other goods and services of a medical nature, recommended by Integral Health Group, denied by the respondent on April 02, 2015? b. Is the applicant entitled to receive a medical benefit in the amount of $4,008.22 for chiropractic services recommended by Integral Health Group, denied by the respondent on April 2, 2015?
- Is applicant entitled to interest on the overdue payment of benefits?
RESULT
7Based on the of the evidence before me, I find that:
- The applicant sustained an impairment within the meaning of the Schedule as a result of the accident.
- The applicant’s injuries fall within the Minor Injury Guideline as defined under the Schedule.
- Since the answer to issue two is yes: a. The applicant is not entitled to receive a medical benefit in the amount of $1,146.58 for the attendant care assessment recommended by Integral Health Group, denied by the respondent on April 2, 2015? b. The applicant is not entitled to receive a medical benefit in the amount of $ 4, 008.22 for chiropractic services recommended by Integral Health Group, denied by the respondent on April 2, 2015?
- The applicant is not entitled to interest on overdue benefits.
ANALYSIS
1. Did the applicant sustain an impairment within the meaning of the Schedule as a result of the accident?
1I am satisfied that the applicant sustained an impairment within the meaning of the Schedule. The only mention of this issue in the briefs filed by the parties is found in Tab A of the Written Submission of the respondent where in paragraph 3 the respondent states” the applicant did not suffer an impairment within the meaning of the SABs.”
2The term “impairment” is defined in Section 3 of the Schedule to mean “a loss of a psychological, physiological, or anatomical structure or function”.
3Dr. Louis Weisleder assessed the applicant in an Insurer’s Examination (IE) on March 16, 2016. In his report to the respondent dated April 12, 2015.1 Dr. Weisleder was of the opinion that the applicant sustained cervical strain, chest wall, contusion, thoracic strain and lumber strain injuries as a direct result of the motor vehicle accident on Feburary 1, 2015.
4In response to the question “Did the claimant sustain an impairment as a direct result of the motor vehicle accident?” Dr. Weisleder answered that the applicant had an impairment in range of motion of his neck, shoulders, and lower back.
5The respondent has not provided any evidence that would support a finding that the applicant has not met the burden of proof with respect to whether or not the applicant sustained an impairment within the meaning of the Schedule.
2. Applicability of the Minor Injury Guideline
6The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 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 also defined in section 3.
7Section 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 MIG. Section 18(5) provides that medical and rehabilitation benefits payable include all all fees and expenses for conductiing assessments and examinations
8Section 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.
9The burden of proof of establishing entitlement to medical benefits beyond the $3,500 cap for minor injuries rests with the applicant. This burden of proof was confirmed by the Ontario Superior Court of Justice (Divisional Court) in the 2015 case of Lenworth Scarlett v. Belair Insurance Company Inc. 2015 ONSC 3635.
10I am not satisfied that the applicant has met the burden of establishing that he has sustained inuries which entitle him to more than $3,500 in medical benefits.
Injuries Sustained
11According to the documents filed by the parties the applicant was rear-ended in his SUV where he was stopped at a red light. He was seen by his family physician on the day following the accident and was referred for rehabilitation. He was assessed at Integral Health Group on February 4, 2015.
12There is no evidence before me as to the the treatments that the applicant received under the MIG, the amount of benefits paid by the insurer to date or whether the applicant has incurred any out-of-pocket expenses for treatments.
13The applicant does not argue or provide any evidence that the extent of the physical injuries sustained by him in the accident take him out of the MIG.
14In paragraph three of his submissions the applicant submits that his injuries are not predominantly minor in nature because:
- He sustained Chronic Pain and Sleep Disorder
- He sustained “Adjustment Disorder with Mixed Anxiety; Depressed Mood and Specific Phobia (travelling in a vehicle)”
15In paragraph 4 the applicant further submits that he suffers from pre-accident medical conditions that prevent him from reaching maximum recovery in respect of those injuries which that are considered minor if he is subject to the $3,500 limit referred to in the Schedule.
Chronic Pain
16There is insufficient evidence to support a finding that the applicant has Chronic Pain Syndrome.
17For the diagnosis of chronic pain the applicant replies upon the report2 by Dr. Tajedin Y. Getahun, an Orthopaedic Surgeon, dated December 17, 2016 following an assessment done on December 14, 2016. Dr. Getahun’s fellowships are in Adult Hip and Knee Reconstruction and Foot and Ankle Surgery. He is certified in the application of the American Medical Association’s evaluation of permanent impairments.
18Dr. Getahun’s report documents that the applicant complained of back pain, neck pain and left shoulder pain. Dr. Getahun. conducted a physical exam and stated that it was his “impression” that Y.Y’s accident related injuries as a result of the motor vehicle accident are:
- Chronic myofascial strain of the cervical spine and symptoms compatible with left-sided C8 nerve root irritation;
- Chronic myofascial strain of the lumbosacral spine and symptoms compatible with left- sided L5 disc sacral spine herniation.
19Dr. Getahun provides his opinion that the applicant’s injuries do not fall within the MIG because his symptoms have not resolved within the expected time course for uncomplicated soft tissue injuries and are compatible with the development of chronic pain affecting the cervical and lumbar spine.
20The only mention of chronic pain in Dr. Getahun’s report is on page 5 where he states that the applicant’s symptoms are compatible with the development of chronic pain. He does not state that the applicant has chronic pain and he does not make a chronic pain diagnosis.
21The respondent submitted the Tribunal decision in A.P. v. Aviva Canada, Tribunal File Number 16-000045/AABS dated May 30, 2016. In that case the Tribunal found that a statement in a medical report that “cervical facet joint involvement is a common contributor to chronic pain symptom” is not sufficient to support a diagnosis of chronic pain. I agree and find that on the facts before me the statement that “symptoms are compatible with the development of chronic pain” is not sufficient to support a diagnosis of chronic pain.
Sleep Disorder
22There is no evidence before me that the applicant has been diagnosed with a sleep disorder other than the chiropractor’s list in the schedule to the Disability Certificate3. Entering sleep disorder on a Disability Certificate three days after an accident is not in my view sufficient evidence to conclude that the applicant has been diagnosed with a sleep disorder.
Psychological Impairment Arising out of the Accident
23The applicant relies on the December 9, 2016 assessment of Danielle Jeffrey a therapist working under the supervision of Dr. Andrew Shaul, a Registered Psychologist.4 The applicant also relies on the comments by Dr. Getahun in his report5 to establish that the applicant suffered psychological injury from the accident.
24I do not find Dr. Getahun’s comments to be a diagnosis of anxiety and depression arising out of the accident. In my view Dr. Getahun’s is only reporting that the applicant reported to him symptoms of anxiety and depression. I also agree with the submission of the respondent that Dr. Getahun, being an orthopaedic surgeon, is not qualified to make a diagnosis of anxiety and depression in any event.
25I have carefully considered the report of Ms. Jeffrey. She found that the applicant’s overall presentation was consistent with the DSM 5 criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (travelling in a vehicle) .
26Ms. Jeffrey’s report is the only medical evidence before me that could support a finding that the applicant suffered psychological or emotional impairment following the accident to the extent that the applicant’s injuries should no longer be considered predominantly minor.
27The respondent questions the extent to which the report, its diagnosis and underlying results were in fact “supervised by a psychologist”.
28I agree with the reservations of the respondent in that there is no explanation in the report of Ms. Jeffrey’s qualifications, training or experience in administering or interpreting the tests relied upon to reach the diagnoses. There is no indication of the extent of supervision that was provided to Ms. Jeffrey.
29On page one of her report Ms. Jeffrey describes that the purpose of her assessment was to determine the nature of and the extent to which the applicant was suffering from psychological and emotional difficulties as a direct consequence of the accident. On page 8 of the report Ms. Jeffrey provides the opinion that her diagnoses are a direct result of the accident on February 1, 2015. She states that the applicant was reportedly functioning well prior to the accident and that her opinion is based on the fact he had no reported history of emotional or psychological difficulties prior to the accident.
30I am not satisfied that the Ms. Jeffrey’s report is sufficient for the applicant to meet his burden of proof with respect to whether or not his injuries are predominantly minor injuries for the following reasons.
The report was not done until after the case conference and there is no other evidence documenting that the applicant struggled with psychological and emotional issues between the date of the accident on February 1, 2015 and the date of the report in December 2016. While the Disability Certificate6 identified anxiety as an issue three days after the accident I do not find this to be sufficient evidence that the applicant sustained psychological injuries in the accident.
There is no evidence that the applicant has sought medical help for any psychological/emotional issues and no evidence as to why he went for a psychological assessment after the case conference.
The report raises credibility issues for the applicant. Ms. Jeffrey states on page 3 of her report that the applicant rated the severity of his pain from physical injuries he suffered in the accident to be a 9/10. As pointed out by the respondent this level of pain is inconsistent with the mechanics of the accident and the fact that the applicant returned to work as a truck driver a few days after the accident and continues to work.
31I am not satisfied that the applicant sustained injuries as a result of the accident to an extent that they should be treated outside of the MIG. I must now consider if there is compelling evidence that the Applicant suffered from a pre-existing condition that would prevent the applicant from achieving maximum recovery under the MIG.
Pre-existing Conditions
32There is no compelling evidence as required by section 18(2) of the Schedule that the applicant’s health care pracitioner has determined that the the applicant has a pre-existing medical condition that was documented by a health care practitioner before the accident and that will prevent the applicant from achieving maximal recovery from the minor injury if the applicant is subject to the $3,500 limit.
33In his submissions the applicant identifies the pre-existing medical conditions to be “sciatica;Lumbago, Coccydnia, Lumbar strain and intervertebral disorder”. The applicant is relying on the OHIP records7 as the compelling evidence of a health care practitioner that the applicant has a pre-existing condition.
34I agree with the respondent that in this case the OHIP billing summary alone cannot be considered as compelling evidence provided by the applicant’s health care practitioner of a pre-existing condition.
35The fact that the OHIP billing for a visit has a diagnostic code description which includes one or more of the terms used by the applicant in his submission is not compelling evidence, that the applicant had a pre-exisiting condition within the meaning of the “Schedule”.
36I have also considered the two medical reports submitted by the applicant.
37The report of Ms. Jeffries8 states that the applicant reported he was in a previous motor vehicle accident approximately 5 years before the subject accident. He indicated that he had fully recovered from the injuries he sustained.
38The report of Dr. Getahun states that the applicant denied any previous motor vehicle collisions or any previous musculoskeletal complaints.
39The applicant has not provided any evidence that he has a pre-existing condition that takes him out of the MIG.
3. Treatment Plans in Dispute
40Having determined that the applicant sustained an impairment that is predominantly a minor injury there is no need to consider if the two Treatment and Assessment Plans in issue are reasonable and necessary.
4. Interest
41Having found that there are no benefits payable there is no interest owing on overdue benefits.
Released: May 5, 2017
Susan Mather, Vice-Chair