Tribunal File Number: 16-004395/AABS
Case Name: 16-004395 v Aviva General Insurance
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:
S. B.
Applicant
and
Aviva General Insurance
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Derek Grant
APPEARANCES:
Legal representative for the applicant: Andrej Rondas
Counsel for the respondent: Peter Yoo
HEARD: Written Hearing: April 3, 2017
OVERVIEW
The applicant, (“S.B.”), was injured in a motor vehicle accident on October 3, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
S.B. applied for income replacement benefits (‘IRB’), but was denied.
S.B. also applied for chiropractic treatment. The respondent found S.B.’s injuries were predominantly minor and considered to be within the Minor Injury Guideline (the “MIG”), and he had exhausted the $3,500 statutory limit, he was denied this treatment.
S.B. disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
- The following issues are to be decided:
a. Are the applicant’s injuries predominantly minor as that term is defined in s.3 (1) of the Schedule and, thus, subject to a $3,500.00 treatment limit pursuant to s.18?
b. Is the applicant entitled to receive a medical benefit in the amount of $2,783.60 for physiotherapy treatment, recommended by Midland Wellness Centre in a treatment plan dated August 18, 2015, denied by the respondent on October 19, 2015?
c. ls the applicant entitled to receive an income replacement benefit in the amount of $262.50 per week for the period May 20, 2015 to date, and ongoing?
d. Is the respondent entitled to costs?
RESULT
- Based on the evidence before me, I find that:
a. S.B. sustained predominantly minor injuries as defined under the Schedule;
b. Based on the above finding, S.B. is not entitled to a medical benefit for physiotherapy services by Midland Wellness Centre in the amount of $2,783.60, as detailed in a Treatment and Assessment Plan (OCF-18) dated August 18, 2015.
c. S.B. is not entitled to a weekly income replacement benefit in the amount of $262.50 for the period May 20, 2015 to date and ongoing.
d. The respondent is not entitled to costs.
ANALYSIS
Issue 1: Are the applicant’s injuries classified as “Minor Injuries” and subject to the MIG?
I find that S.B. has not established his injuries are not minor or that he falls outside of the MIG designation.
The 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. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
Section 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 limit. 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 $3,500.
The respondent submitted the decision of Scarlett v. Belair Insurance1. Applying Scarlett, the onus of establishing entitlement beyond the $ 3, 500 limits rests with the applicant.
Injuries Sustained
- On October 15, 2014, Dr. Alan Deokiesingh, Chiropractor, completed a Disability Certificate (OCF-3) with a description of injuries that were the direct cause of the accident:
a. Whiplash associated disorder (WAD2) with complaint of neck pain with musculoskeletal signs
b. Sprain and strain of thoracic spine
c. Sprain and strain of lumbar spine
d. Sprain and strain of sacroiliac joint
e. Muscle strain, lower leg
f. Nonorganic sleep disorders
g. Headache
There is no evidence of any pre-existing condition(s), and having reviewed all of the evidence concerning S.B.’s injuries, I find no evidence that he incurred anything other than soft tissue injuries. S.B. has not provided any compelling objective evidence that his injuries are not minor or that his injuries fall outside the MIG. The OCF-3 does not indicate that S.B. sustained any injuries other than minor injuries.
Based on the $3,501.80($2,201.80 for one treatment plan and a second treatment plan for $1,300.00), approved by the insurer, S.B. takes the position that the approval of those treatment plans “clearly takes him outside of MIG.” This position implies that because the insurance company approved two treatment plans that go slightly above the $3,500 limit that it should automatically take him out of the MIG.
S.B.’s treating physician provided no opinion to indicate the injuries sustained are not minor or that the injuries fall outside the MIG. The insurer’s assessors are also of the opinion that S.B.’s injuries sustained in the accident do not fall outside the MIG.
Based on the evidence before me, I find that S.B. sustained predominately minor injuries, as defined under the Schedule, as a result of the accident.
Dr. Cayen, Orthopaedic Surgeon, compiled a report dated September 30, 2015, which found that S.B. had no pre-existing condition. As such, Dr. Cayen reported that no treatment was warranted outside of the MIG. Dr. Cayen opined, “given the fact that I was not able to appreciate any focal impairment today on physical examination and the fact that he has been going to physiotherapy now for approximately 12 months, I do not believe that any further facility-based treatment is reasonable or necessary at this time. I believe that S.B. should continue his home-based exercise program most days of the week concentrating on functional restoration”.
Issue 2: Is the Applicant entitled to Physiotherapy Treatment?
- Since I have found that S.B. sustained predominately minor injuries as defined under the Schedule and he has exhausted the $3,500 limit under the MIG, the cost of the physiotherapy treatment plan is not payable.
Issue 3: Is the Applicant entitled to Income Replacement Benefits?
The applicant is not entitled to an IRB as he has not properly established entitlement to the benefit as per the Schedule.
Section 5(1) of the Schedule sets out the test for entitlement to IRB. In S.B.’s case, s. 5(1) provides that he is entitled to IRB if, as a result of the accident, he suffers a substantial inability to perform the essential tasks of his pre-accident employment as a convenience store owner.
Dr. Deokiesingh, S.B.’s chiropractor, submitted a disability certificate (“OCF-3”) dated October 15, 2014 that indicated S.B. met the test for IRB and anticipated the disability to last nine to twelve weeks. Other than the disability certificate, S.B. led no further evidence about his inability to work.
Dr. Deokiesingh confirmed that the applicant can return to work on modified hours and/or duties. Dr. Deokiesingh noted that the applicant, as the owner of a convenience store, while hurt, must perform his work duties as there is no one else to cover for him.
S.B. provided the following to the insurer, to support his entitlement to IRBs:
a. On December 4, 2014 Employer's Confirmation (OCF-2) form was provided by the applicant to the insurer together with paystubs and T4 forms from 2012 and 2013.
b. On December 19, 2014 an Election of Income Replacement, Non-Earner or Caregiver Benefit (OCF-10) form was provided electing Income Replacement Benefit.
c. On March 18, 2015, the applicant provided 2013 Notice of Assessment, 2011 and 2012 Tax Summary, 2011 T4, Goods and Services Tax Credit(‘GSTC’), Corporate Profile Report as well as bank statements.
The respondent conducted insurer examinations under s. 44 of the Schedule, to determine whether or not S.B. was entitled to IRB.
On April 28, 2015, Dr. Salerno, Psychologist, conducted a psychology assessment in which he reported that S.B. did not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident.
On April 30, 2015, Dr. Tile, Orthopaedic Surgeon, conducted an orthopaedic assessment in which he stated similar findings to Dr. Salerno, stating he did not find any medical restrictions or limitations. Dr. Tile went on to report S.B. does not suffer a substantial inability to perform his pre-accident employment; he reported that currently he is working full time at his convenience store. I do not believe that he requires any further facility based treatment. He can exercise on his own at home, and he should be followed by his physician.”
S.B. submits that I should accept Dr. Deokiesingh’s determination over the determination of Aviva’s assessors; however, timing is essential here, and S.B. provides no other evidence other than the initial OCF-3. The OCF-3 followed the first 9 to 12 weeks after the accident and I have no updated OCF-3 to indicate the initial estimate was incorrect.
The respondent submits that Dr. Deokiesingh simply made an indication on a form and has provided no further support for his methodology or conclusions. The respondent’s assessors, on the other hand, have provided detailed reports, 6 months after the accident, on both their methodology and their conclusions that is unchallenged by anything submitted by S.B. I prefer Aviva’s evidence. The evidence before me overwhelmingly supports the conclusion that S.B. was able to perform the essential tasks of his employment, based on the evidence provided by the respondent.
Issue 4: Is the Respondent entitled to Costs?
- The issue of costs was not listed in the July 27, 2016 Case Conference Order. Notwithstanding this, the respondent claimed for costs. Costs, under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, are an exceptional remedy. There must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding. The respondent has not provided evidence in this regard and the costs claim is dismissed.
CONCLUSION
For the reasons outlined above, I find that:
The applicant sustained predominately minor injuries as defined under the Schedule. This means that his coverage of medical benefits is limited to $3,500.00.
As his injuries are described as minor and thus fall within the ‘Minor Injuries Guideline’, and since that amount has been exhausted, the applicant is not entitled to receive a medical benefit in the amount of $2,783.60 for physiotherapy treatment, recommended by Midland Wellness Centre in a treatment plan dated August 18, 2015.
The applicant is not entitled to receive a weekly income replacement benefit in the amount of $262.50 per week for the period May 20, 2015 to date, and ongoing because I am not persuaded by the evidence showing an inability to return to work.
The claim for costs is dismissed.
Released: May 15, 2017
Derek Grant, Adjudicator
Footnotes
- Scarlett v Belair Insurance, 2015 ONSC 3635.