Tribunal File Number: 16-002397/AABS
Case Name: 16-002397 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:
K. L.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Jeffrey Shapiro
APPEARANCES:
For the Applicant: Maka Metreveli, Licenced Paralegal
For the Respondent: Elka Dadmand, Counsel
Heard In Writing: March 22, 2017
REASONS FOR DECISION AND ORDER
Overview
The applicant (“Mr. L”) was injured in a motor vehicle accident on February 19, 2014 (“the accident”). He received benefits under a motor vehicle insurance policy issued by the respondent (“the Insurer”) governed by the Schedule.1 This is Mr. L’s Appeal to the Licence Appeal Tribunal (the “Tribunal”) for a ruling that he is entitled to benefits that the Insurer has denied.
Mr. L requests that the Tribunal (1) find his injuries are not subject to a $3,500 policy limit that applies to injuries defined by the Schedule as “minor injuries,” a limitation commonly referred to as “within the Minor Injury Guideline” or “MIG”, and (2) approve five denied Treatment and Assessment Plans (“OCF-18s,” “treatment plans” or “plans”), all of which recommend chiropractic treatment.
Both parties agree that Mr. L sustained at least soft tissue injuries to the neck and back, and possibly shoulder, which are defined as minor and “within the MIG”. The dispute centers on whether a compression fracture revealed in a January 14, 2016 x-ray – roughly 2 years after the accident – accounts for Mr. L’s pain and is related to the accident. The Insurer does not dispute that if related it would remove Mr. L from the MIG, but does not agree it would entitle him to the requested treatment.
Evidence was presented in writing, consisting of medical reports and records. Mr. L relies primarily on the records of his family doctor, Dr. Alexander, an x-ray report showing a compression fracture, and a medical article. The Insurer relies on 6 reports from Independent Examinations (“IEs”) performed by 3 assessors – Dr. Getsos (chiropractor), Dr. Sekyi-Out (orthopaedic surgeon), and Dr. Lam (physician).
I find that Mr. L has not established on a balance of probabilities that the compression fracture is related to the accident, and thus, he has only established that he sustained predominately soft-tissue injuries which are and remain subject to the $3,500 MIG treatment limit. He is not entitled to a medical benefit for the chiropractic plans.
ISSUES
- The parties agree that the issues in dispute are:
Are Mr. L’s injuries subject to the Minor Injury Guideline?
Is Mr. L entitled to receive payment for a medical benefit for chiropractic treatment from Revive Health Centre, in the amounts as follows:
i. $1,191.56 for a plan dated September 12, 2014;
ii. $1,071.41 for a plan dated December 5, 2014;
iii. $956.81 for a plan dated January 30, 2015;
iv. $956.81 for a plan dated May 5, 2015;2
v. $842.21 for a plan dated June 17, 2015?
- Is Mr. L entitled to interest on the overdue payment of benefits?
BACKGROUND
While the January 14, 2016 x-ray that revealed the compression fracture is a focal point of the parties’ dispute, a review of Mr. L’s treatment, beginning with the accident until the x-ray, is useful to understand the parties’ positions.
Following the February 19, 2014 accident, Mr. L attended hospital where he was discharged the same day with soft tissue injuries.3
Although the exact date is unclear from the submissions, after the accident, Mr. L returned to his work as a general labourer engaging in construction work. Mr. L maintains that while he did return to work, he was not able to work at his usual pre-accident pace and he doesn’t do some of the tasks that he used to do.4
On April 8, 2014 – seven weeks after the accident – Mr. L first saw his family doctor, Dr. Alexander, who prescribed anti-inflammatory medication5 and referred him to Revive Health Centre (“Revive”).6 Mr. L saw Dr. Alexander on May 16, 2014, June 4, 2014 and June 12, 2014. During this period, Dr. Alexander did not order any diagnostic tests, refer Mr. L to OHIP-funded treatment or specialists, or prescribe further medication. A January 8, 2016 visit is addressed below.
From April 8, 2014 to July 7, 2015, Mr. L received chiropractic treatment at Revive.
Mr. L initially received treatment under the MIG and remained in the MIG based on the Insurer’s IE assessments. The Insurer paid $3,087.21 for treatment, mostly, if not all, for chiropractic treatment at Revive.
Revive then submitted a series of six treatment plans (the later five of which are in dispute) starting on July 15, 2014, continuing to June 16, 2015.
Independent Examinations
In response to the treatment plans, the Insurer requested IEs which took place from August 15, 2014 to June 23, 2015, and one on December 12, 2016.
At the first IE exam in August 2014, Dr. Getsos, a chiropractor, found no objective indicators supporting any ongoing injury or impairment. In his September 25, 2014, paper review report, Dr. Getsos came to the same conclusion.
Several months later, orthopedic surgeon Dr. Sekyi-Otu performed the next IEs and issued reports on January 23 and February 20, 2015. During the examination, Mr. L did report pain with various movements, but Dr. Sekyi-Otu found Mr. L described no exacerbation of symptoms and there were “no objective signs of impairment that would prolong or perpetuate his reported symptoms,” nor signs of radiculopathy, yet “[a]t this stage prognosis for complete resolution of symptoms remains fair.” Radiculopathy was indicated in the requested plans. Dr. Sekyi-Otu concluded that the particular December 5, 2014 chiropractic plan he was reviewing was not reasonable and necessary and that there were no objective signs of ongoing impairment. His February 20, 2015 paper review regarding a January 27, 2015 plan came to the same conclusions.
Several months later, on June 23, 2015, Dr. Lam, a physician that specializes in chronic pain management, performed the next IE - a paper review. Based largely on his May 25, 2015 in person assessment, Dr. Lam found that “there was no identified accident related physical or neurological injury or impairment that would necessitate a continued provision of formal facility-based treatment,” and thus the May 5, 2015 plan is not considered reasonable and necessary. Dr. Lam also found that referral to a chronic pain assessment was not indicated. He notes that he found no ongoing accident related physical impairment during the May 2015 examination. (Dr. Lam mentions a December 31, 2014 Occupational Therapy in-home assessment that also did not identify any functional restrictions during the assessment.)
For context, as noted above, treatment with Revive concluded around the time of Dr. Lam’s last assessment, i.e. July 7, 2015, and the last visit to Mr. L’s family doctor occurred approximately a year earlier, i.e. June 2014. There is then a six month gap of treatment until January 8, 2016.
The January 2016 X-Ray
On January 8, 2016 – two years after the accident – Mr. L visited Dr. Alexander with complaints of back pain upon “lifting.” The doctor ordered an x-ray of Mr. L’s lumbar spine. The x-rays were performed and revealed a mild compression of the L2 vertebral body with approximately 20% loss of height anteriorly (“compression fracture”).
Dr. Alexander’s records note that Mr. L had essentially no medical follow-up to the accident and there was no documentation to substantiate his claims. The records do not indicate that Dr. Alexander attributed the x-ray findings to the accident. His notes from January 8, 2016 state in part:
“Pt not attending physiotherapy anymore for the last 3 months. He no longer feels pain, but upon lifting a sheet of drywall the pain reoccurs. He has had essentially no medical follow-up for his car accident.
Pain is in the upper back and lower back upon lifting.
X-rays of the lumbosacral spine reordered. Patient to be seen again in the clinic in 2 weeks time and I will write a note to his insurance company.
There really hasn’t been any documentation to further substantiate his claim at this point in time.
[Signed on 08–Jan–2016 17:03 by Dr. Alex Alexander]
On January 18, 2016, Dr. Alexander recommended therapy and a bone density test to determine if there was bone loss or severe osteoporosis, but that test has not been performed. Importantly, his records attribute ongoing pain to the compression fracture, but not to the accident.
Dr. Sekyi-Otu subsequently issued a December 12, 2016 IE addendum report finding a January 27, 2015 chiropractic plan not reasonable and necessary. Regarding the L2 vertebral fracture, he opines that it cannot be determined if the fracture was caused by the accident. He also opines that assuming it was, it is unlikely it would be an ongoing source of pain as such fractures are stable and typically heal within three months. He also notes that at the time of his in-person examination on January 23, 2015, he could not find any objective signs of impairment that would prolong or perpetuate his reported symptoms.
Law
S. 18(1) of the Schedule limits recovery for medical and rehabilitation benefits to a person “who sustains an impairment that is predominately a minor injury” to $3,500 minus any amounts paid in respect of an insured person under the MIG. 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.” (Emphasis added.) The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3. I will collectively refer to these as “soft tissue injuries”.
An injured person who initially receives treatment within the MIG can, nevertheless, avoid having the $3,500 limit apply. For example, the injured party could establish the injuries are not, or are no longer, defined as soft tissues injuries in s. 18(1).
The insured person bears the onus to prove he or she is out of the MIG, rather than on an insurer to prove that the insured is within it, because the MIG is a limit on liability, rather than an exclusion of benefits. Scarlett v Belair Insurance, 2015 ONSC 3635(Div. Ct.). If the applicant establishes that the MIG does not apply, the applicant must still establish that the medical benefits beyond the $3,500 are “reasonable and necessary”. Ali and Ferozuddin v. Certas, (FSCO A13-002459 and A13-002460, March 23, 2016). The proof must be “on the balance of probabilities.” Ali.
Analysis – Is Mr. L’s compound fracture related to the accident?
Although Mr. L does not state it directly, he essentially argues that his unexplained level of pain following the accident to 2016 was later explained and validated by the discovery of the compression fracture. Thus, he argues, while it was discovered almost 2 years post-accident, the nature of such an injury is that it can go undetected, and is only detected by the presence of back pain.7 Mr. L relies on the online article by Dr. Scott D. Bowden, M.D., “vertebral fracture symptoms.”
Mr. L also argues that no explanation has been provided why it took the Insurer until December 12, 2016 to address the x-ray received on March 2, 2016. I agree that an explanation has not been provided, but that issue is not dispositive in this matter.
The Insurer’s main argument is that the chronology supports the conclusion that the compression fracture is not related to the accident. In support, it relies on the opinion of Dr. Sekyi-Otu and Dr. Bowden’s online article.8
Although I do have concerns that the fracture could be related to the accident and may explain Mr. L’s pain, when considering the evidence as a whole, I find that Mr. L has not met his onus of proof that the fracture is related, for several reasons:
First, Mr. L has not provided a medical opinion clearly stating that the two events are related, and such an opinion is particularly important in this matter where the fracture was discovered two years after the accident.
Second, while Dr. Alexander’s notes appear to be written for clinical, not legal, purposes, they are still nevertheless unclear and appear to cast doubt on the causation. For instance, Dr. Alexander notes that Mr. L “has had essentially no medical follow up,” and “There really hasn’t been any documentation to further substantiate his claim…”
Third, both Dr. Sekyi-Otu and Dr. Bowden are of the opinion that compression fractures typically last for 4 to 6 weeks in an intense phase, and then typically get better over the next few weeks, while for some, pain continues for a few more months. Thus if the fracture was from the February 2014 accident it should have long healed prior to the January 2016 x-ray.
Fourth, the article describes that the typical onset of pain comes from “fairly routine activity that slightly strains or jars the back, such as [lifting, bending or falling]”. Given that Mr. L’s employment during the two years following the accident to the x-ray involved constant lifting and bending, it is difficult to rule out the possibility of an intervening act.
Fifth, from the summer of 2015 to January 2016 when Mr. L appeared in Dr. Alexander’s office, it appears that he was feeling better, again pointing to some additional event occurring.
Sixth, given that during the first year and a half after the accident, Mr. L was seen by his family doctor several times, multiple medical providers at Revive – many of whom were performing hands-on manipulation, and the three IE assessors, there was no evidence of a compound fracture.
Seventh, I note that all three IE assessors concluded that they found no objective evidence to explain ongoing symptoms.
I give the least weight to these last two points (i.e. the sixth and seventh) as there remains some possibility, although unlikely, that the compression fracture – whether from the accident or after – simply went undetected.
Based on the records before me, I find Mr. L sustained myofascial soft tissue injuries to his back and neck and possibly his shoulder. The applicant has not established that the compound fracture is from this accident.
Issue 1: Does the $3,500 MIG limit apply to Mr. L’s claims?
- Based on my findings above that Mr. L has only established that he sustained predominately soft tissue injuries, and those injuries are defined as “minor injuries” under the Schedule, he is subject to the $3,500 MIG limit. The compound fracture has not been established as related to the accident.
Issues 2 (i-v): Is Mr. L entitled to the chiropractic treatment plans?
- Based on my finding that Mr. L is within the MIG, he is not entitled to the chiropractic treatment plans beyond the MIG limit. Additionally, based on the opinions of Dr. Sekyi-Out and Dr. Lam that after receiving facility-based treatment for a year and a half, Mr. L has not established that the requested treatment plans will provide any benefit over self-directed care. I also note that while Dr. Alexander recommended continuing therapy after the compound for fracture, that therapy would not be related to the accident.
Issue 3: Is Mr. L entitled to interest on overdue benefits?
- Based on the above, no benefits are overdue.
ORDER
- Pursuant to the authority vested in this Tribunal under the provisions of the Act, the Tribunal finds:
Mr. L’s injuries are subject to the Minor Injury Guideline.
Mr. L is not entitled to receive payment for a medical benefit for the chiropractic treatment plans from Revive, in the amounts as follows:
i. $1,191.56 for a plan dated September 12, 2014;
ii. $1,071.41 for a plan dated December 5, 2014;
iii. $956.81 for a plan dated January 30, 2015;
iv. $956.81 for a plan dated May 8, 2015;
v. $842.21 for a plan dated June 17, 2015.
- The Applicant is not entitled to interest as no benefits are overdue.
Released: June 20, 2017
___________________________
Jeffrey Shapiro, Adjudicator
Footnotes
- The Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
- This plan was submitted May 8, 2015. The parties’ materials refer to it by both dates.
- See Written Submissions of the Insurer at para 10, and Schedule C, Tab 1 – i.e. the CNRs of Brampton Civic Hospital (“Insurer, para 10”). The first of the three page hospital record is relatively illegible. However it is clear he was discharged the same day.
- See the August 22, 2014 IE Report of Dr. Getsos (Insurer, Schedule C, Tab 4).
- The August 22, 2014 IE Report of Dr. Getsos (Insurer, Schedule C, Tab 4) states that Mr. L attended a walk-in clinic after the accident and received anti-inflammatory medication and painkillers, and was not seen by his family doctor since the accident. No other records mention a walk-in clinic; this may actually be his family doctor.
- The submissions did not address who referred Mr. L to Revive. Revive’s records indicate Mr. L advised he was referred by Dr. Alexander. See Insurer, Schedule C, Tab 10.
- Dr. Alexander's notes mention "ongoing chronic low back pain" in connection with the compression fracture. While certain types of chronic pain have been found to remove an applicant from the MIG, Mr. L has not put forth that argument as the real issue in this case appears to be the compression fracture.
- The Insurer also submits "The Applicant failed to attend a bone density test likely due to concerns that the osteoporosis diagnosis would negatively impact on this litigation." (Underline added.) As I see no basis in the record to determine why the Applicant did not attend the test, I give no weight to this argument. Similarly, the argument that Mr. L initially saw his doctor only four times, and then didn't see him for approximately year and a half, has some relevance, but is mitigated by the fact that he was receiving ongoing care at Revive.```