DECISION
Tribunal File Number: 16-002373/AABS
Case Name: 16-002373 v Aviva Insurance 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:
C. F.
Applicant
And
Aviva Insurance Canada
Respondent
ADJUDICATOR: Avvy Go
APPEARANCES:
Counsel for the Applicant: Meleni David
Counsel for the Respondent: Monica Pathak
HEARD: Written Hearing: March 13, 2017
REASONS FOR DECISION AND ORDER
Overview
The applicant, C.F. was injured in a motor vehicle accident on January 3, 2014. He has applied to the Tribunal for the resolution of a dispute with the respondent insurance company over his entitlement to statutory accident benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
Aviva approved the applicant’s claim for physiotherapy treatment but did not pay the applicant on the basis that collateral benefits were received or available to the applicant through an extended health provider’s program provided by his wife’s former employer. The respondent denied the applicant’s claim for all other benefits on the basis that the claimant’s injures fell within the Minor Injury Guideline (“MIG”).
Issues:
The following are the issues in this matter:
Are the Applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to a treatment cap of $3,500.00 and to treatment the Minor Injury Guideline (the “MIG”)?
Is the Applicant entitled to receive a medical benefit in the amount of $1,165.00 for physiotherapy services, recommended by Ajax Rehabilitation Centre in a treatment plan dated February 18, 2014?
Is the Applicant entitled to interest on any overdue payment of benefits?
I find on all of the evidence:
That C.F. suffered predominantly minor injuries; and
The applicant’s claim for the $1,165.00 for physiotherapy services is dismissed as it was brought after the expiration of the limitation period set out in the Schedule.
Minor Injury Guideline:
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, collectively referred as “soft tissue injuries” in this decision. 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 MIG.
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 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.
In Scarlett v Belair Insurance, 2015 ONSC 3635, the Court held that the minor injury provisions act as a limit to liability under the Schedule, and thus the applicant, C.F. in this case, has the burden of establishing his entitlement to more than minor injury coverage.
Evidence and Analysis
Issue 1: Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
The hearing was in written format. The applicant submitted medical documents as well as written submissions. No witness affidavits were submitted. The respondent submitted written submissions with respect to the onus of proof as required of the applicant and the sufficiency of the evidence in meeting that onus.
The medical reports and other documents submitted by the applicant disclose that the applicant appears to have a number of conditions and symptoms, as listed in his submissions as follows:
The initial OCF-3 of the physiotherapist dated February 10, 2014 noted:
Sprain and strain in the right shoulder;
Sprain and strain in the lower back; and
Sprain and strain in the fourth finger.
Diagnostic report completed on January 14, 2014 made the following findings:
Cervical spine: C5-6 disc space narrowing and marginal osteophyte formation. Mild narrowing of the left 5-6 formen with moderate narrowing of the right C5-6 intervertebral foramen is noted. Impression: degenerative disc disease on C4-C7
Lumber spine: Anterior spurring of the vertebral bodies from L2 to L4 in keeping with mild spondylolytic change. Impression: Spondylolytic changes of the lumber spine present
Right hand: Osteoarthritis of the interphalangeal joint of the thumb and 1st MCP joint with marginal spurring. Impression: Osteoarthritis.
Are the injuries predominantly “minor injuries”?
As noted above, the applicant has the burden of proving that his injuries fall outside of the minor injuries guideline. Specifically, the applicant has the burden of showing that the injuries are not what are commonly known as “soft tissue injuries”.
While the medical reports provided by the applicant list a number of conditions and symptoms that the applicant appears to have, I find that there is no medical evidence that either ties any specific condition to the accident, or 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. Specifically, I find that the conditions as described in the diagnostic report suggest that the conditions were either mild or degenerative in nature.
The applicant visited his family physician 11 times since the accident on the following dates: January 14, January 30, and December 22, 2014, March 9, March 23 and June 15, 2015, January 21, March 8, May 11, May 16, May 20, and July 26, 2016. The medical notes from the family physician, which are at times illegible, do not seem to indicate that the applicant raised any concerns with regard to his conditions arising from the accident since December, 2014. While there was a letter dated April 3, 2014 from the applicant’s family physician stating that the applicant was not taking any medication prior to the injury and that since the accident he was prescribed with several medications, the letter did not address the question of whether the injuries sustained are anything other than soft tissue injuries.
Based on all of the above, I find that the applicant’s injuries as indicated in the medical reports are predominantly minor injuries.
Are there Pre-Existing Conditions?
- The applicant submitted that three to four years prior to the accident, he sustained a workplace injury which resulted in lower back pain, for which he received chiropractic and massage treatment for several months. This could be of relevance to the applicant’s claim as section 18(2) of the Schedule states in part:
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.
The respondent asked the Tribunal to find the applicant’s injuries are predominantly minor. Among other things, the respondent submitted that no health practitioner has provided any compelling, documented evidence that the applicant had any pre-existing condition before the accident and that such condition would prevent him from achieving medical recovery from the minor injury. I agree. Other than a written statement provided by the applicant, I can find no documented medical evidence to substantiate the applicant’s claim about his prior condition or its impact on his post-accident recovery.
The applicant also submitted that he continues to struggle with chronic pain which has affected his ability to return to his pre-accident activities of normal life. Again, my review of the documents fails to yield any medical evidence in support of the applicant’s claim about chronic pain.
The applicant submitted that he has been affected psychologically by the accident. He is afraid to travel on a highway which prevents from taking up any job that requires him to take a highway. No psychiatric assessment or report has been provided by the applicant in this regard, and there is no reference to the applicant’s fear in the medical evidence provided.
Based on the above, I find the applicant has not provided compelling evidence of the presence of any pre-existing condition that will take him out of the minor injuries guideline.
Should the Respondent require the applicant to undergo a s.44 examination?
The applicant submitted that the respondent had failed to advise the applicant of any additional medical information which they required in order to reconsider their initial denial, and failed to require the applicant to undergo an examination under s.44 of the Schedule. The applicant relied on case law to suggest that while the ultimate legal burden of proof remains on the insured person, the secondary, tactical or evidentiary burden can shift between the parties depending on the proposition to be proven.
I am not persuaded by the applicant’s argument in this respect nor do I find the case law or the statute supports his position. As noted above, case law has confirmed that the onus to establish entitlement to a higher level of coverage than the $3,500.00 limit falls on the applicant. Further, the statute does not mandate the insurance company to require an insured person to undergo an examination before denying benefits based on MIG.
Conclusion on Issue 1
- In conclusion, I find the applicant did sustain an impairment within the meaning of the Schedule and the applicant’s injuries are predominantly minor and the applicant has not provided compelling evidence of the presence of any pre-existing condition.
Issue 2: Is the Applicant entitled to receive a medical benefit in the amount of $1,165.00 for physiotherapy services, recommended by Ajax Rehabilitation Centre in a treatment plan dated February 18, 2014?
By a letter dated February 24, 2014, the respondent agreed to pay pre-approved treatment for up to $2,200.00 in treatment from Ajax Rehabilitation Centre. The respondent did not pay the applicant the said amount for the physiotherapy services because at the time the services were rendered the applicant was covered by his wife’s workplace extended health benefits program under Sunlife. The Centre confirmed in an email dated February 7, 2017 to the respondent that there is an outstanding balance of $1,165.00 with respect to the applicant’s treatment.
The respondent submitted that they are not liable to pay for this benefit by virtue of the applicant’s continual failure to provide salient information, namely, information from Sunlife. As such, the respondent submitted that the denial to pay the $1,165.00 is justified by s.33(1)1 and 33(6) of the Schedule and that the issue is statute-barred pursuant to s.55 of the Schedule.
The respondent further submitted that the time period to dispute the sum of $1,165.00 for any unincurred physiotherapy treatment has expired. Section 55.1 of the Schedule states that applications are to be made within the times prescribed by the schedule. Section 56 states that the time limit is two years. The respondent argued that the applicant ought to, but did not submit the application to the Financial Services Commission of Ontario (“FSCO”) within the two year limitation period. The respondent submitted that the two year limitation ended on February 18, 2016, yet the claim was disputed nearly six months after the limitation period had expired by way of an application to this Tribunal dated August 23, 2016.
The applicant did not dispute the February 18, 2016 date or assert any other date for the end of the two year period. Instead, the applicant submitted that it was difficult for him to provide proof of the benefits received from his extended health provider since these benefits were provided by his wife’s employer. Subsequently, the applicant’s wife lost her job in 2015 which made it more difficult to coordinate with Sunlife to get the details of the benefits paid. After many unsuccessful attempts, the applicant’s representative obtained the file from the extended benefits service provider and provided the same to the respondent on October 20, 2016. The applicant also submitted that he had clarified this issue with the respondent over the phone and at mediation on January 5, 2016.
At issue before me is the $1,165.00 which is part of the benefit that the respondent approved on February 24, 2014, but the payment of which was made conditional upon the applicant providing proof that the applicant had not received that benefits from his wife’s employer pursuant to their extended health plan.In support of the non-payment. The respondent cited s.33(1) of the Schedule which requires an applicant to provide, within 10 business days after receiving the insurer’s request, any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. The information in question, namely, confirmation of payment from the applicant’s wife’s extended health provider, was clearly information that was reasonably required to assist the insurer in their decision. While I appreciate that the applicant was unable to provide the information due to circumstances beyond their control, it does not negate their obligation to do so under the law.
It took the applicant two and a half years to provide the information requested by the insurer.
While the applicant did include, as an issue for dispute, the $2200.00 in medical benefits approved but not paid by the insurer on February 24, 2014, the applicant waited until August 23, 2016 to file his application with this Tribunal. As such, the application was filed outside the 2 year limitation period.
In P.C. and State Farm Mutual Insurance (Tribunal File Number 16-000588/AABS), Vice Chair Flude applied the 90 day extension available under the pre-April 1, 2016 appeal process to the post April 1, 2016 appeal process, thereby allowing claimants a 90 day extension from the date that the mediation is deemed to have failed to make an application to this Tribunal. Applying that finding to this case, after the two years period ended the applicant’s 90 day extension would have expired on or around May 24, 2016, about three months before the applicant filed his application with this Tribunal.
In view of the above, I find the applicant has filed his claim after the expiration of the limitation period.
ORDER
- The applicant sustained predominantly minor injuries in the accident. The applicant’s claim for the $1,165.00 for physiotherapy services is dismissed as it was brought after the expiration of the limitation period set out in the Schedule. .
Released: September 11, 2017
Avvy Go, Adjudicator