Tribunal File Number: 16-004175/AABS
Case Name: 16-004175 v Aviva Insurance Canada
In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
J. D.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
For the Applicant: John Trinca, Counsel
For the Respondent: David Koots, Counsel
HEARD: Written Hearing : July 11, 2017
OVERVIEW
1The applicant was injured in a motor vehicle accident on June 25, 2014. She applied for accidents benefits from Aviva Insurance Company of Canada (“Aviva”).
2Benefits were paid up to the maximum allowed, under the Minor Injury Guideline (“MIG”).
3The applicant is seeking benefits beyond the MIG on the basis that she had a pre-existing medical condition.
4The parties were unable to resolve their dispute at a case conference hearing held on February 1, 2017.
ISSUES IN DISPUTE:
The issues in dispute were identified and agreed to at the case conference hearing as follows:
5Is the applicant entitled to the cost of an in-home assessment outlined in a treatment plan dated November 8, 2014 by Lindsey Vynckier in the amount of $1,426.89?
6Is the applicant entitled to a medical benefit outlined in a physiotherapy treatment plan dated January 19, 2015 in the amount of $1,860.68?
7Did the applicant sustain predominately minor injuries as defined under the Schedule?
RESULTS
8I find that the applicant is not entitled to the cost of an in-home assessment outlined in a treatment plan dated November 8, 2014 by Lindsey Vynckier in the amount of $1,426.89.
9I find that the applicant is not entitled to a medical benefit outlined in a physiotherapy treatment plan dated January 19, 2015 in the amount of $1,860.68.
10I find that the applicant did sustain predominately minor injuries as defined under the Schedule.
THE LAW, EVIDENCE AND ANALYSIS
11The issue that is primary, and on which the claims set out set out in paragraphs [5], [6] above depend, is whether the applicant’ s injuries as a result of the accident are predominantly minor, as defined in the Schedule and thus their treatment is covered under the Minor Injury Guideline(MIG).
THE LAW
Minor injury
12Minor injury is defined in section 3(2) of the SABS 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.
13Section 4 of the Superintendent’s Guideline NO.01/14, elaborates as to what impairments do not come within the Guideline. Compelling evidence must be provided using the Treatment and Assessment Plan (OFC-18) with attached medical documentation if any, prepared by a health practitioner, to show that the person had a pre-existing medical condition before the accident, that will prevent the applicant from achieving maximal recovery from the minor injury, if the applicant is subject to the $3500.00 limit (section 18(1) of the SABS), or is limited to the goods and services authorized under this Guideline.
14The Guideline sets a very high standard for taking any injury outside the MIG by stating the following:
“The existence of any pre-existing condition will not automatically exclude a person’s impairment from this Guideline. It is intended that the vast majority of pre-existing conditions will not do so. “….Only in extreme limited circumstances where compelling evidence provided by a health practitioner before the accident, and that will prevent a person from achieving maximal recovery from the minor injury for the reasons described above, is the person’s impairment to be determined not to come within this Guideline”.1
15The courts have held that the insured has the onus to prove that his or her injuries fall outside of the Guideline.2
Reasonable and Necessary
16A further requirement set out under sections 15(1), 16(1) of the SABS requires all medical and rehabilitation benefits to be reasonable and necessary, to reduce or eliminate the effects of the disability or facilitate the person’s reintegration into his or her family, the rest of society and the labour market. The expenses have to be incurred before the obligation to pay arises, if the insured has not consented to any payment.
17Section