17-003557 v Aviva Insurance Canada, 2017 CanLII 81647

Date: 2017-11-22

Tribunal File Number: 17-003557/AABS

Case Name: 17-003557 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:

Applicant

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

APPEARANCES:

For the Applicant: Dharshika Pathmanathan, Counsel

For the Respondent: Susannah Margison, Counsel

HEARD IN WRITING: October 17, 2017

OVERVIEW

1[The applicant] (“the applicant”) was involved in a motor vehicle accident (“the accident”) on May 25, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (“the Schedule”).

2The applicant applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the “Tribunal”) when the disputed benefits were denied.

ISSUES IN DISPUTE

3The issues to be decided are:

1. Are the injuries sustained by the applicant predominately minor as defined by section 3(1) of the Schedule?

2. Is the applicant entitled to receive a medical benefit in the amount of $4,652.42 for a physiotherapy treatment, recommended by Physio Fix and Fitness in a treatment plan dated August 23, 2016 and denied by the respondent on August 31, 2016?

3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that the applicant’s injuries are predominantly minor as defined by the Schedule and fall within the Minor Injury Guideline² (“the MIG”) because:

(i) They fit the definition of minor injury prescribed by the Schedule; and

(ii) There is no compelling evidence of a pre-existing medical condition that would remove the applicant from the MIG.

5My finding with respect to the applicant’s injuries and classification of those injuries within the MIG mean that she is not entitled to payment of the disputed medical benefit.

6As I have denied the applicant’s claims, no interest is payable to her by the respondent.

ANALYSIS and REASONS

Issue 1 – MIG Determination

7The respondent argues that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore fall within the MIG. The applicant’s position is exactly the opposite.

8I must decide whether the applicant’s injuries are defined as predominantly minor by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine the applicant’s entitlement to the claimed treatment and assessment plans.

9If the respondent’s position is correct, then the applicant is subject to the $3,500.00 limit on benefits prescribed by s. 18(1) of the Schedule and, in turn, any determination of whether the claimed benefits are reasonable and necessary will be unnecessary because the applicant has not argued that any portion of the $3,500.00 maximum benefit remains available for payment if she is in the MIG.

10Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae to such an injury.”³

11The applicant bears the onus to prove her entitlement to accident benefits.⁴

The MIG and Physical Injuries

12The applicant’s physical injuries are consistently reported by all of the medical experts as strains and sprains of the neck and back.

13After reviewing the applicant’s submissions, I agree with the respondent that there is no evidence to support the contention that the applicant’s injuries fall outside the MIG, because:

i. The applicant’s family physician, Dr. Naveen Hanna diagnosed whiplash and prescribed massage and painkillers: the diagnosis and treatment remained unchanged in clinical notes and records (CNRs) from May 26, 2016 to March 31, 2017, except for an addition of whiplash muscle spasm which was recorded as a result of x-rays taken August 6, 2016.

ii. Dr. Hanna ruled out herniated disc after reviewing x-rays in August 2016.

iii. Diagnostic imaging of the applicant’s lumbar spine on August 6, 2016 revealed no abnormality.

iv. Thoracic spine images taken the same day August 6, 2016 showed minimal idiopathic scoliosis “presumably due to muscular spasm”. The applicant submitted no medical evidence of how this condition would take her injuries out of the MIG.

v. An insurer examination (IE) by Dr. Noah Levine on February 24, 2017 produced a diagnosis of soft tissue injury without clinical indications of neurological impairment – and an opinion that the applicant’s injuries fall within the MIG.

vi. Dr. Levine’s addendum report of June 28, 2017, which he wrote after reviewing the applicant’s x-rays, maintained his earlier diagnosis and opinion.

vii. Dr. Hanna’s CNRs provide no support to the applicant’s claim to be suffering from severe headaches. CNRs from Physio Fix and Fitness include only one reference to headache on October 15, 2016 and a notation of significant improvement three days later. No evidence has been produced to establish a causative link between the reported headache and the accident.

The MIG and Pre-Existing Conditions

14The MIG permits an applicant with predominately minor injuries to be exempted from the $3,500 cap on treatment costs if he or she has a medically documented pre-existing condition. The applicant must provide compelling evidence from a health practitioner that he or she will be prevented from achieving maximal recovery if s/he is subject to the cap on treatment costs.⁵

15The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.

16A pre-existing condition will not automatically exclude a person’s impairment from the MIG. The MIG expressly states that exclusions on the basis of pre-existing conditions are expected to be made “in extremely limited circumstances” and that granting such exclusions on any evidence that falls short of the prescribed “compelling standard” is “inconsistent with the intent of the Schedule and the MIG”. It requires “compelling evidence” to be provided using the Treatment and Assessment Plan (“OCF-18”) with attached medical documentation, if any, prepared by a health practitioner.

17It is against this strict standard of interpretation that I find that the applicant has failed to prove her contention that she had pre-existing conditions that would take her outside of the MIG. This is because:

(i) The applicant’s OCF-18 indicates “no” in the section in which the practitioner is to note pre-existing conditions.

(ii) The applicant’s submissions are clear: her thoracic scoliosis was not medically documented before the accident, and the x-ray report of August 6, 2016 includes an opinion that it was presumably caused by muscle spasm, with no indication as to whether or not the condition was caused by the accident or was pre-existing.

(iii) The applicant’s submission on her pre-existing psychological condition of anxiety and depression is also unpersuasive because:

a. In her appeal submission, she describes her problems as brief and “overcome” in 2013;

b. she failed to provide medical documentation of her history of anxiety and depression – a diagnosis is not drawn to my attention;

c. her submission’s references to psychological “yellow flags” that were noted in the Physio Fix and Fitness progress report and treatment plan of August 23, 2016 speak more to a potential for stress-related psychological problems that might arise with no link made to her previous history and no evidence of how likely these problems are to arise.

18Because I have found, on a balance of probabilities, that the applicant’s injuries fall within the MIG, with no pre-existing condition that meets the evidentiary test, it is not necessary for me to determine whether the claimed treatment plan is reasonable and necessary.

INTEREST

19Section 51 of the Schedule prescribes that the insurer must pay interest on overdue payments to insured persons.

20The benefits claimed by the applicant are denied and, therefore, no interest on overdue payments is due.

CONCLUSION

21In considering the evidence raised by the applicant, I find that with respect to the accident, her injuries are limited to those that fall within the MIG.

22The applicant’s claims for medical benefits are not payable, as the amounts claimed fall beyond the cap on benefits payable for predominately minor injuries imposed by s.18 of the Schedule.

23There is no interest due on overdue payments.

Footnotes

1. 1O.Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. issued pursuant to s. 268.3 (1.1) of the Insurance Act, R.S.O. 1990, c. I.8.
3. 3Detailed more fully in the Minor Injury Guideline, Superintendent’s Guideline 01/14, referenced above.
4. 4Scarlett v. Belair, 2015 ONSC 3635, see also Calliste v. State Farm Mutual Insurance Co., 2016 ONSC 1854
5. 5Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.