Tribunal File Number: 17-002491/AABS
Case Name: 17-002491 v Aviva Insurance
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:
Jasween Rai
Applicant
and
Aviva Insurance
Respondent
DECISION
Adjudicator: Sandeep Johal
APPEARANCES:
Counsel for the Applicant: Elena Pelz
Counsel for the Respondent: Monica Pathak
Heard in writing on: September 13, 2017
OVERVIEW
1The applicant was injured in an automobile accident on May 28, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for medical benefits that were denied by the respondent because he was placed into the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
3The following are the issues to be decided:
i. Are the applicant’s injuries considered predominantly minor, as defined by the Schedule and as a result, their treatment limited up to a maximum of $3,500.00 by the MIG?
ii. If the answer to issue one is no, then:
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,397.00 for physiotherapy services, recommended in a treatment plan by New Hope Physiotherapy & Rehab Centre, submitted January 6, 2016; and denied by the respondent on February 29, 2016?
iv. Is the applicant entitled to receive a medical benefit in the amount of $1,197.00 for physiotherapy assessment services by New Hope Physiotherapy & Rehab Centre, submitted in a treatment plan April 18, 2016; and denied by the respondent on May 26, 2016?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Based on the totality of the evidence before me, I find:
i. the applicant has predominately minor injuries as defined in the Schedule.
ii. the applicant does not have a pre-existing condition that would prevent recovery under the MIG.
iii. the applicant’s injuries are within the MIG, and it is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest.
ANALYSIS
Applicability of the Minor Injury Guideline
5The 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 sprain, strain, 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, minus any amounts paid in respect of an insured person under the MIG.
6Section 18(2) of the Schedule makes provision for 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 that will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.
7In the decision of Scarlett v. Belair Insurance2, the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.
Did the applicant sustain a predominately minor injury?
8I find that the applicant sustained an impairment that is predominantly a minor injury for the following reasons.
9Both parties’ medical evidence suggests the applicant’s injuries fall within the definition of “minor injury” as listed in section 3(1) of the Schedule and I will summarize the evidence of those injuries below.
10The applicant submits he was diagnosed with sprain and strain-type injuries, including dizziness, giddiness and post-traumatic stress disorder, according to the Disability Certificate (OCF-3). I have not been provided with any submissions or evidence with respect to escaping the MIG as a result of dizziness and giddiness or post-traumatic stress disorder.
11The Treatment and Assessment Plan (OCF-18) for physiotherapy in the amount of $1,397 lists the applicant’s injuries as sprains and strains. Additionally, the applicant’s physiotherapist check-marked the box marked “Yes” in response to the question: “Is this impairment predominately a minor injury as referred to in the Minor Injury Guideline?”
12On June 4 and June 12, 2015, the applicant’s family doctor noted in his clinical notes and records, the injuries to be tenderness, tightness, spasms and strains in the back and neck with normal range of motion. In the clinical notes and records dated September 4, 2015, his family doctor notes that the applicant’s neck and back strain has resolved.
13The respondent sent the applicant to an insurer examination before Dr. Belfon on March 30, 2016. Dr. Belfon conducted a physical evaluation of the applicant for the purpose of assessing the medical and rehabilitation benefits applied for, including the treatment plan dated February 6, 2016 which is in dispute, as well as the applicability of the MIG.
14Dr. Belfon completed a musculoskeletal evaluation and opines that the applicant’s injuries are consistent with sprain and strain injuries of the “lumbosacral spine and resolved sprain/strain of the cervical spine”. It is Dr. Belfon’s opinion that the applicant has reached maximum medical recovery as the examination was done ten months post-accident and further physical therapy and/or formal-based therapy will likely not result in additional objective and sustainable therapeutic benefits when so far removed from the date of loss.
15In the applicant’s submissions, he states he is suffering from chronic back pain and requires ongoing physiotherapy, however I was not provided with or directed to any evidence of a diagnoses of chronic pain syndrome and whether that could possibly take the applicant out of the MIG.
16Since both parties’ doctors diagnosed the applicant with sprain and strain-type injuries, it is my finding that the applicant has injuries that fall within the definition of “minor injury” in accordance with the Schedule.
17Having found the applicant’s injuries to be a “minor injury,” the applicant can still escape the $3,500 MIG treatment limits if he can show a pre-existing medical condition.
Pre-existing Conditions
18In accordance with section 18(2) of the Schedule, the applicant must meet all three of the following requirements in order to escape the MIG under this section:
a) There was a pre-existing medical condition;
b) The pre-existing medical condition was documented by a health practitioner before the accident; and
c) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.
19I find that the applicant has not satisfied his onus and has not met all three requirements in order to be removed from the treatment limits of the MIG.
20The applicant submits that he has a pre-existing condition and has provided medical evidence to show pre-existing back and neck pain from a disc extrusion and disc bulges, with a diagnosis of “degenerative disease with disc herniation” from his family doctor, Dr. Lai. This diagnosis was made in 2010, prior to the current motor vehicle accident. The applicant provided an MRI, an x-ray and his family doctor’s clinical notes and records as evidence of a pre-existing medical condition.
21I accept that there is compelling evidence of a pre-existing medical condition which was documented by a health practitioner prior to the accident. However, the third requirement is missing. I was not provided with evidence that the applicant’s pre-existing condition is preventing him from maximal recovery if he is restricted to the $3,500 treatment limit within the MIG.
22The applicant has provided submissions that his pre-existing medical condition prevents him from achieving maximal recovery, however, submissions alone are not evidence and the applicant has not pointed me to any medical evidence or an opinion of a medical practitioner that states this to be the case. On submissions alone, I am not prepared to draw a conclusion that the applicant’s pre-existing condition from 2010 is preventing him from achieving maximal medical recovery from his minor injuries under the MIG.
23It is my finding that the applicant did not satisfy his onus to show that he had a pre-existing medical condition that prevents him from recovering if he stays within the MIG. Since I have determined that his injuries are within the MIG, I do not have to make a determination on whether the treatment plans are reasonable and necessary. Accordingly, no interest is payable.
CONCLUSION
24For the reasons outlined above, I find that:
a) the applicant sustained predominately minor injuries as defined in the Schedule; and
b) the applicant has not established that he has a pre-existing medical condition that prevents recovery under the MIG and therefore the applicant is not entitled to the treatment plans or the interest that is in dispute for this application.
Released: December 11, 2017
Sandeep Johal, Adjudicator