17-001939 v Aviva Insurance Canada, 2017 CanLII 87154

Date: 2017-12-11

Tribunal File Number: 17-001939/AABS

Case Name: 17-001939 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: Roshanne Atherley, Counsel

For the Respondent: Amanda Lo Cicero, Counsel

HEARD in Writing on: September 7, 2017

OVERVIEW

1This is an Application to the Licence Appeal Tribunal (the “Tribunal”) to determine an insured person’s entitlement to statutory accident benefits.

2[The applicant], (“the applicant”) was involved in an automobile accident on December 26, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

DISPUTED BENEFITS

3The issues to be decided by the Tribunal are:

1. Do the Applicant’s injuries fall within the Minor Injury Guideline?

2. Is the applicant entitled to the cost of an in-home assessment examination in the amount of $2,248.90 by Complete Care Physio submitted March 15, 2016 and denied by the respondent on March 23, 2016?

3. Is the applicant entitled to a non-earner benefit in the amount of $185.00 weekly submitted February 2, 2016 and denied by the respondent on October 12, 2016?

4. Is the applicant entitled to interest on any overdue payments from the respondent?

5. Is the respondent liable to pay an award under Regulation 664, Automobile Insurance² (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

FINDINGS

4The applicant’s injuries fall within the definition of “minor injury” prescribed by s.3(1) of the Schedule.

5The applicant’s claim for an in-home assessment examination set out as issue 2 above is denied.

6The applicant has not proven her entitlement to non-earner benefits (“NEB”): her application set out as issue 3 above is denied.

REASONS

MIG Determination

10I 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 various treatment and assessment plans.

11The 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.

12If 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, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

13Section 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.”

14The applicant’s submission refers to psychological injuries and chronic pain, but provides no evidence of any diagnosis of any such disorders. Accordingly, no case for removal from the MIG has been proven.

15All of the physical injuries described in the applicant’s submissions fall within the MIG. She does not argue otherwise. Her claim is based on pre-existing conditions.

The MIG and Pre-existing Conditions

16The applicant claims that pre-existing medical conditions, namely diabetes, arthritis of the knee and obesity, make her recovery within the limits imposed by the MIG impracticable.

17The MIG does permit an applicant with predominately minor injuries to be removed from its coverage if she has a medically documented pre-existing condition, and compelling evidence from a health practitioner that will prevent her from achieving maximal recovery from those injuries if she is subject to the $3,500 cap on treatment costs.³

18The 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.

19The 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.

20It 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 submissions do not speak to how her pre-accident injuries meet the “compelling evidence” test.

(ii) I reviewed the documents submitted as evidence by the applicant and found no explanation of how or why any pre-existing condition would generate a barrier to maximal recovery with treatment confined to the MIG limits.

21I find that the applicant has failed to prove that her injuries fall outside the MIG.

22Because the MIG applies to the applicant’s entitlement to medical benefits, I find that the claim for an in-home assessment is insupportable and accordingly the claim is denied.

23However, even if the MIG did not govern this applicant’s benefits, I would have denied the claim for an in-home assessment because:

i. The applicant’s stated purpose is “to get a true insight of the activities of daily living that [the applicant] was able and not able to do before the above-noted accident; therefore feel it should be payable.” This appears to be a request to continue litigating the NEB issue, which is unsupported by any evidence.

ii. The IE physiatry report by Dr. Czok, dated June 27, 2016, indicated that the applicant reported resuming personal care and housekeeping tasks, with some help from her daughter with housekeeping. The physician concluded that no in-home assessment for attendant care was necessary. Along with other evidence of the applicant’s functionality (see below), it persuades me that there is no basis for me to grant the claim for an in-home assessment for any purpose.

Non-Earner Benefits

24Section 12 of the Schedule provides that an insurer must pay a non-earner benefit (“NEB”) to an insured person who does not qualify for an income replacement benefit and who suffers a complete inability to carry on a normal life as the result of an impairment sustained in an accident. The compensable impairment must arise within 104 weeks after the accident.

25The evidence submitted by the applicant does not speak to NEBs. There is no analysis of pre- vs. post-accident activities. There is no commentary on the applicant’s ability to carry on a “normal life”. The report of Elhaam Tharoo, occupational therapist, dated March 4, 2016, addressed the applicant’s need with respect to help with housekeeping and attendant care. Issues relating to NEB criteria were not addressed.

26The respondent’s IE reports from Dr. Czok, physiatrist, dated June 27 and July 6, 2016 and from Kristine Roth, occupational therapist (an in-home assessment dated June 20, 2016) all speak to the applicant’s post-accident activity levels and functionality and they deny that the applicant suffers a complete inability to carry on a normal life as the result of the accident. The disability certificate from J. Patel, physiotherapist, dated January 30, 2016, notes no inability to carry on a normal life.

27The evidence submitted by the respondent is more persuasive than the applicant’s submission on this issue. Accordingly, I find that the applicant has not met the onus to prove that she is entitled to NEBs.

Award

28Section 10 of the Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

29Because I have found that the applicant is not entitled to the benefits she claims, there is no basis for an award.

Request for Interest

30Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

31In this case, the respondent is not liable for the payment of the disputed benefits and therefore interest is not due.

CONCLUSIONS

32The applicant’s has not proven that her injuries fall outside the MIG. The MIG governs her claims for medical benefits.

33The claim for an in-home assessment is dismissed.

34The applicant has not established her entitlement to NEBs.

35No award is payable under Regulation 664.

36There are no overdue payments and therefore no interest owing to the applicant.

Footnotes

1. 1O.Reg. 34/10
2. 2R.R.O. 1990, Reg. 664
3. 3Minor 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”.