Date: 2017-12-12

Tribunal File Number: 17-002177/AABS

Case Name: 17-002177 v Travelers 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

Travelers Canada

Respondent

DECISION

ADJUDICATOR: Avvy Go

APPEARANCES:

For the Applicant: Dharshika Pathmanathan, counsel

For the Respondent: Kathryn Ball, counsel

HEARD: Written Hearing 1: August 21, 2017

REASONS FOR DECISION AND ORDER

Overview

1The applicant, [the applicant], was injured in a motor vehicle accident (the “accident”) on December 2, 2014. At the time he was 49 years old. He has applied to the Licence Appeal Tribunal (the “Tribunal”) for the resolution of a dispute with the respondent, Travelers Canada over his entitlement to statutory accident benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).

2The dispute concerns the respondent’s denial of the applicant’s claim for a number of medical and assessment benefits primarily on the basis that the claimant’s injures fell within the Minor Injury Guideline (“MIG”).

3The hearing was in written format. The applicant submitted medical documents as well as written submissions. 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.

4While he was given the opportunity to do so, the applicant did not submit any reply to the respondent’s written submissions.

5After considering the parties’ submissions, I conclude that the applicant’s injuries do fall within the MIG, and the therefore, the respondent’s denial of those benefits were proper.

Issues

6At the case conference held on June 7, 2017, the following issues were found to be in dispute in this matter:

a) Is the applicant entitled to a medical benefit for the balance of partially approved chiropractic treatment plan dated March 9, 2015, submitted by Physio Fix and Fitness in the amount of $196.99?

b) Is the applicant entitled to a medical benefit outlined in a physiotherapy treatment plan dated April 21, 2015, submitted by Physio Fix and Fitness in the amount of $4,018.22?

c) Is the applicant entitled to a medical benefit outlined in a chiropractic treatment plan dated September 21, 2015, submitted by Physio Fix and Fitness in the amount of $4,470.35?

d) Is the applicant entitled to the cost of a psychological assessment outlined in a treatment plan dated February 22, 2015, submitted by HealthCare Assessment Centre in the amount of $2,191.90?

e) Did the applicant sustain predominantly minor injuries as defined under the Schedule?

f) Is the applicant entitled to interest for the overdue payments?

7I find on all of the evidence that the applicant is not entitled to the medical benefits and assessments claimed and as such, no interest is payable.

Facts

8On December 2, 2014, the applicant’s vehicle was hit by a truck with a trailer.

9The applicant declined immediate medical attention from paramedics at the scene and did not attend the hospital on the date of the accident.

10The morning following the accident, the applicant attended the Emergency Room at the Mackenzie Richmond Hill Hospital (“Mackenzie Health”). He underwent x-rays of his cervical and lumbar spine which did not reveal evidence of a fracture or subluxation. Early degenerative changes and minor wedging were identified along the applicant’s lumbar spine. The applicant was discharged with a diagnosis of sprain and strain injuries.

11The applicant started attending treatment at a rehab clinic, Physio Fix, on December 4, 2014.

12The applicant saw his family physician, Dr. Victor Lee, on December 14, 2014, who provided treatment for the applicant’s stiffness and tenderness in the back of the neck, lumbar spine and ankle.

13Through his family physician and other health care professionals, the applicant subsequently submitted claims for benefits and treatment plans to his insurer.

14The applicant co-owns two restaurants and several other businesses in the Greater Toronto Area. He had returned to work since the accident.

Analysis

Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

15The respondent’s main reason for denying the benefits claimed by the applicant is based on its assessment that the applicant’s injuries fall within the MIG. I will therefore begin my analysis of the applicant’s injuries and whether they fall under the MIG.

16The 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.

17Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to o access increased benefits, if the injured person’s healthcare provider provides 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 of $3,500.

18In 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 in this case, has the burden of establishing his entitlement to more than minor injury coverage. Specifically, the applicant has the burden of showing that the injuries are not minor injuries as defined by the Schedule, commonly known as “soft tissue injuries”.

19I note that the injuries as described in the medical reports arising from the accident, including those submitted by the applicant, can be described as sprain and strain and other “soft tissue injuries”. The applicant did not argue that he has injuries that are not “soft tissue” in nature.

20Rather, the applicant submitted that his injuries do not fall under MIG because of:.

• His pre-existing left ankle injury;

• His lumbar spine degeneration which, if pre-existing, was exacerbated by the accident; and

• His untreated psychological symptoms from the accident.

Left ankle injury

21Dealing first of all, with the applicant’s left ankle injury, there is evidence before me that the applicant had a left ankle injury prior to the accident. For instance, the applicant has complained to his family physician, Dr. Victor Lee on several occasions about pain in his left ankle. However, as the respondent pointed out, the applicant was seen by Dr. Bischoff, an orthopaedic surgeon, who reported on September 22, 2015, noting the applicant had almost full range of motion in the ankle. While Dr. Bischoff noted evidence of degenerative changes in the ankle, he recommended conservative pain management measures. The applicant was also assessed by Dr. Wilson, a neurologist, who opined the left ankle pain was related to osteoarthritis and recommended Advil. Neither Dr. Bischoff nor Dr. Wilson indicated that the applicant was suffering from any functional impairments arising from the left ankle pain.

22While I accept that the applicant may have prior issue with his left ankle, I still have to determine whether this pre-existing condition has prevented the applicant from achieving maximum recovery. The answer, I conclude is no. I find no evidence connecting his left ankle injury to the applicant not being able to achieve recovery under the MIG.

Lumbar spine

23With respect to the lumbar spine issue, I find overall there is a lack of compelling evidence, other than the x-ray from Mackenzie Health which showed degenerative changes, or that such condition would not allow him to recover under the MIG.

24The applicant submitted that prior to the applicant he had few complaints of neck and back pain. The December 4, 2014 x-ray showed early degenerative changes from L2 to L5. However, all three treatment plans in dispute indicated that it was “unknown” whether the applicant suffered from a pre-existing condition that would affect his recovery.

25I also note that Dr. Tran of Physio Fix rehab clinic specifically denied that the applicant suffered from any pre-existing condition that would affect his recovery. Two progress reports by Dr. Tran dated April 21, 2015 and September 2015 indicate that the applicant’s complaints of shoulder pain and headaches were resolved and that his ongoing neck and back pain was of a mild severity.

26Finally, the applicant himself has noted in his own statement dated January 13, 2015¹, that he did not suffer any prior medical conditions and was in good health before the accident.

27Overall, the evidence shows that the applicant attended treatment until January 2016, and with treatment his condition has continued to improve over time which allowed him to return to work on a gradual basis. By his own admission, the applicant stopped seeking treatment because he wanted to return to his regular life and because he did not know if the formal treatment would be covered by the insurer. Moreover, over time the applicant reported improvements in his condition to his family physician, and had in fact returned to his work.

28The respondent cited the case of L.C. v Aviva Insurance Company of Canada² to argue degenerative health changes identified after the accident do not satisfy the requirement for pre-accident documentation of the condition, I note that the case cited by the respondent can be distinguished in that, in L.C., the report that identified the degenerative changes came about three years after the accident. The respondent also argued, based on S.S. v. State Farm Mutual Automobile Insurance Company³, that degenerative changes in the spine, in and of itself, is not compelling evidence of a pre-existing medical condition that would support a removal from the MIG. I disagree with the respondent’s reading of the S.S. case. The applicant failed in that case because of insufficient evidence that he had sustained a cervical radiculopathy injury.

29Nevertheless, I still have to find if the applicant’s injuries fall outside of MIG because of the prior medical condition with respect to the lumbar spine has prevented the applicant from achieving maximum recovery, and I find compelling evidence wanting.

Psychological injuries

30Finally, I considered the relevance of the psychological injuries that the applicant submitted he has sustained from the accident. I note that apart from report of insomnia in the immediate post-accident period, the applicant has never reported psychological impairments to his family physician. Subsequent reports from Dr. Wilson indicate that the applicant’s sleep impairments were related to his left ankle problems which are unrelated to the accident. More importantly, the applicant did not report any psychological impairments in his sworn statement dated January 13, 2015, less than one month prior to the submission of the treatment plan proposing a psychological treatment.

31The only substantive evidence about the applicant’s psychological impairment is found in the pre-screening report prepared by Dr. Bodnar’s office. Dr. Bodnar’s report was based entirely on an interview conducted with the applicant by a registered social worker, without the support of any diagnostic testing. I note also that there is an absence of any of the emotional issues raised by the applicant with his own family physician. As a result, I find there is a lack of compelling evidence to support the presence of psychological impairment that would take the applicant out of the MIG.

32Based on all of the above, I find that the applicant’s injuries as indicated in the medical reports are predominantly minor injuries. With that, I will now examine the issues that remain in dispute between the parties.

Issue 1: Is the applicant entitled to a medical benefit for the balance of partially approved chiropractic treatment plan dated March 9, 2015, submitted by Physio Fix and Fitness in the amount of $196.99?

33The applicant received a partial payment of this plan up to $1,100.00 to reflect the balance remained in the policy limits for injuries that fall within the MIG.

34Apart from claiming that the applicant’s injuries fall under the MIG, the respondent also took the position that treatments proposed are not reasonable and necessary. Understandably, the applicant took the opposite position, stating that the treatment plans help reduce the applicant’s pain and improve his daily functioning.

35I note first of all that there is limited information provided about the applicant’s current functional capacity. I also note that the respondent submitted that the applicant had not been in compliance with the treatment at Physio Fix, while the applicant noted that it was because he did not know if the treatment would be covered by the insurer.

36Without any further information as to why the treatment that the applicant had chosen to stop would now assist him in his recovery, I find the treatment plan as proposed is not reasonable and necessary. And in any event, since I have found the applicant’s injuries do not fall outside of the MIG, I find the applicant not entitled to the benefit claimed.

Issue 2: Is the applicant entitled to a medical benefit outlined in a physiotherapy treatment plan dated April 21, 2015, submitted by Physio Fix and Fitness in the amount of $4,018.22?

Issue 3: Is the applicant entitled to a medical benefit outlined in a chiropractic treatment plan dated September 21, 2015, submitted by Physio Fix and Fitness in the amount of $4,470.35?

37Given my finding on the MIG issue, I find the applicant is not entitled to these medical benefits (issue 2 and issue 3) as proposed, as the applicant has already exhausted the policy limits for injuries fall within the MIG.

Issue 4: Is the applicant entitled to the cost of a psychological assessment outlined in a treatment plan dated February 22, 2015, submitted by HealthCare Assessment Centre in the amount of $2,191.90?

38The applicant also made a claim for a psychological assessment. I note once again the general lack of evidence with respect to the applicant’s psychological conditions. Given the lack of evidence before me to support why a psychological assessment would be reasonable and necessary in this case, I must therefore reject the applicant’s claim in this regard.

Issue 5: Is the applicant entitled to interest for the overdue payment of benefits?

39In view of my findings above, the applicant is not entitled to interest.

ORDER

40The applicant is not entitled to any of the benefits he claims in this application. As such, no interest is payable.

Footnotes

1. 1The applicant was interviewed by Nelio Jordao of Travelers Canada on January 13, 2015 in the presence of the applicant’s legal representative and an interpreter. The statement was signed by the applicant.
2. 22017 CanLII 12598 (ON LAT)
3. 32016 CanLII 67137 (ON LAT)