E.S. v. Aviva General Insurance
Tribunal File Number: 17-008413/AABS
Case Name: 17-008413 v Aviva General Insurance
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:
E.S.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the applicant:
Suhaib Ibrahim, Counsel
For the respondent:
Stanford Cummings, Counsel
Written Hearing on:
June 25, 2018
OVERVIEW
1E.S. ("the applicant") was injured in an automobile accident ("the accident") on October 3, 2013 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") when his claim for medical treatment benefits was denied by the respondent.
2The respondent denied the applicant's claim, because it determined that all of the applicant's injuries fit the definition of "minor injury", as prescribed by s. 3(1) of the Schedule. Therefore, his injuries fell within the Minor Injury Guideline2 ("the MIG"), as prescribed by s. 18(1) of the Schedule. The applicant's position is the opposite.
3If the applicant's position is correct, then I must address if the medical treatment claimed is reasonable and necessary.
4If the respondent's position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation 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.
ISSUES
5Did the applicant sustain predominantly minor injuries as defined by the Schedule?
6If the applicant's injuries are not subject to the MIG, then I must determine the following issues:
i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,197.17 for assistive devices recommended by Access Rehab in a treatment plan (OCF-18) dated September 25, 2015, and denied on December 7, 2015?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,327.60 for treatment and assistive devices recommended by Prime Health Care in a treatment plan (OCF-18) dated November 29, 2015, and denied on April 4, 2016?
iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,208.50 for chiropractic, massage and acupuncture treatments recommended by Prime Health Care in a treatment plan (OCF-18) dated November 4, 2015, and denied on November 24, 2016?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that the applicant's injuries are "minor injuries". It is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest.
ANALYSIS
Minor Injury Guideline
8Section 3(1) of the Schedule defines a "minor injury" 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 MIG also defines in detail what these terms mean.
9Section 18(1) then limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.
10The onus is on the applicant to show that his injuries are not minor in nature.3
Did the applicant sustain predominantly minor physical injuries?
11I find that the evidence establishes that the applicant sustained physical injuries that are defined as predominantly a "minor injury".
12The applicant submitted the clinical notes and records ("CNRs") of his family doctor, Dr. Karna Kale, from January 24, 2011 to December 7, 2016.
13Dr. Kale's CNRs indicate that the applicant was diagnosed with a trapezius strain on September 12, 2015.
14Following an MRI of the applicant's lumbar spine, Dr. Kale observed the applicant's L4-5 lumbar spinal discs showed minimal degenerative changes. There was also a small central disc herniation and sacralisation of the L5 vertebral body.
15Dr. Kale noted on November 25, 2015 that the applicant's injuries were not serious, but that he was dealing with chronic pain.
16Therefore, while his physical injuries may not be serious in nature, the applicant argues that he should not be subject to the MIG because of chronic pain.
Does the applicant suffer from chronic pain?
17The applicant submits that he suffers from chronic pain, which removes him from the MIG, because the prescribed definition of "minor injury" does not include chronic pain conditions.
18Based on the evidence before me, I am not persuaded that the applicant is suffering from chronic pain for the following reasons:
(a) The applicant submitted the Chronic Pain Medical Assessment Report of Dr. Mark Friedlander to advance his claim. The applicant was assessed by Dr. Friedlander on October 9, 2014, approximately 1 year after the motor vehicle accident and 1 year before any of the disputed treatment plans were submitted.
Dr. Friedlander is a specialist in anesthesiology and a consultant in acute and chronic pain management at North York General Hospital. I find Dr. Friedlander's report persuasive for the period in time he evaluated the applicant. That is, I accept the applicant suffered from chronic pain at the time of the assessment.
The issue I take with this evidence is that though it demonstrates the applicant was diagnosed with chronic pain in 2014, the report doesn't support the applicant's claim that he is still dealing with chronic pain.
Though I do believe that the applicant did suffer from chronic pain in 2014, it does not answer the question if this is still a functional impairment for the applicant.
This information is almost 4 years old. It is a snapshot of the pain that the applicant was dealing with. It does not demonstrate that the applicant is still dealing with this pain.
This evidence could be used in combination with more up to date evidence to prove the applicant's argument that he is living with chronic pain, but without other documentation, I do not find this report alone to be enough to support the applicant's claim.
(b) The CNRs of the applicant's family doctor, Dr. Kale, clearly state that the applicant did not suffer from a serious injury as a result of the accident. Rather, he was dealing with chronic pain on November 25, 2015.
However, this chronic pain did not cause any specific functional restrictions, nor was it disrupting the applicant's pre-accident activities of daily living. For instance, Dr. Kale felt the applicant should be able to return to his regular activities so long as he took analgesic to control his pain. Dr. Kale opines that since the applicant is not taking any prescribed pain killers, the applicant's pain must be either well-tolerated or controlled with home and over-the-counter remedies.
The applicant returned to his family doctor on December 22, 2015 to receive referrals for consults with a psychiatrist, neurologist and physiatrist. The applicant has not provided any of the CNRs from these referrals.
After this visit, the applicant's CNRs from Dr. Kale become sparse. He visited Dr. Kale on November 12, 2016 and received a prescription for Lyrica with 2 refills. This appears to be the applicant's only visit to his family doctor in the year 2016. This is supported by the applicant's OHIP summary from 1 year pre-accident to date.
(c) The applicant failed to provide any CNRs from Dr. Kale beyond December 7, 2016, despite being ordered to do so by Adjudicator Grieves on March 28, 2018. This lack of additional documentation allows me to infer that these CNRs would not have supported the applicant's assertion that he suffered from chronic pain at this time.
Further, when the applicant did return to visit a doctor on May 10, 2017 and September 9, 2017, his OHIP summary indicated that these visits were related to "common cold, acute nasopharyngitis" and "fibrositis, myositis, muscular rheumatism".
19Because I have found the applicant is subject to the financial and treatment limits of the MIG, it is unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary.
CONCLUSION
20For the reasons outlined above, I find that the applicant sustained predominantly minor injuries. Accordingly, he is not entitled to the treatment plans claimed in this application, nor is he entitled to interest. His application is dismissed.
Released: October 10, 2018
___________________________
Stephanie Kepman
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635, at para. 24.