Tribunal File Number: 17-005008/AABS
Case Name: 17-005008/AABS v Certas Home and Auto Insurance Company
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
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Stephanie Kepman
APPEARANCES:
For the Applicant: Arvin Gupta, Counsel
For the Respondent: Ali Z. Khan, Counsel
HEARD: In writing on February 15th, 2018
OVERVIEW
1The applicant was injured in an automobile accident on July 8, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant suffered injuries to her wrist, knee, elbow and back. The applicant applied for medical benefits that were denied by the respondent because she was placed into the Minor Injury Guideline (the “MIG”).
2The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) pursuant to section 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”). The parties proceeded to a case conference on the matter but could not resolve their dispute.
ISSUES
3The disputed issues in this hearing are:
Are the applicant’s injuries, specifically a spasm in the lumbar spine, primarily of a minor nature, as defined under the Schedule?
Is the applicant entitled to receive a medical benefit in the amount of $4,436.75 for chiropractic treatment that was recommended by Reddy’s Physio and Rehab in a treatment plan dated December 3, 2015 and denied on December 15, 2015?
Is the applicant entitled to interest on the overdue payment of benefits?
RESULT
4Based on a review of the evidence presented, I find that:
The applicant sustained predominantly minor injuries as defined under the Schedule.
The applicant is not entitled to receive a medical benefit in the amount of $4,436.75 for chiropractic treatment that was denied on December 15, 2015.
The applicant is not entitled to interest on the overdue payment of benefits.
ANALYSIS
WHAT IS A MINOR INJURY?
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.
WHAT IS EXCLUDED FROM BEING A MINOR INJURY?
6Section 18(2) of the Schedule makes provision for insured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. To access the increased benefits, the insured 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 insured person from achieving maximal recovery if benefits are limited to the MIG cap.
7The respondent submitted the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635 (“Scarlett”). In that case, the Divisional Court reviewed the minor injury provisions in the Schedule, finding that they were a limit on an insurer’s liability, not an exclusion from coverage, and that the onus of establishing entitlement beyond the cap rests with the claimant. Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500 cap for minor injuries.
INJURY
8The applicant’s Chiropractor, Frederick Levenston, submitted a Treatment and Assessment Plan (OCF-18) dated December 3, 2015. As part of the plan, the applicant had a lumbar spine x-ray performed on July 13, 2015. The x-ray indicated that the Applicant did show spasms in the lumbar spine.
INJURY OUTSIDE OF THE SCHEDULE?
9The applicant must demonstrate that the spasm in the lumbar spine does not fall within the definition of a minor injury as defined in section 3 of the Schedule. This definition does not specifically include any form of the word “spasm” or any of its synonyms. However, it does include the term “any clinically associated sequelae to such an injury”.
10The threshold for demonstrating that the lumbar spasm falls beyond the umbrella for “any clinically associated sequelae to such an injury” can be found in the Tribunal decision 16-000438 v The Personal Insurance Company, 2017 CanLII 59515. That decision states that in order for an applicant to be removed from the MIG on the basis of chronic pain, they must prove on a balance of probabilities that they did not sustain a predominantly minor injury and that the pain experience is not just sequelae from the minor injuries. The decision goes on to state that the pain must cause suffering and distress with a functional impairment or disability.
11I find that the applicant has failed to provide any medical evidence of the applicant demonstrating that she sustained pain that caused suffering and distress with a functional impairment or disability. She states in her personal affidavit that she was told by an unnamed chiropractor at Reddy’s Physio that her spine was misaligned because of the impact of the car accident. However, absent an official diagnosis or other supportive medical proof, her claim of spinal misalignment cannot be taken as medical evidence supporting her claim and I assign it little to no weight as a result.
12The applicant has failed to introduce any evidence that she has experienced anything beyond a minor injury. Her medical tests have indicated that she did suffer an injury as a result of the car accident, but the applicant has not submitted sufficient medical evidence that discusses her dealing with chronic pain, her pain levels, or any kind of functional impairment. The applicant provided an x-ray of the lumbar spine, which was demonstrative of the spasm, but I do not find this to be compelling evidence in terms of her objective pain, suffering, and distress nor her functional impairment or disability. Her x-ray notes that there was no disc spacing, compression deformities, destructive lesions or soft-tissue abnormalities
13The applicant has not argued that that there are any pre-existing conditions or psychological impairments that would exclude her from the MIG. In the applicant’s affidavit, she stated she is living with chronic back pain and requires ongoing physiotherapy. I was not provided with or directed to any evidence of a diagnosis of chronic pain syndrome and whether that could possibly take the applicant out of the MIG. As a result, I assign no weight to this submission.
COST OF PHYSIOTHERAPY TREATMENT
14Since I have found that the applicant sustained predominately minor injuries as defined under the Schedule and has exhausted her $3,500 limit under the MIG, the cost of the physiotherapy treatment plan is not payable.
CONCLUSION
15For the reasons outlined above, I find that:
The applicant sustained predominately minor injuries as defined under the Schedule.
Since the answer to issue one is yes:
The applicant is not entitled to receive the cost of her treatment as outlined in the Treatment and Assessment Plan (OCF-18) dated December 3, 2015, in the amount of $4,436.75.
The applicant is not entitled to interest on the overdue payment of benefits.
Released: March 6, 2018
___________________________
Stephanie Kepman, Adjudicator