Tribunal File Number: 17-003608/AABS
Case Name: 17-003608 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:
M.K.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Robert Watt
APPEARANCES:
For the Applicant: Victoria Tchilikova, counsel
For the Respondent: Susannah Margison, counsel
HEARD: In writing and in person on November 3, 2017
OVERVIEW
1The applicant was injured in a motor vehicle accident on January 6, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule- Effective September 1, 2010 (“the Schedule”).
2The applicant submitted an application to the Licence Appeal Tribunal-Automobile Accident Benefits Service (the “Tribunal”).
3The Tribunal held a case conference on August 16, 2017, and the matter proceeded to both a written hearing and an oral hearing on November 3, 2017.
4The oral hearing consisted only of the cross and re-direct examination of the applicant on his affidavit filed and the parties closing arguments.
5The applicant returned to work four weeks after the accident and submitted a Disability Certificate which supported a non-earner benefit three years after the accident.
6The applicant in 2016 submitted a treatment and assessment plan proposing $8000.00 in chronic pain treatment, but refused to attend a section 44 assessment.
ISSUES IN DISPUTE
7Is the applicant in non-compliance with section 44 of the Schedule for refusing to attend an insurer’s examination? If so, what is the period of non-compliance?
8Is the applicant prohibited from bringing a claim for a non-earner benefit because he did not suffer a complete inability to carry on a normal life within 104 weeks after the accident?
9Do the applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
10Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period September 28, 2016 to-date, and ongoing?
11Is the applicant entitled to receive a medical benefit in the amount of $7,945.17 for physiotherapy treatment recommended by LV Rehabilitation Clinic in a treatment plan dated March 28, 2016, denied by the respondent on April 1, 2016?
12Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
13I find that the applicant is in non-compliance with section 44 of the Schedule from April 8, 2016, and thereafter. As a result of the applicant’s non-compliance, he is not permitted to proceed with his application for a medical benefit in the amount of $7,945.17 for physiotherapy treatment, recommended by LV Rehabilitation Clinic, in a treatment plan dated March 28, 2016, and denied by the respondent on April 1, 2016.
14I find that the applicant has not suffered a complete inability to carry on a normal life as a result of, and within 104 weeks after the accident. I find also that the applicant is not entitled to receive a non-earner benefit in the amount of $185.00 per week for the period September 28, 2016 to-date, and ongoing.
15I find that the applicant’s injuries fall within the MIG.
16I find that the applicant is not entitled to any interest.
ANALYSIS
Background
17The applicant was involved in an accident on January 6, 2013, when his vehicle was hit by another car. His car spun around and the airbags deployed. His knees hit the dashboard and the back of his neck hit the head rest. He attended the Trillium Health Centre the same day, and was given medication for pain management.
18The applicant returned back to work approximately four weeks after the accident. The respondent classified the injuries as falling within the MIG, and paid $3,411.34 in medical benefits.
19The applicant submitted an OCF-18 dated March 28, 2016 (more than 3 years post-accident), prepared by LV Rehabilitation. It recommended a gym membership, osteopathic therapy, behaviour modification, acupuncture and massage therapy, at a cost of $7,945.17. The report also diagnosed the injuries as whiplash [WAD2] with complaint of neck pain; sprain and strain of thoracic spine; internal derangement of knee and anxiety disorders.
20The respondent declined funding in an Explanation of Benefits dated April 8, 2016, and requested an Insurer’s Examination (“IE”) pursuant to the Schedule. Its explanation for denial was that the applicant had not provided compelling evidence that the impairment sustained was not predominantly a minor injury.
21The respondent scheduled a psychological assessment on April 26, 2016, and a physiatry assessment on May 20, 2016.
22The applicant refused to attend either appointment, on the basis that the notice was not proper, taking the position that it dealt only with MIG issues.
Is the applicant in non-compliance with Section 44 of the Schedule for refusing to attend an insurer’s examination? If so, what is the period of non-compliance?
23Section 44 of the Schedule permits an insurer to require an insured to be examined by a regulated health professional to determine if the insured is entitled to benefits.
24The notice for any IE has to set out the medical and any other reasons for the examination and the particulars of the examination (date, time, location, who will conduct the exam, etc.). The courts have held1 that if an insurer believes that the MIG applies, it must indicate in the notice the following information: that it has reviewed the treating health practitioner’s opinion; has reviewed the MIG and compared it to the treating health practitioner’s opinion; and concluded that in its view, the applicant’s treating health practitioner has not provided compelling evidence that the applicant’s injuries fall outside the MIG.
25If the insured fails to attend the IE, then pursuant to Section 55(1)2 of the Schedule, the insured shall not proceed with an application to the Tribunal until the insured has complied with Section 44.
26I have reviewed the respondent’s letter dated April 8, 2016, which denies funding for the OCF-18 submitted by the applicant on March 28, 2016. The respondent’s Explanation of Benefits meets all of the requirements for proper notice as set out in paragraph 22 above.
27The applicant did not address the Section 44 issue in his written submissions. He did not provide any evidence as to why he did not attend the IE or in what way the notice was deficient.
28I find therefore that the applicant is prevented from proceeding with his application, until he complies with the Section 44 request by the respondent.
Is the applicant prohibited from bringing a Non-Earner Benefit Application?
29I must address whether the applicant suffered a complete inability to carry on a normal life as a result of, and within 104 weeks after the accident?
30Section 12 of the Schedule requires an insurer to pay a non-earner benefit (IRB) to an insured person who sustains an impairment as a result of an accident, if the insured person suffers a complete inability to carry on a normal life, as a result of, and within 104 weeks after the accident.
31The court in Heath v. Economical Mutual Insurance Company2 held that the applicant has to show an impairment which results in an inability to engage in substantially all of his pre-accident activities.
32There is not sufficient evidence before me to show that the applicant suffered a complete inability to carry on a normal life as a result, and within 104 weeks, of the accident.
33The applicant’s family doctor, Dr. Adamo, noted in his clinical notes on January 22, 2013, that the applicant had soft-tissue injury. This doctor also noted that “the applicant was feeling he was almost back to normal.” Dr. Adamo provided a letter February 20, 2013, indicating that the applicant was able to return to his regular work hours and duties. The applicant returned to work on March 4th 2013, 2 months post-accident. He therefore would not qualify for an IRB.
34From May 5, 2014 to January 12, 2015, the applicant did not go to his family physician at all. When he did attend on January 12, 2015, he attended because of a cold sore on his lower lip. The applicant’s family doctor has never indicated that the applicant suffered a complete inability to carry on a normal life, nor referred him to any specialist. The applicant claimed some accident-related anxiety, but did not seek any treatment/diagnosis from a psychologist.
35In a section 44 Physiatry Report dated November 6, 2013, Dr. Chris Boulias indicated that the applicant suffered a minor injury. In his section 44 Physiatry Addendum Report, dated August 30, 2017, he confirmed that his previous opinion remained unchanged.
36In his sworn affidavit of October 4, 2017, the applicant indicated that his family life participation is not at the same level as it was before the accident because he cannot stand, drive or sit as long. He indicates that he has to take frequent breaks at work as well. He is also now more limited in his physical activities of bike riding, swimming, playing soccer, home maintenance etc. because of the aggravation of the neck pain and the knee pain. This was the extent of the evidence I was provided of the applicant’s life, before and after the accident
37In relation to the issue of ongoing pain, the courts have held3 that ongoing pain as a result of an accident is not sufficient to meet the non-earner test. Non- earner benefits are not intended to compensate an insured person for having to engage in post-accident activity with pain and discomfort. As noted in the Health case above, the applicant has to show an impairment which results in an inability to engage in substantially all of his pre-accident activities
38I find that the applicant has not established by any medical evidence or by his own affidavit evidence that he has met this test based on evidence that he suffered a complete inability to carry on a normal life within 104 weeks of the accident.
39I therefore find that the applicant is not entitled to receive a non-earner benefit in the amount of $185.00 per week for the period September 28, 2016 to-date, and ongoing.
Do the applicant’s injuries fall within the Minor Injury Guideline?
40The applicant saw a pain specialist, Dr. Wilderman, on March 31, 2014, who diagnosed him generally with chronic neck pain disorder, a chronic whiplash type 1. However, the doctor’s objective examination conclusions indicate that the neck area was normal, and do not support his general conclusion that the applicant was suffering from chronic neck pain. In his medical report of July 20, 2017, Dr. U. Patel, a chiropractor, relied on Dr. Wilderman’s report to opine that the applicant had not sustained a minor injury and that his injuries were beyond the MIG.
41Dr. Wilderman also found that the range of motion during the applicant’s head and neck examination was 45 degrees, which is normal. He also found that lateral flexion to the right and to the left was 40 degrees, which is normal. Rotation was also found to be 70 degrees to the right and to the left, which is normal. Dr. Wilderman arrived at the same conclusions in his objective examination as the applicant’s family doctor, Dr. Adamo: that the applicant‘s neck functions were normal.
42I find that Dr. Wilderman’s objective examination conclusions are inconsistent as to any chronic pain findings. Dr. Adamo’s clinical notes also do not indicate any chronic pain as a result of any whiplash.
43The Schedule defines minor injury to include any clinically-associated sequelae to such injury.
44The applicant has not proven that any chronic pain that he is incurring, if it does exist, is not a sequelae of a minor injury. The applicant has also not provided any evidence of any pre-existing condition, that would prevent maximum recovery under the MIG.
45I therefore find that the applicant’s injuries fall within the MIG.
COSTS
46No costs will be awarded against the respondent, as there is no evidence put before me as to any conduct exhibited by the respondent that was unreasonable, frivolous, vexatious or in bad faith.
ORDER
47The applicant’s application is hereby dismissed.
Released: February 13, 2018
___________________________
Robert Watt, Adjudicator
Footnotes
- 16-002772 v Aviva Insurance company, 2017 CanLII 33689
- 2009 ONCA 391
- Stranges v Allstate, 2010 ONCA 457, 2010ONCA 457