Tribunal File Number: 17-001007/AABS
Case Name: 17-001007/AABS v Aviva Insurance Canada
In the matter of an Application for Dispute Resolution 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: Robert Watt
APPEARANCES:
For the Applicant: Dev Misir
For the Respondent: Matus Averbuch
Written Hearing: August 16, 2017
OVERVIEW
1The applicant, was injured in an automobile accident on April 22, 2015 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule -Effective September 1, 2010 (the ''Schedule'').
2The respondent refused to pay for certain benefits and the applicant submitted an application to the Licence Appeal Tribunal – Auto Accident Benefits Service (the “Tribunal”).
3The parties participated in the settlement discussions, but could not resolve the issues in dispute.
4With the consent of both parties, a written hearing was scheduled for August 16, 2017
ISSUES
5The case conference order dated May 11, 2017 indicated that the following issues were in dispute:
(a) Are the applicant’s injuries arising out of the motor vehicle accident, predominantly minor injuries, as defined in the Schedule to be treated within the Minor Injury Guideline (the “MIG.)” (the Schedule)?
(b) Is the applicant entitled to a medical benefit in the amount of $3,132.36 for chiropractic treatment, pursuant to a Treatment and Assessment Plan (OCF18) completed by Health Solutions Clinic and submitted on June 11, 2015?
(c) Is the applicant entitled to a medical benefit in the amount of $2,968.64 for chiropractic treatment, pursuant to a Treatment and Assessment Plan (OCF18) completed by Health Solutions Clinic and submitted on October 1, 2015?
(d) Is the applicant entitled to interest on the overdue payment of benefits?
RESULTS
6I find that the applicant’s accident-related injuries fall within the MIG. I also find that the applicant is not entitled to medical benefits in the amounts of $3,132.36 and $2,968.64, for chiropractic treatments.
LAW
7Section 3(1) of the SABS defines a minor injury to include sprain strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.
8Recovery for any minor injury impairment under section 18(1) is limited to $3500.00, subject to the additional requirement that all medical benefits are reasonable and necessary. (Section 15(1) of the SABS)
9Pursuant to section 18 (2) of the SABS, If an insured provides documented pre- accident medical evidence by a health practitioner, to show a pre-existing medical condition that prevents an insured from achieving maximal recovery under the MIG, then the $3500.00 limit does not apply.
10The onus is on the insured to prove, on a balance of probabilities that the MIG does not apply.1
11The reasonableness and necessity of treatment must be held to an established standard which requires:
i. The treatment goals as identified are reasonable;
ii. The treatment goals are being met to a reasonable degree; and
iii. The overall costs of achieving these goals are reasonable.2
12The onus of proving that the medical benefits are reasonable and necessary lies with the insured.3
13Section 51 of the SABS permits interest to be ordered against the insurer, on any amount overdue.
EVIDENCE
14The applicant was involved in a T-bone collision on April 22, 2015. She had to be extricated from her car, and was taken to the hospital by ambulance. At this time she complained of left neck pain, shoulder pain, mild left arm numbness and a headache.
15Both the ambulance report and the hospital emergency report indicated there was some neck and shoulder pain complained of, but nothing more serious.
16The applicant’s position is that her impairments are not predominantly minor injuries, and so fall outside the MIG.
17The applicant relies on two reports of Dr Alan Pintaric, a chiropractor, dated June 11, 2015 and October 1, 2015. His reports indicate that the applicant has a pre –accident sciatic nerve problem, suffers from anxiety since the accident, has chronic post traumatic headache, and she cannot function at full capacity. The noting of the applicant’s pre-accident sciatic nerve problem was not based on Dr Pintaric’s direct expertise or during his care pre-accident.
18In chiropractic reports dated June 11 and October 1, 2015, Dr Pintaric indicated that he had treated the applicant for low back pain prior to the accident, and reported continued low back pain and thoracic spine pain. His observations as to post-traumatic stress disorder and mixed anxiety have to be ignored, as he is not qualified to give those opinions.
19The applicant also saw Dr Eugene Chang, a physical medicine and rehabilitation specialist, who noted that there was tenderness to palpitation in the upper trapezius and in bilateral quaratus lumborum. He provided rehabilitation counselling and chronic pain counselling.
20Dr Edward Cole, nephrology and internal medicine specialist, indicated that he had been treating the applicant for approximately 23 years for kidney disease. His report dated January 5, 2016, indicated that the applicant has kidney disease which is likely contributing to hyper- tension. He recommended that she lose weight as she was overweight. Dr Cole was the only doctor who provided direct information as to any pre -existing medical treatment.
21The Respondent submits that the applicant’s injuries fall within the MIG. The Respondent relies on the insurer’s examination by Dr. Shemtov whose reports dated September 27, 2015, and October 17, 2015, conclude that the applicant suffered minor injuries.
22Dr Shemtov concluded “there were no consistently reproducible signs of a significant accident related osseous, muscular or neurological injury and no significant functional impairments were identified.” The sciatic nerve issue was apparently no longer an issue, as Dr Shemtov did not identify it as a current medical issue in his reports. On that basis, he concluded that the proposed treatment and assessment plans submitted for chiropractic treatments in the amounts of $3,132.36, and $2,968.64, were not necessary and reasonable.
23Most of the prescription medications that the applicant has been on since the accident have been for anxiety/sleep/ depression, diuretic, hypertension and insomnia, as opposed to dealing with pain.
24The applicant’s family doctor, Dr Stables’s clinical notes and records, indicate that that the applicant went on a camping trip, travelled to Nova Scotia around August/ September 2015, and also flew to Jamaica in December 2016. Dr Stables also saw the applicant over 15 times for issues other than myofascial pain after the accident.
ANALYSIS
25I find that the applicant has not presented any pre-accident medical evidence by a health practitioner to show a pre-existing medical condition. I acknowledge that the applicant had kidney disease/sciatic nerve/hypertension/overweight, but there is no evidence that they prevent maximal recovery under the MIG.
26I find that there is no evidence submitted by a qualified mental health practitioner, to support a finding that the applicant sustained a clinically diagnosed psychological injury, as a direct result of the motor vehicle accident, or had a pre-existing psychological impairment.
27I find that there has been no specific diagnosis by any doctor of Chronic Pain Syndrome, as required by previous case law, to be considered for taking the impairment out of the MIG.4
28The goals of the treatment plans are to: reduce pain, increase range in motion, increase in strength and return to activities of normal living, return to pre- accident wok activities, and return to modified work. Evidence submitted was that the applicant did return to work in September 2015, and therefore would not require further treatment plans.
29There has been no medical evidence led to show that the applicant has sustained loss of range of motion, loss of strength, or could not participate in her pre-accident activities.
30In fact, I find Dr Shemtov’s reports indicated the opposite. His reports indicated that she had full flexion, extension and lateral flexion, that sensory testing of the upper and lower extremity dermatomes was normal bilaterally, that extra ocular movements were normal, that symmetry was maintained, and the remainder of the cranial nerve screen was within normal limits. The applicant also reported to Dr Shemtov to be independent in her personal care tasks, and continues to walk her two dogs.
31I prefer Dr Pintaric’s chiropractic assessment over the other medical reports submitted as his report was consistent with Dr Shemtov’s. His findings of low back pain and thoracic spine pain support the finding that the applicant’s injuries are predominantly minor as defined under the SABS. Dr Shemtov’s assessment was similar. These two doctors were consistent in their findings that the applicant’s injuries were predominantly minor injuries.
32I find therefore that the applicant has failed to prove any impairment sustained from the accident that would take her outside of the MIG, or that she had pre-existing medical conditions that would prevent maximal recovery under the MIG.
33I agree with the respondent’s position that the applicant has also not provided any evidence that the OCF-18 treatment plans submitted on June 11, 2015, and on October 1, 2015, and the goals set out in those plans are reasonable, and necessary as required by the SABS. The goals set out in those OCF’s are inconsistent with the medical findings about the applicant’s condition.
34I find that the applicant is therefore is not entitled to a medical benefit in the amount of $3,132.36 for chiropractic treatment, pursuant to a Treatment and Assessment Plan (OCF18) completed by Health Solutions Clinic and submitted on June 11, 2015?
35I find that the applicant is therefore not entitled to a medical benefit in the amount of $2,968.64 for chiropractic treatment, pursuant to a Treatment and Assessment Plan (OCF18) completed by Health Solutions Clinic and submitted on October 1, 2015
36I find that the OCF-18 treatment plans submitted on June 11, 2015, and on October 1, 2015, and the goals set out in those plan are not reasonable and necessary.
37The applicant claims interest on payment of the disputed treatment plans. Given my decision, no interest is owing.
ORDER
38The application is therefore dismissed.
Released: January 12, 2018
___________________________
Robert Watt, Adjudicator