Tribunal File Number: 17-003571/AABS
Case Name: 17-003571 v Certas Direct 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:
T. T.
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
Adjudicator: Sandeep Johal
APPEARANCES:
Counsel for the Applicant: Dharshika Pathmanathan
Counsel for the Respondent: Roger Sawh
Heard in writing on: November 9, 2017
OVERVIEW
1The applicant was injured in an automobile accident on March 4, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant applied for medical benefits that were denied by the respondent because she was placed into the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
3The following are the issues to be decided as per the case conference order dated August 30, 2017:
i. Do the applicant’s injuries fall within the MIG? If the answer to issue one is no, then:
ii. Is the applicant entitled to a medical benefit in the amount of $120.36 from a partially approved treatment plan for chiropractic services from Physio Fix and Fitness, submitted on June 3, 2015?
iii. Is the applicant entitled to a medical benefit in the amount of $4,124.42 for chiropractic services from Physio Fix and Fitness, submitted on July 9, 2015?
iv. Is the applicant entitled to a medical benefit in the amount of $4,470.35 for chiropractic services from Physio Fix and Fitness, submitted on September 15, 2015? and
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4Based on the totality of the evidence before me, I find:
I. The applicant’s injuries fall within the MIG and it is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest.
ANALYSIS
Applicability of the Minor Injury Guideline
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.
6Section 18(2) of the Schedule provides 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.
7In the decision of Scarlett v. Belair Insurance2, the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish his entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities
Did the applicant sustain a predominately minor injury?
8I find that the medical evidence before me indicates the applicant sustained an impairment that is predominantly a minor injury.
9The applicant visited Dr. Vu, her family doctor, on March 5, 10 and 31, 2015. Dr. Vu diagnosed the applicant with “multiple soft tissue injury” and “severe muscle strain to neck and back” and for the applicant to stay at home from her job.
10The applicant’s treating chiropractor, Dr. Tran, completed a treatment confirmation form (OCF-23) on March 12, 2015 and he lists the applicant’s injuries to be sprain/strain of the lumbar, cervical and thoracic spine, and rotator cuff syndrome along with headache, dizziness and giddiness. Dr. Tran lists the same injuries in the treatment and assessment plans (OCF-18’s) dated June 2, 2015, July 7, 2015 and September 14, 2015.
11The applicant’s family doctor completed the Disability Certificate (OCF-3) dated March 21, 2015 and he lists the applicant’s injuries as “severe neck strain”, “back strain” and “post-injury headache.”
12The applicant submitted an x-ray of her spine dated March 5, 2015 where Dr. Leung’s impression is that the applicant has “very mild scoliosis” which “could be due to muscular spasm.” Then on March 10, 2015 another x-ray was taken and Dr. Leung’s impression is that the applicant has “loss of cervical lordosis” (loss of curvature) which “could be due to muscular spasm.”
13Based on the evidence from the applicant’s family physician Dr. Vu, her treating chiropractor and her x-ray results, I find the applicant’s injuries to be predominantly minor and within the definition of section 3(1) of the Schedule. Despite the applicant’s strain being characterized as “severe”, I find this is still a strain which is within the definition of the MIG.
14The applicant submits that she required additional treatment for her soft tissue injuries because of the abnormal curvature in her back and loss of the regular curve in her neck. This may be true, however, once the $3,500 is exhausted from the MIG monetary limit, the only way to have access to the additional treatment limits is to provide evidence that the injuries are outside of the MIG, and it is my finding that the applicant’s injuries are within the definition of the MIG.
15Although the applicant did not provide any submissions of injuries that may fall outside of the MIG, I note that the treatment and assessment plan (OCF-18) submitted by Dr. Tran dated June 23, 2015 and August 31, 2015, wherein he states that the applicant has “psychological yellow flags” which would preclude the applicant from the MIG. I will now discuss whether the applicant has a psychological injury that would take her outside of the MIG.
Does the applicant have psychological injuries?
16I find the applicant does not have a psychological diagnosis that would take her outside of the definition of the MIG for the following reasons.
17Dr. Tran is a chiropractor and I do not give much weight to a chiropractor to provide a psychological diagnoses.
18I am not provided with any submissions or evidence of any testing that was done to confirm whether the applicant does in fact have any psychological issues. Dr. Tran merely mentions that the applicant has self-reported that she has “some psychological yellow flags (sleep disturbances due to overthinking, stress and discomfort from soreness).” The evidence with respect to the potential psychological impairment comes from the applicant’s self-reporting. In the absence of any other supporting evidence of a psychological condition, I am unable to assign much weight to self-diagnosis alone.
19As I have determined that the applicant has not met her burden of proof to show that she has psychological or other injuries that would take her outside of the MIG, I will now discuss whether the applicant had any pre-existing injuries that may take her outside of the MIG.
Does the applicant have any pre-existing injuries?
20If the applicant’s injuries fall within the definition of the MIG, the applicant can still be considered to be out of the MIG in accordance with section 18(2) of the Schedule. In order to do so, the applicant must meet all three of the following requirements in order to escape the MIG under this section:
a) There was a pre-existing medical condition;
b) The pre-existing medical condition was documented by a health practitioner before the accident; and
c) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.
21I find that the applicant has not satisfied her onus and has not provided compelling evidence that any of the three criteria above apply. The applicant’s position is that her injuries should be considered outside of the MIG because of her joint pain which has been aggravated by her job demands and from x-rays that show the applicant to have a “loss of cervical lordosis” in her back which “could be due to muscular spasm.” The applicant further submits that “scoliosis (abnormal curve in her back) is also sometimes a pre-existing condition.” I am giving little weight to this evidence for the following reasons.
22I am not provided with any medical evidence that the joint pains were exacerbated as a result of the accident and that this condition prevents the applicant from achieving maximal medical recovery if subjected to the MIG limits.
23The applicant’s family doctor, Dr. Vu, who completed the Disability Certificate (OCF-3) dated March 21, 2015, check-marked the “No” box next to the question of whether the applicant has any disease, condition or injury prior to the accident.
24The x-ray of the applicant’s back was taken on the date of the accident and shortly thereafter and I do not have any submissions or evidence to show that the impressions noted by Dr. Leung from the x-ray are as a result of the accident. Furthermore, not only were the x-rays taken after the date of the accident, I also do not have evidence that this would prevent the applicant from achieving maximal medical recovery if the applicant is subjected to the $3,500 treatment limit under the MIG.
25Lastly, and although no submissions were made on this point by the applicant, the applicant’s chiropractor, Dr. Tran, submitted a treatment and assessment plan (OCF-18) dated June 2, 2015 and noted that the applicant had a pre-existing injury and “was being investigated for possible thyroid and liver issues.” A treatment plan alone is not evidence and I was not directed to any other evidence or documentation of thyroid or liver issues prior to the accident, or whether they would prevent the applicant’s recovery under the MIG.
26The onus is on the applicant to prove their entitlement. It is my finding that that the applicant has not met her onus to show her injuries are outside of the MIG and therefore, there is no need for me to conduct an analysis of whether the treatment plans are reasonable and necessary. Accordingly, no interest is payable.
CONCLUSION
27For the reasons outlined above, I find that:
a. the applicant sustained predominately minor injuries that fall within the MIG; and
b. the applicant has not established that she has a pre-existing medical condition that prevents recovery under the MIG and therefore the applicant is not entitled to the treatment plans or the interest that is in dispute for this application.
Released: February 14, 2018
Sandeep Johal, Adjudicator