17-004325 v Aviva Insurance Canada
Date: 2018-03-29 Tribunal File Number: 17-004325/AABS Case Name: 17-004325 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:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
Adjudicator: Robert Watt
For the Applicant: Laura Meschino, Counsel For the Respondent: Seta Boyadjian, Counsel
HEARD: IN PERSON and in WRITING: January 11, 2018
OVERVIEW
1The applicant was injured in an automobile accident on June 12, 2015, 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”). The respondent denied the applicant’s claim for medical benefits.
3The parties participated in settlement discussions at the case conference held on September 21, 2017, but were unable to resolve all of the issues in dispute between them.
ISSUES IN DISPUTE
4The case conference order dated September 27, 2017 indicates that the following issues are 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 (“MIG”)?
b. Is the applicant entitled to receive a medical benefit of $1,500.00 for a chiropractic assessment by Dr. J. A. Nathanson submitted on August 31, 2015 and denied on September 16, 2015?
c. Is the applicant entitled to receive a medical benefit of $1,353.72 for chiropractic services recommended by Kelly Robazza in a treatment plan submitted on December 14, 2015 and denied on December 17, 2015?
d. Is the applicant entitled to receive a medical benefit of $1,353.72 for chiropractic services recommended by Kelly Robazza in a treatment plan submitted on February 20, 2016 and denied on March 3, 2016?
e. Is the applicant entitled to receive a medical benefit of $1240.80 for chiropractic services recommended by Kelly Robazza in a treatment plan submitted on June 20, 2016 and denied on June 23, 2016?
f. Is the applicant entitled to receive a medical benefit of $1240.80 for chiropractic services recommended by Kelly Robazza in a treatment plan submitted on October 7, 2016 and denied on October 24, 2016?
g. Is the applicant entitled to interest for the overdue payment of benefits?
RESULTS
5I find that the applicant sustained a minor injury as defined under the Schedule. The applicant has also not provided compelling medical evidence to establish that the applicant had a pre-existing medical condition preventing her from achieving maximum medical recovery within the Minor Injury Guideline (MIG) treatment funding limit of $3,500.00, as prescribed by s.18(1) of the Schedule.
6I find that the applicant has not provided any evidence to show that the proposed treatment plans are reasonable and necessary.
7I find that no interest is owing for any overdue payment of benefits.
BACKGROUND
8The applicant was involved in a motor vehicle accident on June 12, 2015. The applicant claims that she hit her head on the head rest and as a result, she suffered temporarily loss of speech, vision, and short term memory. The applicant claims to still have neck spasms, headaches, impaired vision and increased fatigue.
9The applicant returned to teaching in September 2015, which was her profession before the accident. Since the accident and to date, she has attended for periodic chiropractic treatment on her neck.
10On June 15, 2015, the applicant attended at Toronto East General hospital where a CT scan of her head was taken. The result was normal, but she was diagnosed with a possible concussion. On January 5, 2016, the same result was found by neurologist Dr. Marek J. Gawel, after an MRI of the applicant’s head was completed.
11On June 29, 2015, the applicant saw her family doctor, Dr. Eunice Lam. Dr. Lam found that the applicant had normal extra muscle function; normal finger to nose function; normal gait; normal cervical range of motion.
12Dr. Frank Loritz, a general practitioner, examined the applicant on behalf of the respondent, and in his report dated October 23, 2015, noted that the applicant reported to him that she had a 65% improvement in her symptoms. The doctor diagnosed the applicant with myofascial sprain/strain injuries of her cervical spine (WAD 1-11) as well as having a concussion. He opined that the applicant’s post-concussion symptoms would not impact her ability to recover from her physical injuries within the provisions of MIG.
13On May 19, 2016, Dr. Loritz conducted another examination noting that the applicant: was performing her usual work activities; was independent in self-care and grooming; was completing her usual housekeeping tasks; continued to drive; was walking and running on a tread mill; and performing a weight lifting program. The applicant apparently reported to him at this time that she was 75% improved in her symptoms. His second assessment confirmed his previous assessment: that the applicant’s injuries came under the MIG.
14The applicant disagrees with the assessments set out in Dr. Loritz’s reports, but has provided no medical evidence to refute any errors in Dr. Loritz’s assessments.
15The applicant‘s position is that she is still suffering neck pain from the accident. Her life has not been normal because of the pain. The pain prevents her from exercising like she used to, not going out as much to movies or to restaurants and not going to the gym etc. She feels that continuous medical treatment by a chiropractor would assist with her neck pain, as it helps to reduce the pain whenever she sees the chiropractor.
16The respondent’s position is that the applicant falls within the MIG and also that the treatment plans put forth by the applicant are not reasonable and necessary.
ANALYSIS
17The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
18Section 18(2) of the Schedule states that the $3,500.00 funding limit does not apply to insured people if their health practitioner determines and provides compelling evidence that they have a pre-existing medical condition that was documented by a health practitioner before the accident, and that will prevent the insured person from achieving maximal recovery from the minor injury, if they are subject to the MIG funding limit.
19Insurers are required under Section 14 and 15(1) of the Schedule to pay all reasonable and necessary expenses incurred by or on behalf of the insured person. The applicant bears the onus of proving, on a balance of probabilities, that each treatment and assessment plan is reasonable and necessary.1
20There is no medical evidence submitted by the applicant to refute the medical findings noted in the clinical notes and reports of the Toronto East General Hospital, Dr. Lam and Dr. Loritz, which all treat the applicant’s injuries as falling under the MIG.
21All of the treatment plans submitted (OCF-18) by the applicant indicate that the applicant’s injuries fall within the MIG. There is no medical evidence submitted by the applicant (other than her own subjective reports) to indicate that the neck pain that she still experiences is an impairment that affects her functionally, whether physically or psychologically, to possibly take her out of the MIG. The medical reports don’t support her subjective reports.
22The applicant’s own admissions, found in Dr. Loritz’ reports, indicate that she has almost fully recovered. These admissions also support the findings that her injuries fall under the MIG.
23Based on the medical evidence before me and on the applicant’s own admissions, I find that the applicant’s injuries as a result of the accident fall within the MIG.
24I also find that, based on the above evidence, that there is no medical evidence before me to show, on a balance of probabilities, that the applicant has a pre-existing medical condition which would preclude recovery within MIG.
25I also find that there is no evidence before me to address the stated goals of the treatment plans and how the treatment plans will achieve those goals. I therefore find that that the applicant has not submitted any evidence to show that the treatment plans are reasonable and necessary, as required by the Schedule.
ORDER
26The applicant’s appeal is dismissed.
Released: March 29, 2018
Robert Watt, Adjudicator