Tribunal File Number: 17-003554/AABS
Case Name: 17-003554 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:
P.K.
Applicant
and
Aviva Insurance Canada
Respondent
REASONS FOR DECISION
ADJUDICATOR: Thérèse Reilly
APPEARANCES:
Applicant: P.K.
For the Applicant: Laura Meschino, counsel
For the Respondent: James McMurray, representative
For the Respondent: Maggie Morgan, counsel
Court reporter: Karen Mak
In writing and heard by Teleconference: November 20, 2017
OVERVIEW
1The applicant, P.K., sustained injuries as a result of an accident on January 24, 2014 and sought accident benefits from the respondent, Aviva Insurance Canada, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“Schedule”).
2The issue in this appeal is whether the applicant’s injuries are of a nature that they fall outside of the Minor Injury Guideline (“MIG”). The applicant claims that the pre-existing injury to her left knee was worsened by the accident and as a result she is entitled to treatment above the $3500.00 limit imposed by the MIG. The applicant also raises the argument that the respondent failed to deny the treatment plan within the required timelines as per section 38 of the Schedule or provide sufficient reasons for the denial. As such, the respondent is prohibited from raising the MIG issue. The treatment plan in dispute is deemed reasonable and necessary.
3The respondent denied the applicant’s claim for a medical benefit for chiropractic services on the basis that the injuries sustained are minor and fall within the MIG. The evidence did not establish that the pre-existing knee injury impedes maximal recovery. The respondent maintains it denied the treatment plan within proper timelines and with sufficient reasons as required by section 38 of the Schedule. The treatment plan is not reasonable and necessary.
4A written hearing and hearing by teleconference were conducted to address the dispute. The applicant provided evidence by way of cross-examination. Both parties submitted documentary evidence. I have considered all of the evidence submitted and conclude that the applicant is not entitled to the amount claimed, for the reasons that follow.
ISSUES IN DISPUTE:
5The issues in dispute to be decided are as follows:
i. Is the respondent’s denial of the treatment plan in compliance with the requirements of section 38 of the Schedule?
ii. Did the applicant sustain an injury that is predominantly minor and falls within the MIG?
iii. Is the applicant entitled to the amount of $1,328.20 for chiropractic services, recommended by Healthmax Physiotherapy, submitted August 18, 2016, and denied August 25, 2016?
iv. Is the applicant entitled to interest for any overdue payment of benefits?
RESULT
6The respondent’s denial of the disputed treatment plan complies with the requirements of section 38 of the Schedule.
7I find that the applicant suffered predominantly minor injuries as a result of the accident. She suffers from a pre-existing injury to her left knee that was made worse by the accident; however, the applicant did not establish that the pre-existing injury will prevent maximal recovery and as such she is subject to the limit under the MIG.
8The applicant is not entitled to the benefit in dispute. The treatment plan in dispute is not reasonable and necessary.
9No interest is payable as there are no overdue payments.
BACKGROUND
The Accident and Claim
10[The applicant]. sustained injuries as a result of an accident on January 24, 2014. The applicant’s claim for a medical benefit for chiropractic services was recommended by Dr. Somanath, chiropractor, from Healthmax Physiotherapy in the amount of $1,328.20. The evidence of the applicant at the hearing confirmed that the treatment plan for chiropractic services has not yet been incurred.
11The applicant saw the chiropractor to obtain treatment for her ongoing pain in the left knee. Dr. Somanath noted in the treatment plan that as a result of the accident, the applicant suffered an injury to her neck and upper back, left knee and a laceration to the lips. With the exception of the left knee, all of these injuries had resolved by the date of the treatment plan in August 2016.
Left Knee Pain
12The applicant received some physiotherapy treatment after the accident for the left knee pain. In June 2016, she attended an initial assessment at Healthmax Physiotherapy to obtain further treatment on her left knee. In August 2016, more than two years after the accident, Dr. Somanath recommended an active treatment plan for chiropractic treatment to reduce the left knee pain. In the treatment plan in dispute is dated June 16, 2016 and was submitted to the respondent on August 13, 2016, Dr. Somanath acknowledges that the applicant had pre-existing left knee pain which was documented in the family doctor’s notes of November 16, 2013. However, an X-ray completed on November 23, 2013 showed no bone, joint or soft tissue abnormality.2 In the treatment plan, Dr. Somanath concluded that the pre-existing injury to the left knee would be a barrier to maximal recovery but provided no further explanation
13The applicant argues that her injury to the left knee — which was ongoing at the time of the hearing — and the laceration to the lips — which has left a permanent scar — are not minor injuries as defined by the MIG. Further, due to the pre-existing injury to the left knee, treatment should not be restricted to the MIG limits. No evidence was presented at the hearing to establish that the $3,500 MIG limit has been exhausted.
14The applicant submits the injury to the left knee is a barrier to maximal recovery due to the pre-existing pain made worse by the accident.3 The treatment plan in dispute as such is reasonable and necessary. In support of her claim, the applicant relies on the medical evidence of her family doctor, Dr. Jacqueline Poppen, and Dr. Sue A Quan, an orthopaedic surgeon.4
15The applicant testified that after the accident, she was taken by ambulance to the Mackenzie Health Hospital, where she reported left knee pain and was bleeding from her face. An X-ray of her left knee, taken at that time, shows no bone fracture, only soft tissue injuries.5
16On February 8, 2014, she saw Dr. Poppen and was assessed with a left knee strain. An X-ray of the left knee was taken again and showed no fracture. On March 10, 2014, she saw Dr. Poppen again for the ongoing left knee pain. In the clinical notes, Dr. Poppen indicated that the applicant had left knee pain for the previous six months. Dr. Poppen referred the applicant to Dr. Quan, an orthopaedic surgeon, to assess if the left knee pain is “patellofemoral” syndrome.
17The applicant saw Dr. Quan once on March 25, 2014. She was diagnosed with chondromalacia patella in the left knee.6 The applicant submits this condition is not one of the listed conditions in the MIG and as such it falls outside of the definition of a minor injury. In her report of March 25, 2014, Dr. Quan states that the left knee was bruised. Several follow up appointments were scheduled with Dr. Quan. On cross-examination, the applicant could not recall if she missed these appointments. The respondent entered into evidence a letter from Dr. Quan, where the doctor acknowledges three scheduled appointments the applicant did not attend.7
18Dr. Quan’s report8 does not provide a medical opinion stating that, as a result of this injury, the applicant is out of the MIG. In cross-examination, the applicant acknowledged that she told the surgeon that she had left knee pain one year prior to the accident.
19The pre-existing left knee pain was documented by the family doctor in November 2013, two months before the accident.9 The applicant testified during cross-examination that prior to the accident she had trouble climbing stairs, with her knee giving away when she climbed the stairs. She testified that she could hear clicking noises in her left knee when she walked. The X-ray results from November 2013 were normal and did not show any bone fracture or torn ligament. In cross-examination, the applicant could not recall if the X-ray showed any tear in the ligament. She testified that she could play sports prior to the accident, but with the knee injury, she has not played as many sports as she used to.
20Dr. Quan noted in her report that the applicant had also injured her left knee in Grade 2. The left knee injury had resolved until approximately one year prior to the accident.
Lip Laceration
21As to the second injury which the applicant claims takes her out of the MIG, she states in her affidavit that the laceration to her lips, which has left a permanent mark, has caused her anxiety and discomfort.10 She states she cannot play the clarinet as she used to before the accident. She acknowledged during her testimony that she never reported this injury to her family doctor. She agreed she was not referred to a specialist for this condition and her family doctor did not prescribe pain medication for this condition.
22Also, in the treatment plan in dispute, Dr. Somanath states that all injuries other than the left knee had resolved.
23I also find that the “laceration” falls within the definition of a minor injury as set out below. I find there is insufficient evidence presented by the applicant to support the position that the laceration to her lips takes her out of the MIG. The remainder of the decision will deal only with the left knee pain and compliance with section 38 of the Schedule.
Compliance with section 38 of the Schedule
24The applicant submits the respondent failed to provide notice of the denial of the treatment plan within the ten days required by section 38 (8) of the Schedule.11 The treatment plan was submitted August 13, 2016 and it was denied by the insurer on August 25, 2016.12 I agree based on the evidence presented that the disputed treatment plan was denied within the 10 business days required under section 38 of the Schedule.
25The applicant raises non-compliance by the respondent with Section 38 (8) for not providing sufficient reasons for the denial of the treatment plan. The August 25, 2016 explanation of benefits stated that “Prior insurer examinations have indicated that there is no medical evidence to establish that your injuries should be out of the MIG”. The denial the applicant submits did not identify which insurer examination was being relied on.
26The applicant in reliance on the decision of the Tribunal in R.H. v. TD Insurance Meloche Monnex13 states that as a result under Section 38 (11), the respondent is 1) prohibited from taking the position that MIG applies14 and 2) is required to pay for the goods and services regardless of whether the treatment plan is reasonable and necessary.
27Section 38 (11) states that if the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:
a) The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
b) The insurer shall pay for all the goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
28I find the reasons for the denial that were provided were sufficient. The explanation of benefit provided the reason for the denial based on a prior insurer examination which had concluded there was no evidence that the injuries sustained were not predominantly minor and to be treated outside of the MIG. While the explanation of benefit could have been more detailed, it did outline the reason for the denial and position that MIG applied.
Respondent’s Position
29The respondent’s denial of the treatment plan is based on the position that the left knee pain is minor and therefore subject to the $3,500 cap on treatment, pursuant to section 18 of the Schedule. The respondent relies on the insurer examination of the applicant completed by Dr. Gelman on May 1, 2014.15 In his report, Dr. Gelman concluded that the treatment plan was not reasonable and necessary. He refers to the pre-existing condition but in his medical opinion, there is no medical reason that her pre-existing injury would require treatment outside of the MIG. The pre-existing knee injury did not impact her accident-related injury.
30The respondent argues that the pre-existing knee pain is well-documented before the accident by the family doctor and no evidence was presented by the applicant to establish that the left knee injury will preclude her from reaching maximal recovery.
31The respondent submits that the onus16 is on the applicant to present compelling evidence that her pre-existing injury is such that it impedes maximum medical recovery. The respondent submits that she has not presented such evidence. For the reasons set out, I concur.
Does the Applicant’s left knee injury take her out of the MIG?
32Section 18(1) of the Schedule limits recovery for a medical or rehabilitation benefit to a person “who sustains an impairment that is predominately a minor injury” to $3,500, minus any amounts paid in respect of an insured person under the MIG.
33Section 18(2) of the Schedule makes provision for insured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500.17 To access the increased benefits, the insured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition that was documented before the accident, and that will prevent the insured person from achieving maximal recovery from the injury if they are subject to the MIG limits.
34“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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3.
35Although the evidence establishes that the applicant had a pre-existing condition which she claims was made worse by the accident, I find the applicant has not met her burden of proof to establish that the pre-existing injury is of a nature that it would prevent her from reaching maximal recovery. The evidence of Dr. Poppen refers to ongoing knee pain but neither the family doctor nor Dr. Quan state that the MIG would prevent her from reaching maximum recovery. This is further supported by the medical opinion of Dr. Gelman that her pre-existing knee injury did not impact her accident-related injury.
36The X-rays taken before and after the accident — including in November 2013, on the day of the accident at Mackenzie Health Hospital and again after the accident — show no bone fractures and only soft tissue injuries, which fall within the definition of minor injury in the MIG.
37There are no further clinical notes of Dr. Poppen or Dr. Quan after March 2014 that refer to ongoing pain complaints in the left knee. The treatment plan in dispute is dated two years after the accident. I concur with the respondent that the applicant has not presented evidence to refute the position of Dr. Gelman that the applicant falls within the MIG.
38In her submissions, the applicant questions the validity of Dr. Gelman’s report in that it was based on an examination of the applicant several months after the accident and prior to the treatment plan in dispute. Further, the applicant argues that Dr. Gelman was not provided with the clinical notes of the family doctor and therefore did not have the full benefit of the medical documents in front of him at the time of his assessment of the applicant. I disagree with this position. Dr. Gelman indicates that he had the benefit of Dr. Quan’s report, X-ray results at the time of his report and he physically examined the applicant as well. He noted the ongoing left knee pain but found the injury to be minor and stated that additional treatment, as suggested in the treatment plan, would not assist the applicant with the left knee condition. In his view, the treatment plan is not reasonable and necessary.
39I do not agree with the applicant that Dr. Gelman’s report is not valid, as it is based on an examination of the applicant prior to the date of the disputed treatment plan. The onus is on the applicant to present compelling evidence that her pre-existing injury is such that it impedes maximum medical recovery. She has not presented such evidence.
40I find the knee injury is minor. I further find that the applicant does not suffer from a pre-existing medical condition that would take her out of the MIG on the basis that it would prevent her from reaching maximal recovery. The applicant failed to establish that the left knee injury prevents her from reaching maximal recovery.
Is the respondent required to pay for the treatment in dispute as it is reasonable and necessary?
41The treatment plan in dispute is not incurred. The obligation to pay under section 38(11)(2) relates to goods and services incurred between the date of a defective notice and the date of a proper notice. As such, there is no obligation of the respondent to pay for the treatment plan.
42I also disagree that one of the consequences of non-compliance with section 38 (11) stated by the applicant that the treatment plan is to be deemed reasonable and necessary. This position is not consistent with the wording of section 38 (11) and no case law was presented by the applicant in its submissions to support this position.
43The applicant in its submissions stated the treatment was needed to ensure the applicant reaches the appropriate level of recovery. No evidence was presented however from of the family doctor and Dr. Quan that the treatment plan is reasonable and necessary. There is also the evidence of Dr. Gelman that the treatment in dispute would not assist the applicant with the left knee injury and the applicant’s pre-existing knee injury did not impact her accident-related injury. I find there is insufficient evidence to find that the treatment is reasonable and necessary.
44I find that the applicant is not entitled to payment of the treatment plan in dispute on the basis that the applicant failed to establish the treatment plan is reasonable and necessary.
CONCLUSION
45For the reasons outlined above, I find that the respondent is in compliance with section 38 (11) of the Schedule.
46The applicant’s injuries are minor and fall within the MIG. There is no evidence to establish the knee injury impedes maximal recovery.
47The applicant is not entitled to receive $1,328.20 for the chiropractic services because the treatment plan is not reasonable and necessary.
48Interest is not payable as there are no overdue amounts.
Released: March 6, 2018
Thérèse Reilly, Adjudicator
Footnotes
- O. Reg. 34/10.
- Respondent’s written submissions, paragraph 3. Applicant’s written submissions, paragraph 7 and Tab D.
- Ibid., paragraph 17 to 20.
- Ibid., paragraph 16. See also, Dr. Poppen’s clinical notes, Tab 2a.
- Ibid., paragraph 7, Tab 2a, page 40. Respondent’s written submissions, paragraph 3.
- Report of Dr. Quan, dated March 25, 2014. Applicant’s written submissions, paragraph 16 c, Tab B. Respondent’s written submissions, paragraph 6.
- Ibid., paragraph 6.
- Report of Dr. Quan, dated March 25, 2014. Respondent’s written submissions, Tab 2b, page 44.
- Applicant’s written submissions, Tab 2a, Affidavit of the applicant, paragraph 6.
- Affidavit of the applicant, sworn October 16, 2017, paragraphs 4, 11 and 12.
- Written submissions of the applicant, paragraphs 36, 37.
- Written submissions of the respondent, paragraph 7.
- Tribunal file: #16-000634/AABS.
- Ibid., paragraph 38.
- Section 44 assessment by Dr. Gelman, dated May 21, 2014, respondent’s written submissions, paragraphs 7 and 8, and Tab G.
- Respondent’s written submissions, paragraph 14. See also, the Tribunal decisions Shabbir and State Farm Mutual Automobile Insurance, 16-000084, August 30, 2016 and K.P. and Aviva Insurance Company, 16-000046, September 1, 2016.
- Applicant’s written submissions, paragraph 15. Respondent’s written submissions, paragraph 13.