[The Applicant] v. Aviva General, 2018 CanLII 76417

Date: 2018-04-06

Tribunal File Number: 17-005134/AABS

Case Name: 17-005134 v Aviva General

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.

[The Applicant]

Applicant

and

Aviva General

Respondent

DECISION

ADJUDICATOR: Sandra Driesel

APPEARANCES:

For the Applicant: Nadar Fathi, Representative

For the Respondent: Robert Bowman, Counsel

HEARD: In Writing on January 29, 2018

OVERVIEW

1On December 22, 2015, the applicant was the driver of a vehicle which was struck by another vehicle emerging from a driveway of a plaza. The applicant returned to work within a week following the accident, working regular hours but with modified duties. The applicant sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).

2On the basis of the Disability Certificate (“OCF-3”) completed on January 13, 2016, the respondent approved a plan for chiropractic and massage treatment in the amount of $2,200. The respondent also approved continuing chiropractic and massage treatment on May 4, 2016, in the amount of $1,300. The total of these payments reach the limit under the Minor Injury Guideline (“MIG”) of $3,500.

3Subsequently, the applicant sought additional funding for:

i. A proposed in-house assessment for potential housekeeping and home maintenance benefits; and

ii. Additional chiropractic and massage treatments.

4The respondent denied additional funding in excess of the $3,500 MIG limit, citing that the applicant was not diagnosed with a catastrophic injury as a result of his motor vehicle accident (“MVA”) and he did not purchase optional insurance benefits that would entitle him to further payment. The respondent also references the OCF-3 that concludes that the applicant can return to work on modified hours and duties and there is no inability to perform housekeeping and home maintenance services that were performed before the accident.

5It is the applicant’s position that certain clinical notes and treatment plans share an opinion that he suffered effects from the December 2015 accident that are not contained within the MIG and therefore his requests for additional benefits are reasonable and necessary.

6The respondent relies on the examinations by the three medical experts who all concluded that there was no evidence that the applicant requires physiological or physical treatment beyond what is available within the MIG.

7Because the respondent refused to pay for certain medical benefits, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES IN DISPUTE

8The disputed claims in this hearing are:

i. Do the applicant’s injuries fall within the Minor Injury Guideline?

ii. Is the applicant entitled to a medical benefit in the amount of $1,410.13 for chiropractic services provided by Alliance Diagnostics and Treatments Inc., submitted on February 17, 2016 and denied on March 3, 2016?

iii. Is the applicant entitled to a medical benefit in the amount of $1,297.79 for chiropractic services provided by Alliance Diagnostics and Treatments Inc., submitted on February 17, 2016 and denied on April 20, 2016?

iv. Is the applicant entitled to a medical benefit in the amount of $2,038.46 for chiropractic services provided by Brimley Active Rehab Centre, submitted on August 15, 2016 and denied on August 31, 2016?

v. Is the applicant entitled to a medical benefit in the amount of $1,531.80 for chiropractic services provided by Brimley Active Rehab Centre, submitted on September 195, 2016 and denied on October 7, 2016?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

9Based on the evidence before me, I find that:

i. The applicant sustained a minor injury as defined under the Schedule. The applicant has not provided compelling medical evidence to establish that maximal medical recovery cannot be reached within the MIG treatment funding limit of $3,500, as prescribed by s. 18(1) of the Schedule.

ii. The applicant is not entitled to the medical benefits claimed because he has already exhausted the funding provided under the MIG.

iii. Since no payment is outstanding, the applicant is not entitled to interest.

THE MINOR INJURY GUIDELINE

10The 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 strain, sprain, 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.

11Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500, minus any amounts paid in respect of an insured person under the MIG.

12Section 18(2) of the Schedule makes provision for some 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, which will prevent the insured person from achieving maximal recovery if benefits are limited to the MIG cap.

REASONS FOR DECISION

13Having reviewed the medical evidence regarding the applicant’s injuries, I have determined that the applicant falls within the MIG and is subject to its $3,500 funding limit, for the reasons that follow.

14Following the MVA of December 22, 2015, a Disability Certificate (OCF-3) dated January 13, 2016, was submitted to the insurer. The OCF-3 was completed by Dr. Laura Lui, a Chiropractor with Brimley Active Rehabilitation Centre Inc. She states that the applicant suffers from nervousness, as well as sprain and strain of the following:

i. Thoracic spine;

ii. Lumbar spine;

iii. Sacroiliac joint; and

iv. Shoulder Joint.

15Dr. Lui also determined that the applicant—who was working as a material handler at the time of the MVA—could return to work with modified hours and/or duties. She also indicated that the applicant does not suffer from an inability to perform the housekeeping and home maintenance services that he normally performed before the accident. There is also no evidence within this OCF-3 that the applicant had a current or pre-existing condition or impairment that might affect his ability to return to modified work duties.

16The applicant admits that he did return to work one week after the MVA and was performing modified duties.

DO THE APPLICANT’S PHYSICAL INJURIES FALL WITHIN THE MIG?

17On August 15, 2016, the applicant submitted an OCF-18 completed by Dr. Jia Xue, Chiropractor at the Brimley Active Rehabilitation Centre, proposing additional funding for a total body assessment, additional chiropractic care and physical therapy at a cost of $2,038.46.

18Dr. Xue diagnosed the applicant with the same impairments listed in the original OCF-3 report with the addition of Grand mal seizures. The doctor notes that the seizure, which occurred on August 11, 2016, after the MVA, could affect response to any suggested treatment. Dr. Xue indicated that the applicant’s impairment is not a minor injury as defined in the Schedule and is outside of the MIG. There was no record provided as to what medical evidence was used to support this theory.

19In response to the above assessment, the insurer set up an assessment with Dr. Charanjit Sandhu, an Occupational Medicine Physician. At the time of this assessment, the applicant was still working full-time hours with light duty restrictions as a material handler in a warehouse. Because of his seizure in August 2016 (not related to the MVA), he could no longer drive a forklift. The applicant reported an improvement of symptoms since the MVA but a subsequent accident in March 2016 re-aggravated his injuries.

20Dr. Sandhu conducted various tests on the applicant and concluded that given their nature, the physical injuries originally reported from the December 22, 2015 MVA should have resolved. The doctor did suggest that the applicant follow up with his family doctor for a right knee MRI. Dr. Sandhu determined that the applicant’s injuries would fall within the scope of the MIG.

21On September 19, 2016, the applicant submitted another OCF-18 completed by Dr. Xue, proposing additional funding for a total body assessment, additional chiropractic care and physical therapy at a cost of $1,531.80.

22Dr. Xue diagnosed the applicant as having the same impairments as noted on the previous OCF-18 report of August 15, 2016. Again, the doctor notes that the post-accident seizure could affect response to any suggested treatment and indicated that the applicant’s impairment is not a minor injury. There was no record provided as to what medical evidence was used to support this theory. In this treatment plan, the doctor suggests a different ratio of manipulation and therapy sessions and omits the request for a back support that was in the August plan.

23In response to the above assessment, the insurer set up an assessment with Dr. Alisa Naiman, Physician. During this examination, the applicant reported that he was receiving massage and exercise therapy twice per week until a second MVA on March 4, 2016. His sessions then increased to three times per week. He explained that he attended Brimley Active Rehabilitation Centre twice during the week and Mackenzie Medical once on the weekends. He notes that he went to see his family doctor monthly from the time of the MVA until June or July 2016. There was no diagnostic imaging available from either the original MVA or the post March 2016 MVA.

24After extensive examination, Dr. Naiman concluded that the applicant’s injuries from the December 22, 2015 MVA fall within the MIG and the doctor did not find the proposed OCF-18 of September 19, 2016 to be reasonable or necessary.

25Regarding the above evidence related to physical impairment, I prefer the conclusions of both Dr. Sandhu and Dr. Naiman over that of Dr. Xue because:

i. Dr. Xue failed to provide details of any testing or medical record review to support a conclusion that a post-accident injury is a factor in preventing maximal recovery within the limits of the MIG.

ii. Both Dr. Sandhu and Dr. Naiman presented an extensive report on the various tests performed with the applicant to arrive at their findings and subsequent conclusions.

26The applicant submitted clinical notes and records from Dr. Sam Louli, his family doctor since 1996. Any notes from the date of the accident forward do not suggest any finding of an injury that would necessitate diagnostic testing or a referral for specialized attention. I conclude from this that the doctor did not consider any injuries to be other than minor in nature.

27Based on the above, I am satisfied that the applicant does not suffer from a physical impairment that removes him from the MIG.

DO THE APPLICANT’S PSYCHOLOGICAL SYMPTOMS TAKE HIM OUT OF THE MIG?

28On February 17, 2016, Dr. Rhuel Maano, Chiropractor at Alliance Diagnostics and Treatments Inc., assessed the applicant. Dr. Maano indicates that the applicant suffers from persisting and on-going psychological-related sequelae as a result of MVA-related injuries and this has resulted in difficulties performing his pre-accident housekeeping and home maintenance responsibilities. Dr. Maano lists conditions that may impact the applicant’s recovery:

i. Nightmares and bad dreams,

ii. Sleep difficulties, including trouble falling or staying asleep,

iii. Increased fear or anxiety in or around cars,

iv. Changes in appetite,

v. Increased stress in relationships with others,

vi. Feeling tense, anxious or nervous,

vii. Low energy, including loss of interest in previous activities,

viii. Increased irritability, frustration, or anger, and

ix. Flashbacks or intrusive thoughts of the accident.

29Dr. Maano states that the applicant developed seizures, which he determined were “not related to the MVA”, but that could affect his response to treatment for injuries incurred in the MVA.

30Dr. Maano concludes his assessment with two proposed Treatment and Assessment Plans:

i. An OCF-18 for a home site assessment in the amount of $1,410.13.

ii. An OCF-18 for a functional abilities evaluation in the amount of $1,297.29.

31The insurer denied the OCF-18’s on the grounds that:

i. The applicant is not eligible for housekeeping and home maintenance benefits, as he did not suffer a catastrophic injury and/or did not purchase optional benefits on his policy; and,

ii. The proposed treatments in these OCF-18’s exceed the amount available to the applicant for non-MIG injuries.

32The insurer requested that the applicant undergo a psychological assessment to determine whether the applicant’s injuries fell within the MIG. On April 26, 2016, the applicant underwent a series of psychological tests conducted by Dr. Marc Mandel. The doctor confirmed that the applicant had not attended any psychological treatment in relation to the MVA and had not undergone any other psychological assessments. He noted his family doctor had not made any recommendations for this type of assessment.

33Dr. Mandel states the applicant reported poor sleep, normal appetite, no significant weight change and continued sexual activity with no difficulties. The applicant reported feeling normal with the exception of fatigue and frustration at work. He denied having feelings of hopelessness, suicide or any impairment related to memory, concentration or relationship difficulties. He reported some stress related to his financial situation and some nervous complaints while driving.

34Dr. Mandel determined that no psychological diagnosis is indicated as a direct result of the MVA. He concludes that the applicant did not require psychological services beyond what is available within the MIG.

35Regarding the evidence related to potential psychological impairment, I prefer Dr. Mandel’s conclusion over that of Dr. Maano because:

i. Dr. Maano has presented himself as a licensed Chiropractor and does not reference any accreditation to indicate he has the expertise to diagnose psychological impairment. He also failed to provide details of any testing he did to arrive at his conclusions.

ii. Dr. Mandel is a psychologist with a doctorate in Clinical Health Psychology. He presented an extensive report on the various tests he performed with the applicant to arrive at his findings and subsequent conclusion.

36Based on the above, I am satisfied that the applicant does not suffer from a psychological impairment that removes him from the MIG.

CONCLUSION

37Based on the medical evidence before me, I find that the applicant’s injuries as a result of the December 22, 2015 MVA fall within the MIG. The medical evidence provided by the applicant does not demonstrate, on a balance or probabilities, that the applicant has a pre-existing medical condition or psychological impairment which would preclude recovery within the MIG. The applicant is subject to the funding limit prescribed in the MIG, which he has already exceeded. As a result, the applicant is not entitled to the additional medical benefits sought. Additionally, interest is not payable as there are no amounts owing.

38The applicant’s appeal on all issues in dispute is dismissed.