Tribunal File Number: 17-005998/AABS
Case Name: 17-005998 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:
S.S
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
Counsel for the Applicant: R.P. O’Connor
Counsel for the Respondent: Maggie Morgan
Written Hearing on: April 9, 2018
OVERVIEW
1The applicant (“S.S.”) was injured in an automobile accident (“the accident”) on February 11, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). S.S. applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent (“Aviva”).
2Aviva denied S.S.’s claims because it determined that all of her injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline2 (“the MIG”). S.S.’s position is exactly the opposite.
3If Aviva’s position is correct, then S.S. is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether the claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
ISSUES
4Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?
5If the applicant’s injuries are not within the MIG, then I must determine the following issues:
i. Is the applicant entitled to receive a medical benefit in the amount of $200.00 ($1,300.00 less the partially approved amount of $1,100) for chiropractic treatment pursuant to a Treatment and Assessment Plan (OCF-18) completed by Mackenzie Medical Rehabilitation Centre, submitted on May 20, 2016 and denied on June 6, 2016?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,027.00 for chiropractic treatment pursuant to a Treatment and Assessment Plan(OCF-18) completed by Mackenzie Medical Rehabilitation Centre, submitted on July 14, 2016 and denied on September 26, 2016?
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,418 for chiropractic treatment pursuant to a Treatment and Assessment Plan(OCF-18) completed by Mackenzie Medical Rehabilitation Centre, submitted on September 27, 2016 and denied on October 11, 2017?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that S.S’s injuries fall within the MIG. It is therefore unnecessary to consider whether the treatment plans are reasonable or necessary or determine whether interest is payable.
ANALYSIS
The Minor Injury Guideline
5Section 3(1) of the Schedule defines a “minor injury” 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 and includes any clinically associated sequelae to such an injury.” The Schedule also defines these terms for injuries.
6Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.
7The onus is on S.S. to show that her injuries fall outside of the MIG3 and that those injuries are not minor in nature.
Did S.S. sustain predominantly minor physical injuries?
8In support of her claim, S.S. submits an OCF-3 (“disability certificate”) dated March 2, 2016, completed by Angel Russi, Chiropractor. The disability certificate indicated S.S. suffered from “cervicalgia, low back pain, pain in thoracic spine”, generalized dislocation, sprain and strain of joints and ligaments of “shoulder girdle, thorax, lumbar spine and pelvis, other anxiety disorders and headaches”. The disability certificate further indicates the anticipated duration for recovery is 9-12 weeks.
9The information in this OCF-3 provides no evidence that the applicant’s injuries are anything other than minor, particularly in light of the fact that Mr. Russi anticipates the duration of the applicant’s disability to be between 9 and 12 weeks. There are no treatment plans before me that relate to any of the recommendations of Mr. Russi.
10Additionally, S.S. has provided me with clinical notes and records of Dr. Pamela Liu, Family Physician. Dr. Liu is the treating family physician that S.S. sees on a regular basis, therefore, I consider Dr. Liu the most knowledgeable of S.S.’s medical history and present condition. In a letter dated January 19, 2018, Dr. Liu indicates the “letter is to summarize S.S.’s chronic pain. My understanding is that she suffers from chronic lower back pain that she attributes to a car accident from 2016”. Dr. Liu makes no reference to any objective testing conducted to support a chronic pain diagnosis. I can only conclude that Dr. Liu did not perform any objective testing to come to formulate her opinion about S.S.’s present complaints. Further, in her letter, Dr. Liu indicates S.S.’s first accident-related visit was on March 1, 2016, approximately 15 days post-accident. Dr. Liu notes that in the 5 visits since March 1, 2016, “not all of them (the visits) are related to the subject accident”. I find that S.S.’s visits indicate that the accident-related injuries were minor in nature. There were no increases in visits to Dr. Liu, post-accident, and as indicated in Dr. Liu’s letter, not every visit was accident-related.
11Dr. Liu’s letter references a June 2016 visit, in which S.S. acknowledged she wasn’t doing home exercises as regularly as she had been advised by her physiotherapist. Further, S.S. reported she was not taking her prescription of naproxen properly, which Dr. Liu notes can have potentially serious gastrointestinal side effects. Dr. Liu continues, that at a February 2017 visit (the next visit after the June 2016 visit), S.S. is still taking the naproxen improperly, yet still presenting with pain complaints. It is unclear from Dr. Liu’s letter whether the stomach upset is due to improper use of the naproxen. Dr. Liu ordered an x-ray of S.S.’s lower spine, which was not done until December 2017, and according to Dr. Liu, “showed only mildly degenerative changes”. Dr. Liu goes on to note that “it is hard to say whether these are related to the accident or not.” Dr. Liu concludes in the letter that she is unable to determine what is causing S.S.’s back pain.
12Dr. Liu’s letter does not support that the subject accident has caused S.S. to suffer injuries that are not minor in nature. Further, there is no compelling evidence from Angel Russi or Dr. Liu that confirms S.S. suffers from chronic pain. It is not enough that “chronic pain” is referenced in a disability certificate or letter. There must be clear, objective evidence, obtained through diagnostic testing that concludes a person suffers from chronic pain. This matter does not contain such objective evidence.
13The disability certificate supports the injuries sustained by S.S. are minor in nature. Combined with the letter from Dr. Liu, I am presented with enough compelling evidence to conclude that S.S. has sustained minor injuries from the subject accident. As a result, S.S. has not satisfied her onus of proving that she has suffered anything but minor injuries as a result of the subject accident.
14The applicant is limited to the $3,500.00 limit under the MIG, which has been exhausted, and I therefore do not need to address the question of whether the treatment plan is reasonable and necessary.
CONCLUSION
15For the reasons outlined above, I find that:
i. S.S. sustained predominantly minor injuries that fall within the MIG. Accordingly, S.S. is not entitled to payment for the treatment plan claimed in this application. Her application is dismissed.
Released: June 04, 2018
___________________________
Derek Grant, Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635 para.24