S.W. v. Aviva Insurance Canada, 2018 CanLII 83500

Licence Appeal Tribunal

Date: 2018-06-13

Tribunal File Number: 17-007110/AABS

Case Name: 17-007110 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.W.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

Counsel for the Applicant:

Val Chowbay

Counsel for the Respondent:

Patrick Sinclair

Written Hearing on:

May 14, 2018

OVERVIEW

1While riding her bicycle on July 3, 2015, S.W. (the “applicant”) was struck by a truck’s passenger-side mirror. The mirror made contact with her head, and the force caused her to fall off her bicycle and break her helmet.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when some of these claims were denied by the respondent.

3The respondent denied the applicant’s claims, because it determined that all of the applicant’s injuries fit the definition of “minor injury”, prescribed by s. 3(1) of the Schedule, and therefore, they all fell within the Minor Injury Guideline² (the “MIG”). If the respondent’s position is correct, the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule.

4As I will explain below, I find that the applicant should not be held to the cap of benefits under s. 18(1). Further, I find that the disputed medical benefits are reasonable and necessary.

ISSUES

5The benefits in dispute are for physiotherapy services from Mackenzie Medical Rehabilitation Centre:

(i) $1,926.00, as recommended in a treatment plan submitted on November 11, 2015;

(ii) $1,494.50, as recommended in a treatment plan submitted on December 23, 2015; and,

(iii) $2,636.00, as recommended in a treatment plan submitted on August 8, 2016.

6The applicant requests interest on any overdue payment of benefits.

ANALYSIS

Minor Injury Guideline

7Section 18(1) of the Schedule limits an insured person’s entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00. The onus is on the applicant to demonstrate—on a balance of probabilities—that she or he should not be held to this cap on benefits.

8Section 3(1) defines a “minor injury” as: “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The MIG provides guidance about how to interpret this definition.

Concussion

9The applicant argues that she did not suffer a minor injury, because the accident left her with a concussion. Therefore, since a concussion is a brain injury, and brain injuries fall outside of the MIG: she should not be held to the financial limit under s. 18(1). In support of this diagnosis, the applicant points to the clinical notes of her family physician. These notes include elevated scores on the Standardized Assessment of Concussion Test-2 (the “SACT-2”), as well as consistent self-reporting of symptoms common to concussions, i.e., headaches, dizziness, confusion, etc.

10The respondent relies on the reports of its assessors to counter the applicant’s argument that she suffered a concussion. These reports include assessments from three general practitioners: i.e., Dr. Neetan Alikhan (dated September 18, 2015), Dr. Michael Hanna (dated March 24, 2016), and Dr. Pravesh Jugnundan (dated September 14, 2016). All three reports found that the applicant suffered from soft tissue injuries and headaches that would fall under the definition of “minor injury”.

11Of particular importance to the respondent’s argument is the report from Dr. Alikhan, wherein the assessor directly challenged the family physician’s diagnosis of a concussion. According to Dr. Alikhan, the medical literature clearly states that symptoms of concussions should appear “at the time of trauma”. Therefore, since the applicant’s family physician did not diagnose her with a concussion during the first, post-accident visit on July 6, 2015, it is not then credible for this medical practitioner to diagnose a concussion several days later. Dr. Alikhan also challenged the family physician’s use of the SACT-2, as it is tool meant for diagnosing sport-related concussions.

12After considering the parties’ submissions and evidence, I have found that the applicant has demonstrated that she suffered a concussion as a result of the accident.

13First, if I were to agree that a concussion must be apparent at the time of trauma, I would have to disregard the applicant’s consistent reporting of concussion-like symptoms following the accident—symptoms that are corroborated by her SACT-2 scores. In my review of the family physician’s notes, it is clear that, from the second visit after the accident, the applicant consistently complained about headaches and other concussion-like symptoms.

14Therefore, to accept Dr. Alikhan’s line of reasoning, I would have to focus my analysis on the following entry in the family physician’s notes (dated July 10, 2015): “[The applicant] started off with general aches and pains with nothing broken, however when reassessed one week after the incident she was starting to exhibit signs of concussion...” While it might have been more persuasive for the family physician to have diagnosed a concussion during the applicant’s first visit, I cannot fault the doctor for focusing on the applicant’s main complaint in the immediate aftermath of the accident, i.e., pain across her head and body.

15Even if I were to accept that a concussion must be apparent at the time of trauma, Dr. Alikhan’s conclusion still disregards the applicant’s emergency room visit the day after the accident. During this visit, the attending physician observed that the applicant was experiencing confusion and difficulty concentrating. While there was no diagnosis of a concussion at this time, this record demonstrates that concussion-like symptoms appeared contemporaneously with the accident.

16The applicant also raised the argument that she suffered from chronic pain and psychological impairments that fall outside of the MIG. Due to my conclusions about her concussion, I do not find it necessary to address these arguments.

17Because I have found that the applicant’s injuries fall outside of the MIG, I must now determine whether the disputed treatment plans are reasonable and necessary for addressing the applicant’s accident-related impairments. Once again, the onus is on the applicant to show, on a balance of probabilities, that each plan is reasonable and necessary.

18The disputed treatment plans all involve modalities of physical therapy (e.g., acupuncture; physical manipulation; exercise, etc.). All three plans list “pain reduction”, “increased range of motion”, and “increase in strength” as goals.

19In support of her argument that these plans are reasonable and necessary, the applicant again points to the clinical notes and records of her family physician, as well as records from a physical medicine and rehabilitation clinic that she was referred to. Specifically, she submits that these records show how her condition deteriorated after the respondent stopped funding this treatment in January 2016.

20The respondent contends that there is no medical evidence linking the proposed treatment plans to her concussion. Further, the respondent notes that the applicant has previously questioned the efficacy of this physical therapy.

21I find that the treatment plans in dispute are reasonable and necessary. Once again, the clinical notes and records of the family physician are useful in conducting this analysis, as they demonstrate that physical therapy assisted the applicant with her accident-related impairments.

22For instance, in the first follow-up visit after being diagnosed with a concussion, the applicant reported feeling better as a result of the physical therapy (dated July 22, 2015): “[G]enerally starting to feel better… attending massage alternate days, chiro daily and has started yoga… still has some headaches however feels that after her holidays next week would like to return to work.” The applicant’s SACT-2 scores also significantly decreased from the first time it was administered, i.e., during the visit on July 10, 2015.

23From this visit onwards, the applicant reported fewer concussion symptoms. Her SACT-2 scores also continued to drop.

24However, after she stopped receiving physical therapy, the family physician’s notes then detailed how the applicant’s symptoms intensified, and her SACT-2 scores increased. The family physician also found that, after this therapy stopped, hot baths, showers, sauna visits, and home exercises were all failing to provide her with relief from her symptoms.

25Taken together, this timeline of symptom reduction and intensification satisfies me that the applicant’s accident-related impairments will be addressed by the physical therapies proposed in the disputed treatment plans. As such, I find that the plans are reasonable and necessary.

26I will note, as the respondent has highlighted, that the applicant has previously questioned the efficacy of this treatment, including in the “Additional Comments” section of the treatment plan in dispute submitted on November 11, 2015. However, considering the significant intensification of symptoms following the end of her physical therapy in January 2016, I am satisfied that, on a balance of probabilities, the proposed treatments will assist the applicant.

CONCLUSION

27I find that the applicant did not sustain predominantly minor injuries that fall within the MIG. As such, the applicant is no longer subject to the financial limit on medical benefits prescribed by s. 18(1) of the Schedule.

28I have found that the disputed treatment plans are reasonable and necessary. Interest is, therefore, due in accordance with s. 51 of the Schedule at the prescribed rate.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Insurance Act”).