F.A. v Aviva Insurance Canada
Tribunal File Number: 17-005508/AABS
Case Name: 17-005508 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:
F.A.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Melody Maleki-Yazdi
APPEARANCES:
Counsel for the Applicant: Jonathan White
Counsel for the Respondent: David E.W. Koots
Heard in writing on: March 22, 2018
OVERVIEW
1F.A. (“the applicant”) was injured in an automobile accident on July 16, 2014 (“the subject accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2Aviva Insurance Canada (“the respondent”) denied the applicant’s claims on the basis that all of the applicant’s injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline2 (“the MIG”). The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3If the applicant’s position is correct, then I must address if the medical treatment claimed is reasonable and necessary.
4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by section 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.
ISSUES TO BE DECIDED
5The following are the issues to be decided:
i. Did the applicant sustain predominantly minor injuries as defined by the Schedule?
ii. If the applicant’s injuries are not within the MIG, then I must determine the following issues:
a. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,816.74 for chiropractic treatment and massage therapy recommended by Complete Rehab Centre in a treatment plan (OCF-18) dated April 8, 2015, and denied on August 25, 2015?
b. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $535.70 ($1,591.12 less the partially approved amount of $1,055.42) for chiropractic treatment and massage therapy recommended by Complete Rehab Centre in a treatment plan (OCF-18) dated December 15, 2015, and denied on January 6, 2016?
c. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,365.50 for chiropractic treatment, massage therapy and physiotherapy treatment recommended by Complete Rehab Centre in a treatment plan (OCF-18) dated June 22, 2016, and denied on August 30, 2016?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to determine whether the treatment plans are reasonable and necessary, or the issue of interest.
ANALYSIS
Applicability of the Minor Injury Guideline
7The term “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 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.
8Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.
9The onus is on the applicant to show that his injuries fall outside of the MIG.
Did the applicant sustain predominately minor injuries?
10Prior to the subject accident currently before the Tribunal, the applicant was involved in a previous motor vehicle accident on December 28, 2012 (“the first accident”).
11I find that the applicant’s accident-related injuries are predominantly minor injuries.
12In the applicant’s submissions, he does not argue that any particular physical impairments sustained from the subject accident remove him from the MIG. His evidence and submissions indicate that he requires additional treatment because his impairments have been persistent and long-lasting as a result of the first accident and had not yet resolved by the time of the subject accident. It is on this basis that he argues that his impairments fall outside of the MIG.
Does the applicant have pre-existing injuries or chronic pain sufficient to escape the MIG?
13Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be exempted from the MIG, the applicant must provide compelling evidence meeting all three of the following requirements:
i. There was a pre-existing medical condition;
ii. The pre-existing medical condition was documented by a health practitioner before the accident; and
iii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.3
14The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG. The Schedule requires compelling evidence to be provided using the treatment plan (OCF-18) with attached medical documentation, if any, prepared by a health practitioner.
15I note that the applicant submitted the disputed treatment plans along with his reply submissions. It is my position that the applicant is not adducing any new evidence by doing so. Rule 3.1 of the LAT Rules of Practice and Procedure set out that the rules can be liberally interpreted and applied. By allowing the disputed treatment plans as evidence, there is no prejudice to the respondent as they are aware of the treatment plans and make reference to the plans in their responding submissions.
16For chronic pain to fall outside of the MIG, the applicant must be suffering from severe, persistent and constant pain. The pain must cause the applicant to have a functional impairment adversely affecting his activities of daily living.
17The applicant submits the following in support of his claim that he has pre-existing injuries or chronic pain:
i. The applicant consistently reported similar pain symptoms after both accidents as documented by Dr. Kofi Wudom (the applicant’s family doctor) and in the Complete Rehab Centre physiotherapy reports;
ii. After the first accident, Dr. Wudom diagnosed the applicant with chronic pain on April 4, 2013. After the subject accident, he diagnosed the applicant with chronic lower back pain on August 21, 2015; and
iii. Dr. Wudom, Dr. Rahim Jessa (chiropractor at Complete Rehab) and an insurer’s examination (“IE”) assessor, Dr. Michael Hanna (general practitioner), all conclude that the applicant had unresolved pre-existing injuries at the time of the subject accident. Both Dr. Jessa and Dr. Hanna stated that the subject accident exacerbated the applicant’s injuries from the first accident.
18To rebut the applicant’s claim, the respondent relies on the following:
i. In support of the position that the applicant’s injuries had fully resolved by the time of the subject accident (July 16, 2014), the applicant returned to his job as a machine operator on November 18, 2013 as documented in Dr. Wudom’s clinical notes and records;
ii. The first IE assessor, Dr. Allan Kopyto (general practitioner) concluded that there was no objective or compelling evidence to support that a pre-existing condition would prevent maximal recovery. The second IE assessor, Dr. Hanna, concluded that the applicant’s pre-existing history would not affect his recovery from the injuries sustained as a result of the subject accident; and
iii. The applicant told both of the respondent’s IE assessors that his injuries from the first accident had fully resolved by the time of the subject accident. Dr. Kopyto indicated in his General Practitioner Assessment dated January 13, 2015 that the applicant had reported that he “fully recovered from those injuries.” Dr. Hanna indicated in his General Practitioner Assessment dated August 18, 2016 that the applicant stated he “was not experiencing any residual symptoms at the time of the subject accident.”
19I note that the applicant raised the issue that Dr. Hanna’s report does not mention that a Twi language interpreter was present during the assessment suggesting that the applicant may not have understood the questions posed to him. This statement is not correct as there is reference on page 12 of Dr. Hanna’s report that a translator was present during the assessment. Therefore, I find that the applicant understood the questions posed to him as translated by the interpreter.
20After reviewing the parties’ submissions and evidence, I find that the applicant’s injuries from the first accident had resolved in the months prior to the subject accident. Furthermore, I find that the applicant does not suffer from chronic pain such that he should be removed from the MIG. The pain experienced by the applicant does not appear to be severe and constant. Furthermore, I have not been provided with evidence that the pain causes a functional impairment. I have come to these findings based on the medical evidence before me, including as follows:
i. Following the first accident on December 28, 2012, the applicant returned to work on November 18, 2013. This indicates to me that the applicant’s functional ability had likely improved by the time he returned to work.
ii. The applicant continued to attend physiotherapy after the first accident until May 27, 2014 (50 days before the subject accident). The notation from this appointment is that the applicant was “responding well to ongoing and active exercises in gym.” At his prior appointments, the records from Complete Rehab Centre referenced the applicant’s pain or soreness. At this last appointment, the note instead focuses on how the applicant was responding well and there is no reference to any pain or soreness.
iii. During the IE assessment with Dr. Kopyto on January 2, 2015, the applicant reported that he had sustained injuries from the first accident, but that he was treated with physical therapy and that he fully recovered from those injuries. He further stated that he was in good overall health prior to the subject accident. In relation to his employment status, he indicated that he works full-time.
iv. During the IE assessment with Dr. Hanna on August 9, 2016, the applicant reported that he was not experiencing any residual symptoms at the time of the subject accident.
21I note that there are discrepancies between Dr. Kopyto, Dr. Wudom and Dr. Hanna’s diagnoses of the type of pain the applicant experienced at various times. The applicant had a second IE assessment with Dr. Kopyto on July 28, 2015, which was approximately one year after the accident. Dr. Kopyto diagnosed headaches and uncomplicated musculoligamentous strain injuries to the chest, left elbow, left wrist and low back, which he opined left the applicant within the MIG. Less than one month later, on August 21, 2015, the applicant’s family doctor, Dr. Wudom assessed chronic lower back pain. Approximately one year later, the applicant had an IE assessment with Dr. Hanna on August 9, 2016. Dr. Hanna observed left elbow pain and pelvic pain. Dr. Hanna indicated that the pelvic pain was pre-existing and the left elbow pain was related to the accident. After considering the family doctor records, Dr. Hanna found that the applicant’s pre-existing history would not affect his recovery from the injuries sustained as a result of the accident.
22I also note that the applicant has two letters advocating that he requires treatment in excess of the MIG. His letter from Dr. Jessa is dated November 13, 2017 and the medical note from Dr. Wudom is dated November 16, 2017. Both doctors reference the first accident and how the applicant has pre-existing injuries as a result of that accident.
23I find that the applicant continued to struggle with some pain following the subject accident; however, his evidence fails to demonstrate that his pain is not a by-product of the minor injuries caused by the accident. I do not agree with Dr. Jessa and Dr. Wudom that the applicant requires treatment in excess of the MIG due to pre-existing injuries because, as discussed above, the evidence indicates that the applicant’s pre-existing injuries from the first accident had resolved in the months prior to the subject accident. Furthermore, I have not been provided with evidence that the applicant experiences a functional impairment adversely affecting his activities of daily living as a result of the pain he experiences.
24It is my finding that that the applicant has not met his onus to show that his injuries are outside of the MIG and therefore, there is no need for me to conduct an analysis of whether the treatment plans are reasonable and necessary. Accordingly, no interest is payable.
CONCLUSION
25For the reasons outlined above, I find that the applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, he is not entitled to the treatment plans claimed in this application. His application is dismissed.
Released: June 21, 2018
____________________________
Melody Maleki-Yazdi, 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.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.