K.J. v. Aviva General Insurance, 2018 CanLII 95553

Date: 2018-07-26

Tribunal File Number: 17-006391/AABS

Case Name: 17-006391 v Aviva General Insurance

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:

K.J.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Billeh Hamud

APPEARANCES:

For the Applicant: Carla Barcelo, paralegal for the Applicant

For the Respondent: Shivani Mehta, counsel for the Respondent

Heard in writing: May 15, 2018

BACKGROUND:

1The applicant was injured in an automobile accident on September 20, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the ''Schedule''). The applicant sought benefits from the respondent for several treatment and assessment plans and payment for examinations.

2The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” as defined by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant applied to the Licence Appeal Tribunal-Automobile Accident Benefits Service (“the Tribunal”) when his claims were denied by the respondent.

ISSUES TO BE DETERMINED:

3The following are issues to be determined:

(a) Are the applicant’s injuries predominantly minor injuries as defined in the Schedule, subject to treatment within the MIG?

(b) Is the applicant entitled to receive a medical benefit for the following:

(i) $3,939.43 for physiotherapy services set out in a treatment plan by Complete Rehab dated October 9, 2015, denied by the Respondent on October 22, 2015.

(c) Is the applicant entitled to payment for the following examinations:

(i) $2,248.90 for an in-home assessment set out in a treatment plan by Complete Rehab dated December 31, 2015, denied by the Respondent on January 8, 2016.

(ii) $2,460.00 for a psychological assessment recommended by Dr. John Mills in a treatment plan dated February 24, 2017 and denied by the Respondent on April 17, 2017.

(d) Is the applicant entitled to interest for the overdue payment of benefits?

4In his submissions, the applicant withdrew his claims for income replacement benefits and attendant care benefits.

RESULT:

5I find on all of the evidence that the applicant’s injuries are predominately minor as defined by the Schedule and subject to treatment within the MIG.

6I find the applicant has a pre-existing condition of lower back pain but has failed to establish that he cannot achieve maximal recovery from within the MIG.

7Since the applicant’s injuries are within the MIG, there is no need to determine if the treatment and assessment plans and cost of examinations are reasonable and necessary.

8Since the applicant is not entitled to any overdue benefit, he is not entitled to interest.

ANALYSIS:

The Minor Injury Guideline

9Section 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.”

10Section 18(1) of the Schedule limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.

11The onus is on the applicant to show that his/her injuries fall outside of the MIG³

Did the applicant sustain predominantly minor physical injuries?

12I find the applicant’s physical injuries are predominately minor and subject to the treatment cap of $3,500.00 under the MIG.

13On the day of the accident, the applicant was examined by Dr. Vishal Midha. The applicant complained about sharp neck pain, and that the pain radiated to the trapezius muscles and upper back. The applicant states that the pain was worse with neck movements and prolonged standing. Dr. Midha assessed the applicant for neck strain and ordered an x-ray of the cervical spine and Advil/Tylenol as needed for pain.

14On September 22, 2015, Dr. Rahim Jessa, the applicant’s chiropractor, completed an OCF-3 (disability certificate) and examined the applicant and determined that the applicant suffered from sprain and strain of the spine, shoulder, wrist, ankle and also had difficulty with sleep and reaction to severe stress.

15I find that these injuries are predominately minor since they consist of sprain and strains.

16However, the applicant argues that he should be removed from the MIG because he has a pre-existing condition.

Does the Applicant have any pre-existing conditions that would remove him from the MIG?

17Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be removed from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:

(i) There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

(ii) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.

18A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

19The applicant submits that he has pre-existing injuries which may pose a barrier to recovery if his treatment is limited to the MIG. Specifically, the applicant submits that since 2013, the applicant has visited his family physician and reported chronic low back pain. The applicant referenced an x-ray report dated July 22, 2014 which noted “mild degenerative changes within the lower lumbar facets”. In addition, the applicant relies on the clinical notes and records (CNRs) of Dr. Midha which identifies a pre-existing condition of lower-back pain.

20The respondent submits that the applicant has not adduced any compelling evidence that he has a pre-existing condition that was documented before the accident and which will prevent him from achieving maximal medical recovery from the minor injury.

21I have reviewed the applicant’s CNRs before the accident and I agree with the applicant that the medical evidence does establish a pre-existing condition of lower back pain.

22However, I agree with the respondent that there is no compelling evidence to establish that the applicant’s pre-existing condition of lower back pain will prevent him from achieving maximal recovery from the minor injury if the applicant is subject to the $3,500.00 limit. The respondent relies on the Tribunal’s decision in A.P. v. Dominion Insurance, 2018 CanLII 2306 (ON LAT), in support of its position that it is the applicant’s obligation to establish how his pre-existing condition could impede his recovery from within the MIG (emphasis added). I agree with the Tribunal’s reasoning in A.P. and I find it is applicable to this case.

23Since I have determined that the applicant’s injuries are predominately minor, there is no need to address whether the applicant’s treatment plans are reasonable and necessary.

24The application is dismissed.

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.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24