17-005091 v Aviva General Insurance, 2018 CanLII 95559

17-005091 v Aviva General Insurance

Date: 2018-06-18

Tribunal File Number: 17-005091/AABS

Case Name: 17-005091 v Aviva General Insurance

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Sandra Driesel

APPEARANCES:

Counsel for the Applicant: Scott Smith

Counsel for the Respondent: Amanda Faulkner

Written Hearing on: March 15, 2018

OVERVIEW

1The applicant was injured in a motor vehicle accident (“MVA”) on November 26, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹. She applied to the License Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims because it was determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“MIG”). The applicant’s position is that a pre-existing medical condition prevents her from achieving maximal recovery within the MIG.

3If the respondent’s position is correct, then the applicant 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 claimed benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

4If the applicant’s position is correct and her injuries fall outside of the MIG it will be necessary to review the evidence and make a finding as to whether or not the claimed benefits are reasonable and necessary.

ISSUES IN DISPUTE

5Did the applicant sustain predominantly minor injuries as defined by the Schedule and subject to treatment within the Minor Injury Guideline (“MIG”)?

6If 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 $1,175.00 for chiropractic treatment, recommended by Davey Chiropractic and Laser Clinic in a treatment plan submitted on July 29, 2015 and denied by the respondent on October 15, 2015?

ii. Is the applicant entitled to the cost of an examination in the amount of $250.00 for the completion of a disability certificate (“OCF-3”) submitted on June 23, 2016 and denied by the respondent on July 19, 2016?

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

RESULT

7I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to consider the reasonableness of the treatment plan, examination, or the issue of interest.

ANALYSIS

The Minor Injury Guideline

8Section 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 what these terms for injuries mean.

9Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

10The onus is on the applicant to show that her injuries fall outside of the MIG³.

Did the applicant sustain predominantly minor physical injuries?

11Both the applicant’s application for accident benefits (OCF-1) and a Disability Certificate (OCF-3) were submitted on December 29, 2014 diagnosed the applicant as suffering from WAD II, lumbar sprain and strain of the left shoulder, which by definition are considered within the MIG. Chiropractic treatment was approved.

12The applicant claims that because she still has pain in her neck and shoulder, with a continuing need for chiropractic treatment, this is an indication that her injuries were not minor in nature as she requires treatment that exceeds the $3,500.00 limit imposed by the MIG.

13There is no evidence that the applicant’s MVA related physical injuries were anything but predominately minor.

14The applicant argues that she should be removed from the MIG because she had pre-existing medical conditions.

Pre-existing Conditions:

15The applicant argues that she should be removed from the MIG because she had pre-existing medical conditions that prevent her from achieving maximal recovery from the minor injury. These are reported to be:

i. Pre-existing physical, lower back issues

ii. Pre-existing mental/psychological issues

16Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. The applicant must provide compelling evidence from a health practitioner that s/he will be prevented from achieving maximal recovery from his/her injuries if s/he is subject to the cap imposed by the MIG on treatment costs.

17The standard for excluding impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.

18The MIG expressly states that exclusions on the basis of pre-existing conditions are expected to be made “in extremely limited circumstances” and that granting such exclusions on any evidence that falls short of the prescribed “compelling standard” is “inconsistent with the intent of the Schedule and the MIG”. It requires compelling evidence to be provided using the Treatment and Assessment Plan (“OCF-18”) with attached medical documentation, if any, prepared by a health practitioner.

Does the applicant have a pre-existing medical condition?

19I find the applicant’s failed to prove a pre-existing medical condition because:

i. The clinical notes and records from the family physician Dr. Caire Prins show sporadic complaints of lower back issues pre-accident. They are not sufficient evidence of a chronic condition. There was no expert testing or diagnoses pre-accident to suggest that the lower back issues were extreme or continual.

ii. The OCF-3 completed shortly after the MVA denied the existence of a prior condition or injury.

iii. In November 2016, post-accident, the claimant had a workplace accident that was reported and treated through WSIB. Reports related to this accident infer that there was no ‘pre-existing lower back condition’:

a. In a letter dated November 30, 2016 detailing the applicant’s entitlement to WSIB treatment it notes “the worker [applicant] has had a prior low back injury, however has not had medical attention for several months or required restrictions for this and noting she had a specific incident, this has no bearing on initial entitlement.”

b. After the applicant underwent treatment for her WSIB injury a report completed on February 7, 2017 by Dr. Brett Davey states ‘’the applicant’s low back pain was fully resolved and her range of motion was back to normal.“ No outstanding issues were noted and no further treatment or assessment was required.

c. The applicant signed a WSIB Health Professional’s Report, completed by a Dr. Henson. The applicant replied “no” to the question related to the WSIB injury: “are you aware of any pre-existing or other conditions/factors that may impact recovery?

Does the applicant have a pre-existing mental/psychological condition?

20I find the applicant fails to prove a pre-existing mental/psychological condition because:

i. The clinical notes and records from the family physician Dr. Caire Prins dating from pre-accident years until after the MVA provides notations related to an inability to sleep, anxiety and/or mild depression. In each case, notes by the doctor suggested specific life situations that triggered these stressors (such as a fire in her apartment; issues regarding her ex-boyfriend; Children’s Aid Society issues; a workplace accident). Although there were occasions when medication was prescribed, there is no evidence that professional psychological treatment was suggested or incurred.

ii. The applicant relies on a report from Dr. Emillie Newell, medical specialist in Physical Medicine and Rehabilitation, dated August 26, 2016 to support the position that there is a pre-existing psychological condition. Dr. Newell cites an entry from a Dr. Paul Hanson’s clinical notes that states the applicant suffered depression in 2013. Without further reference to psychological assessment or treatment, Dr. Newell concludes that the applicant has suffered ‘since 2013’ without indication of any persistent or continual condition. In addition, Dr. Newell reports “the applicant denies being depressed” yet the doctor expresses a concern over the applicant’s mental health. This is an opinion from a professional who does not report any qualifications to make a finding on a psychological condition.

iii. The applicant has failed to provide any psychological assessment reports and has not sought funding from the insurer for a report or psychological treatment.

21I have considered the applicant’s evidence and in weighing it against the standard imposed by the Schedule I find that the applicant has failed to prove she had any pre-existing condition that would take her outside of the MIG.

Request for Interest

22Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

23In this case, the applicant is not entitled to interest on denied claims, because no payment is due from the insurer.

CONCLUSION

24For the reasons outlined above, I find that:

i. The applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, she is not entitled to the treatment plans claimed in the application. Her application is dismissed.

Footnotes

1. 1O. Reg 34/10
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s.268.c(1.1) of the Insurance Act.
3. 3Scarlett v Belair, 2015 ONSC 635 para 24