Tribunal File Number: 17-006874/AABS
Case Name: 17-006874 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:
Z.V.
Applicant
and
Aviva Insurance Canada
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Monica Purdy
APPEARANCES:
For the applicant: Michael Yermus, Counsel
For the respondent: Sophia Chaudri, Counsel
Written Hearing: March 26, 2018
OVERVIEW
1The applicant, Z. V., was injured in a motor vehicle accident on April 23, 2015 (“the accident”), and applied for medical benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The respondent, Aviva Insurance, taking over from Pembridge, denied the claims for these benefits.
3Z.V. appealed the denial of the benefits to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).
ISSUES
4The issues before me are as set out in the Order dated February 8, 2018:
Did Z.V. sustain predominantly minor injuries as defined under the Schedule?
Is Z.V. entitled to a medical and rehabilitation benefit in the amount of $2,964.40 for chiropractic services recommended in a treatment and assessment plan (OCF-18) dated September 19, 2015, and denied by the respondent on September 23, 2015?
Is Z.V. entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to Z.V.?
Is Z.V. entitled to interest on any overdue payment of benefits?
RESULT
5I find that Z.V.’s injuries are minor and that she is not entitled to the benefits in dispute.
ANALYSIS
Does the Minor Injury Guideline (MIG) apply to Z.V.?
6Section 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 terms for injuries are also defined in the Schedule.
7Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.
8The onus is on Z.V. to show that her injuries fall outside of the Minor Injury Guideline.1
9If I find that Z.V.’s injuries are within the Minor Injury Guideline then I will not need to determine whether her treatment plans are reasonable and necessary, as they exceed the cap set by the Minor Injury Guideline.
Payment Beyond the Minor Injury Guideline
11Z.V. takes the position that Aviva has conceded the Minor Injury Guideline limits when it approved and paid over $6,756.40 in medical and rehabilitation benefits to Z.V.
12Aviva argued that the payments made beyond the Minor Injury Guideline limit were due, essentially, to an administrative error. When Aviva took over Z.V.’s file from Pembridge, the clinic resubmitted the treatment plans using the Pembridge claim numbers. Aviva approved the treatment plans in error.
13Aviva takes the position that the mistaken payments were a good faith gesture on its part for claims that were incorrectly made by the treatment facility. However, once the error was detected Aviva did not seek repayment from Z.V. Further, Aviva submits that it should not be penalized for taking such a practical course in the handling of this matter.
14I agree with Aviva’s position. Receiving payments above the Minor Injury Guideline limits due to an administrative error does not automatically take an insured person out of the Minor Injury Guideline or entitle her to benefits.2
15Z.V. offers no binding authority for its position on this point other than saying that Aviva by its own actions should be stopped from relying on the application of the Minor Injury Guideline under these circumstances.
16Z.V. benefitted from Aviva’s approach to this error, and I find that her case for removal from the Minor Injury Guideline is not prejudiced. Z.V. still has to meet the prescribed requirement to show that her injuries are not minor and cannot be treated within the limits of the Minor Injury Guideline.
Did Z.V. sustain predominantly minor injuries?
17My review of the medical evidence from both sides indicates that the applicant sustained only physical injuries that are predominantly a minor injury. There were no indications in any report of injuries falling outside of the prescribed definition.
Chronic Pain
18Z.V. claims that she has chronic pain and that the condition takes her out of the Minor Injury Guideline.
19After reviewing Z.V.’s evidence, I am not persuaded that her claim of a chronic pain condition takes her out of the Minor Injury Guideline.
20Z.V. relies on the chronic pain report, from Dr. Zahavi, dated May 30, 2017 with an addendum dated February 6, 2018. In the addendum, Dr. Zahavi noted that Z.V. suffered chronic pain as a result of the accident. I find Dr. Zahavi’s report to be unpersuasive because:
i. Dr. Zahavi’s assessment of Z.V.’s condition, completed 2 years after the accident, lacked important details. The report did not address a gap in Z.V.’s treatment from December 2015 to September 2016. There was simply no explanation given by Dr. Zahavi or Z.V. on the management of her chronic pain during that period. With the lack of a credible explanation for the gap in treatment, I am not satisfied that Z.V. meets the burden that her chronic pain takes her out of the Minor Injury Guideline.
ii. Dr. Zahavi’s diagnosis of sleep disorder due to chronic pain and chronic recurrent headaches not yet diagnosed did not include other symptoms such as, depression or anxiety, usually a feature of chronic pain. Increased activity (swimming, Yoga, gym membership) anti-inflammatories as required and a MRI to investigate the headaches were the recommended treatment from Dr. Zahavi. I find that the treatment suggestion indicates a mild recurrent pain condition and not one that is persistent and of a chronic nature.
iii. In my view any information on visits to the family physician, walk in clinic or emergency would help to support Z.V.’s position. A prescription history as Aviva pointed out would certainly help. Particularly, as Dr. Zahavi noted that Z.V. reported taking naproxen, sparingly. I find this undermines the credibility of Z.V.’s claim and she did not meet the onus in this case.
iv. What precipitated Z.V.’s pain condition in September 2016 and how it connects to the motor vehicle accident of April 2015 was not documented by either Dr. Leung, her family physician or Dr. Zahavi. The lack of scrutiny in Dr. Zahavi’s and Dr. Leung’s assessment of Z.V.’s symptoms after such a long period between treatment, leaves me to wonder if any treatment was done or even required during that period.
v. My review of the documentary evidence by Dr. Zahavi, the clinical notes and records of her family physician, Dr. Leung, and her treatment providers provide me with no evidence to support a finding of chronic pain.
Physical Injuries
21In review of the evidence, overall, I was most persuaded by Z.V’s family physician, Dr. Leung’s, report of April 25, 2015 that was done 2 days after the accident. Dr. Leung assessed Z.V. for soft tissue injuries in the following areas: back pain, upper back, neck and shoulder strain, anterior chest contusion now stable; possible post trauma headaches, stable. All of which are physical soft tissue injuries.
22Again in September 2016, Dr. Leung assessed Z.V. to have low back pain and musculoskeletal spasms since about June/July 2016. There was no indication from Dr. Leung’s notes of a chronic pain consult or a referral.
23Dr. Zahavi did not identify any psychological symptoms stemming from Z.V.’s chronic pain condition. Dr. Zahavi noted that Z.V reported no depression. She was socializing and had normal appetite, good concentration and memory. Nothing in the evidence persuades me that Z.V.’s injuries are substantial and takes her out of the Minor Injury Guideline.
24I am satisfied, on a balance of probabilities, that Z.V.’s physical injuries from the accident were predominantly minor.
Award
25Z.V. maintains that she is entitled to receive an award under Section 10 of Ontario Regulation 664 (O. Reg. 43/16, s. 4).
26Under Ontario Regulation 664, section 10, the Licence Appeal Tribunal can award a lump sum of up to 50 per cent of the amount to which the person was entitled to at the time of the award to an insured person, if, the respondent is found to have unreasonably withheld or delayed payments of benefits.
27Z.V. contends that Aviva unreasonably withheld and delayed payments when it ignored medical evidence that supports the approval of necessary benefits by its failure:
a. to conduct its own investigation and instead adopted the denial made by Pembridge in 2015, even though new medical evidence by the Dr. Zahavi was filed;
b. Having paid Z.V. $6,756.40 in medical benefits Aviva continues to take the position that Z.V. belongs in the Minor Injury Guideline.
28Aviva maintains that there are no statutory or common law requirement barring it from accepting Pembridge’s denial of the treatment plans without re-evaluating Z.V. It is entitled to rely on the decision Pembridge made when the treatment plans were denied. Further Aviva submits that the payments were made in good faith and without prejudice, though the treatment plans were incorrectly submitted.
29I do not find that Aviva acted unreasonably under the circumstances. Aviva paid out more than the Minor Injury Guideline limit in this case and I cannot determine how it can be construed as withholding or delaying payments. Having considered all of the evidence I find that an award is not appropriate in this case.
ORDER
30My orders are:
i. Z.V.’s. injuries are minor and she is not entitled to the benefits sought.
ii. Z.V. is also not entitled to an award under Ontario Regulation 664 because the respondent did not unreasonably withhold or delay payments to Z.V.
iii. Z.V. is not entitled to interest on the overdue payment of benefits.
Released: June 29, 2018
___________________________
Monica Purdy, Adjudicator
Footnotes
- Scarlett v. Belair Insurance, 2015 ONSC 3635.
- Stranges v. Allstate Insurance Company of Canada, 103 O.R. (3d) 73, 2010 ONCA 245, para.10