[C.E.] v. Aviva General Insurance Company, 2019 CanLII 101637

Citation: [C.E.] vs. Aviva General Insurance Company, 2019 ONLAT 18-002591/AABS

Date: September 16, 2019

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:

[C.E.]

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the applicant: Nicole Walker, Counsel

For the respondent: Leanne Zabudsky, Counsel

Written Hearing on: December 10, 2018

I. OVERVIEW

1The applicant was injured in an automobile accident (“the accident”) on January 5, 2016 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when his claims for benefits were denied by the respondent, Aviva. The respondent denied the applicant’s claims because it determined that all 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 the opposite. The applicant claims that his injury and a pre-existing psychological impairment take him out of the MIG.

2If the applicant’s position is correct, then I must address the issue of whether the chiropractic treatment claimed is reasonable and necessary.

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 medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

II. ISSUES

4Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to benefits limited by the MIG?

5If the applicant’s injuries are not within the MIG, then I must determine whether the applicant is entitled to a medical benefit for chiropractic services from Mackenzie Rehabilitation Centre recommended by Dr. Laura Tummonds, chiropractor, for the following amounts:

(a) $2,027.00 in a treatment plan dated August 8, 2016, submitted on August 10, 2016 and denied on September 12, 2016;

(b) $1,418.00 in a treatment plan September 19, 2016, submitted on September 21, 2016 and denied on October 4, 2016; and

(c) $2,569.40 in a treatment plan dated April 28, 2017, submitted on May 1, 2017 and denied on August 29, 2017.

6Is the applicant entitled to interest on any overdue payment of benefits?

III. RESULT

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

IV. ANALYSIS

A. 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.” Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.

9The onus is on the applicant to show that his injuries fall outside of the MIG.³

(i) Did the applicant sustain predominantly minor physical injuries?

10The applicant submits that his shoulder injury is not a minor injury. I find that the evidence establishes that the applicant sustained a physical injury or injuries that are defined as a predominantly minor injury. I find that the applicant sustained soft tissue injuries in the accident consisting of a cervical sprain, a lumbosacral sprain and a partial tear of the anterior supraspinatus tendon.⁴

11Under s.3(1) of the Schedule, “sprain” means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear. “Strain” means an injury to one or more muscles, including a partial but not a complete tear. The evidence is that the applicant sustained a partial tear of a tendon in his shoulder that healed.⁵ There is no evidence that the applicant sustained a complete tear of a shoulder tendon. The partial tear of the applicant’s supraspinatus tendon fits within the definition of a “sprain” in the Schedule. The diagnosis of cervical and lumbar sprains fit the definition of “strain” in the Schedule. Therefore, I find that the applicant’s shoulder sprain and neck and back strains are by the definition in s.3(1) of the Schedule, “minor injuries.”

12The applicant argues that he should be removed from the MIG because he has a:

• pre-existing condition; and a

• psychological injury/impairment

(ii) Does the applicant have any pre-existing conditions?

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 removed from the MIG, 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.

14The standard for excluding an impairment on the basis of pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it is in fact “intended and expected that the vast majority of pre-existing conditions will not do so.” The MIG clearly requires that a pre-existing condition must be shown with “compelling evidence” to prevent maximal recovery within the cap imposed by the MIG.⁶

15The applicant has failed to prove that he has a pre-existing condition that prevents maximal recovery under the MIG. He relies on a report prepared by his psychiatrist, Dr. David Futerman, dated July 16, 2018 advising that he was under his care at the time of the accident. His letter was prepared after the accident. It, together with the applicant’s Ontario Health Insurance Plan (“OHIP”) summaries, are evidence that the applicant was under the care of a psychiatrist before the accident. One may presume that Dr. Futerman has clinical notes and records that were prepared prior to the accident detailing his treatment of the applicant that would meet the requirement in s.18(2) of the Schedule to show a pre-existing medical condition that was documented before the accident. However, those clinical notes and records were not produced.

16I find that the applicant has failed to prove that he has a pre-exiting condition that takes him out of the MIG. The reason is not because of his failure to provide his clinical notes and records. It is because the evidence of the applicant’s pre-existing medical condition is vague. Dr. Futerman stated that the accident exacerbated the applicant’s mood difficulties, but he did not state what those difficulties were. He described some of the applicant’s symptoms. However, there is no evidence of the frequency, duration or extent of those symptoms, other than they occurred for a few weeks after the accident. The applicant has not proven on a balance of probabilities that his pre-accident irritability and depressed mood prevent him from achieving maximal recovery from his accident injuries if he is limited to the goods and services available under the MIG.

(iii) Does the applicant have a psychological impairment?

17The applicant claims that he sustained a psychological injury as a result of the accident that place his claims outside of the MIG. Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments. However, psychosocial symptoms are sequelae from minor injuries and do not take an insured person out of the MIG.⁷

18The applicant relies on the report of Dr. Futerman to support his claim that he has a psychological impairment as a result of the accident. However, I find the applicant does not have a psychological impairment that would take him out of the MIG. The applicant has not provided any evidence that he has a psychological impairment that is more than psychosocial symptoms arising from his minor injuries. Dr. Futerman reported that the applicant had heightened anxiety when out walking and avoided the accident scene for a number of weeks after the accident. The applicant had some flashbacks and he had some exacerbation of his pre-accident mood difficulties consisting of increased irritability and depressed mood. Dr. Futerman implied that these symptoms were short lived or were not severe enough that they required treatment with medication. They have not affected the applicant’s social activities.⁸ There is no indication in Dr. Futerman’s report that these symptoms were anything more than psychosocial sequelae from the accident.

19In her treatment plans, Dr. Tummonds stated that the applicant had acute stress reaction and other anxiety disorders. However, she is a chiropractor and is, therefore, not qualified to provide psychiatric or psychological diagnosis. For this reason, I give no weight to Dr. Tummonds’ comments on the applicant’s psychological health.

20Accordingly, I find that the applicant has not proven on a balance of probabilities that he has a psychological injury that takes him out of the MIG.

21Because I have found the applicant’s injuries to fall within the MIG, it is unnecessary for me to assess whether the claimed treatment plans are reasonable and necessary. There are no benefits payable and, according, the applicant is not entitled to interest.

V. CONCLUSION

22For the reasons outlined above, I find that:

i. The applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, he is not entitled to the treatment plans claimed in this application or interest.

ii. The application is dismissed.

Released: September 16, 2019

___________________________

Deborah Neilson

Adjudicator

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
4. 4Ultrasound report of the right shoulder dated January 20, 2016, Insurer’s Examination reports of Dr. Fathi Abuzgaya, orthopaedic surgeon, dated May 27, 2016 and July 11, 2017, treatment plans (OCF-18) of Dr. Tummonds dated August 8, 2016, September 19, 2016 and September 19, 2016,
5. 5Progress note from McKenzie Medical dated July 28, 2016, MRI of the right shoulder dated June 24, 2017.
6. 6Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
7. 7See s.2(g) of the MIG and s.7(b)(iii) of the MIG, other interventions that facilitate pain management, activation and return to function include intervention for psychosocial issues and coping skills education.
8. 8Dr. Abuzgaya’s report dated May 27, 2016. The applicant reported that there has not been much change in his social activities since the accident.