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:
J. A.
Appellant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
For the Appellant:
Domenic Pelligrino, Counsel
For the Respondent:
Maggie Morgan, Counsel
Heard: In Writing Hearing:
June 3, 2019
OVERVIEW
1The applicant (“J.A.”) was involved in a motor vehicle accident (“the accident”) on June 6, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“the Schedule”).
2J.A. applied for benefits from the respondent (“Aviva”) and applied to the Licence Appeal Tribunal (the “Tribunal”) when his claims were denied.
3Aviva argues that all of J.A.’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”)2. J.A.’s position is exactly the opposite.
4If Aviva is correct, J.A. is then subject to the $3,500.00 limit on 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.
5I must decide whether J.A.’s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine his entitlement to the medical benefits in dispute.
PRELIMINARY ISSUES
New Evidence – Dr. J.A. Nathanson Disability Certificate and Report
6J.A. is seeking to rely on a report by Dr. J. A. Nathanson, dated April 26, 2019 and a Disability Certificate (“OCF-3”) completed by the same assessor, dated April 25, 2019. Aviva submits the report was never served on it and was only provided to Aviva with J.A.’s submissions. The Disability Certificate was served on Aviva on April 29, 2019.
7The Order of Adjudicator Driesel specifically states at paragraph [3] that all documentary evidence to be relied on at the hearing is to be exchanged by no later than March 22, 2019, after which time, no additional new evidence may be submitted for use at the hearing.
8J.A. submits that Dr. Nathanson’s report is essential in considering the issues in dispute and reflect the most recent understanding of J.A.’s current medical condition. J.A. further submits that the reports from Dr. Nathanson assess J.A.’s current functional abilities.
9Aviva submits that J.A.’s failure to deliver the documentation he intended to rely on prior to the March 22, 2019 deadline means the Tribunal cannot rely upon same with respect to any reasons for a decision in this matter. I agree.
10It is clear from the dates of Dr. Nathanson’s report and OCF-3 that these documents did not exist at the time of the deadline for productions in accordance with Adjudicator Driesel’s Order. As a result of the late filing by J.A. of the report and OCF-3, Aviva was prejudiced by restricted timelines and the late filing of the expert report and denied the opportunity to respond to the expert report with any necessary rebuttal report of its own.
11Between the February 12, 2019 Order and the date of the expert report and OCF-3, J.A. had enough time to notify Aviva that he intended to obtain such a report and failed to do so. Once he became aware of it, he failed to notify Aviva that the expert report would not be obtained within the timelines set out in the Tribunal Order.
12All parties participating in a Tribunal proceeding are expected to adhere to the Tribunal Rules governing the timeliness and efficiency of these proceedings.
13J.A. offered no explanation as to the reason for the delay of meeting any deadlines (for filing expert reports and/or forms) set out in the Tribunal Order or failing to notify Aviva.
14Parties in a proceeding have a duty to ensure the Tribunal’s Orders are adhered to. Should there be a delay, or a foreseeable reason for a delay, the parties have a duty to ensure the timeliness and efficiency of the proceeding is maintained, by notifying the other party of a foreseeable delay.
15Therefore, I will not consider the Dr. Nathanson report/OCF-3 that was attached to J.A.’s submissions. That new evidence, along with the submissions referring to it, has been struck from the evidentiary record.
ISSUES
16The issues in dispute are as follows:
i. Did the applicant sustain predominately minor injuries as defined under the Schedule?
ii. Is the rehabilitation benefit in the amount of $3.643.68 for medical services, denied on September 2, 2016, reasonable and necessary?
iii. Is J.A. entitled to $84.68 for expenses incurred at Shoppers Drug Mart, denied on April 6, 2017?
iv. Is J.A. entitled to interest on any overdue benefit?
RESULT
17Based on a review of all the evidence put before me, I find that J.A.’s physical injuries meet the definition of ‘minor’ under the Schedule, it is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.
LAW
Minor Injury Guideline
18The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) 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 “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in subsection 3(1).
19The onus is on the applicant to show that his injuries fall outside of the MIG.3
20J.A. argues that his injuries go beyond the definition of “minor” because he has sustained physical and psychological impairments and chronic pain, all of which remove him from the MIG.
J.A. did not sustain physical injuries that remove him from the MIG
21Although J.A. has provided medical evidence which confirms he sustained accident-related injuries, none of the evidence shows that his injuries fall outside the MIG. In addition, the evidence submitted by Aviva confirms that J.A.’s physical injuries fall within the MIG.
22My finding that J.A.’s physical injuries fall within the MIG is supported by the following evidence:
(i) There is a single record of a visit to J.A.’s doctor about his injuries on June 7, 2016. On June 7, 2016, Family Physician, Dr. Hala Saleem diagnosed J.A. with physical injuries – “(low) back pain, R[ight] SI sprain, R[ight] iliofemoral band syndrome”;
(ii) The disability certificate (“OCF-3”) completed by Kuldip Rakkar, a Chiropractor, dated June 25, 2016, confirms J.A. has soft tissue injuries4. I find that the injuries listed in the OCF-3, are either vague (ie. “unspecified”) or have nothing to do with an accident-related injury (ie. “stressful work schedule”). The remaining injuries listed would be defined as predominantly ‘minor’. Further, the OCF-3 is consistent with the complaints seen in J.A.'s treatment record; and
(iii) On behalf of Aviva, Dr. Todd Levy, a physician, assessed J.A. on November 28, 2016. Dr. Levy diagnosed J.A. with “WAD I, lumbar spine sprain/strain, right shoulder sprain/strain and cervicogenic headaches”. Dr. Levy found that J.A.'s injuries were minor in nature. I agree.
23The medical evidence submitted by J.A. and Aviva confirm that J.A.’s physical injuries are consistent with those that would be defined as ‘minor’. The evidence supports and I find that J.A. suffered soft tissue injuries as a result of the accident. J.A. has therefore failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided in the MIG.
J.A. does not suffer from chronic pain syndrome that would remove him from the MIG
24I find that J.A. does not have a chronic pain condition arising from the accident that places him outside of the MIG. Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.
25J.A. submits that due to his “chronic pain” he suffers from chronic pain syndrome. J.A. submits he has not reached his pre-accident state, he still has functional impairments and has not recovered in the usual time with these types of injuries. Despite this, J.A. has not provided me with any medical opinion that supports a chronic pain diagnosis.
26J.A. asserts that he suffers from chronic pain syndrome based on his complaints of pain to Family Physcian, Dr. Salam or Chiropractor, Mr. Rakkar (mentioned in 5 i and ii). I disagree.
27I find that J.A.’s symptoms do not meet the criteria for chronic pain because:
(i) Neither Dr. Salam nor Mr. Rakkar discuss J.A.’s level of pain or it’s affects on his function;
(ii) I find for chronic pain to take someone out of the MIG, there must be an affect on their functionality. A treating physician’s mention of a chronic pain condition be it ‘syndrome’ or specific use of the term ‘chronic pain’ is not enough in establishing the impact on functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability; and
28I find that the J.A.’s functionality is inconsistent with chronic pain based on the following:
(i) J.A. had one accident-related visit to Dr. Salam on June 7, 2016; and
(ii) J.A. has not produced any evidence that supports his functionality has been impacted as a result of chronic pain.
29Based on the evidence before me, I am unable to find, on a balance of probabilities, that J.A. should be removed from the MIG because he has chronic pain.
CONCLUSION
30J.A. sustained predominantly minor injuries that fall within the MIG. Accordingly, J.A. is not entitled to payment for the treatment plans claimed in this application. His application is dismissed.
Released: October 2, 2019
Derek Grant
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.
- Scarlett v. Belair, 2015 ONSC 3635 para. 24.
- The injuries include, but not limited to, muscle strain, injury of muscle and tendon of head, other headache syndromes, unspecified injury of neck, injury of muscle and tendon at neck level, low back pain, injury of muscle and tendon at thorax level, sprain and strain of lumbar spine, pain in thoracic spine, nervousness, state of emotional shock and stress; unspecified, malaise and fatigue, dizziness and giddiness, stressful work schedule, other sprain and strain of cervical spine, acute pain, cervicalgia, subluxation complex (vertebral), and spinal instabilites.