D.K.M. v. Aviva General Insurance Company, 2019 CanLII 110115

D.K.M. vs. Aviva General Insurance Company, 2019 ONLAT 18-010072/AABS

Citation: D.K.M. vs. Aviva General Insurance Company, 2019 ONLAT 18-010072/AABS

Date: October 15, 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:

D.K.M.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melody Maleki-Yazdi

APPEARANCES:

For the Applicant:

Maria Makarova, Paralegal

For the Respondent:

Stanford Cummings, Counsel

HEARD:

In writing on: May 21, 2019

OVERVIEW

1D.K.M. (“the applicant”) was injured in an automobile accident (“the accident”) on June 29, 2016, and sought 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.

2The respondent denied the applicant’s claim for an additional medical benefit because it was determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by section 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline² (“the MIG”).

ISSUES

3The following issues are in dispute for this hearing:

i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and therefore subject to treatment within the MIG?

ii. If the applicant’s injuries are not within the MIG, then the Tribunal must determine the following issue:

(i) Is the applicant entitled to a medical benefit in the amount of $3,788.16 for physiotherapy, massage therapy, chiropractic and acupuncture treatment recommended by Natural Touch Rehabilitation Centre in an OCF-18 dated November 14, 2016, and denied on November 22, 2016?

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

RESULT

4The Tribunal finds that the applicant’s injuries are outside of the MIG due to chronic pain.

5The applicant is entitled to the cost of examination in the amount of $3,788.16 for physiotherapy, massage therapy, chiropractic and acupuncture treatment recommended by Natural Touch Rehabilitation Centre in an OCF-18 dated November 14, 2016, and denied on November 22, 2016.

6The applicant is entitled to interest on any overdue payment of benefit.

ANALYSIS

The Minor Injury Guideline

7Section 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.”

8Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500.00.

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

Does the applicant suffer from chronic pain?

10The applicant’s evidence and submissions indicate that he has developed a chronic pain condition as a result of the accident. It is on this basis that he argues that his impairments fall outside of the MIG.

11An insured can be removed from the MIG for chronic pain. I agree with the reasoning in T.S. v. Aviva General Insurance Canada³, which was submitted by the applicant, that a finding of chronic pain takes one out of the MIG.

12I find that the applicant suffers from chronic pain that would take him out of the MIG based on the following evidence:

i. I accept that this applicant experiences chronic pain in his lower back region. The clinical notes and records of Dr. Abdul Malik (family physician) on February 23, 2019 (more than two-and-a-half years after the accident), indicate that Dr. Malik referred the applicant to a chronic pain specialist in regard to his dull lower back pain. On April 3, 2019 (more than two-and-a-half years after the accident), Dr. Igor Wilderman (chronic pain specialist) examined the applicant and produced a chronic pain assessment dated April 11, 2019, where he opined that the applicant meets the criteria for the development of a chronic pain syndrome, and diagnosed him with chronic pain disorder.

ii. The applicant’s pain affects his life in a significant way. The applicant told Dr. Yuri Marchuk (physiatrist), an insurer’s examiner, during an assessment on January 23, 2017, that he needs help with grass cutting, gardening and snow shovelling. He told Dr. Wilderman that he no longer performs housekeeping and/or home maintenance functions independently. Regarding his employment at an autobody repair shop, he told Dr. Wilderman that his tasks are very difficult to perform, despite his modified duties, and cause him a considerable amount of pain. The applicant’s accounts are consistent and there is no evidence that contradicts his accounts.

iii. Furthermore, the applicant reported to a number of assessors that his sleep is disturbed as a result of pain. He told Dr. Marchuk that he has problems initiating sleep and sleep interruptions. He told Dr. Wilderman that his sleeping pattern has been disturbed as he is often unable to fall asleep for several hours after retiring to bed and wakes up frequently.

iv. I agree with the applicant that Dr. Marchuk’s insurer’s examination (“IE”) dated February 6, 2017, does not speak to the applicant’s current medical condition because after Dr. Marchuk completed his assessment of the applicant on January 23, 2017 (approximately seven months after the accident), the applicant continued to see Dr. Malik with pain complaints and completed a chronic pain assessment with Dr. Wilderman, who diagnosed him with chronic pain disorder.

13I accept that the evidence above, including the applicant’s self-reported injuries and the medical opinions, point to the fact that the applicant has chronic pain. I conclude that the applicant’s injuries fall outside of the MIG.

Is the treatment plan reasonable and necessary?

14The treatment plan in the amount of $3,788.16, recommended by Jasleen Pannu (physiotherapist), is reasonable and necessary and the applicant is entitled to this plan. The goals of the treatment plan align with the providers’ proposed treatments and with the applicant’s level of impairment to provide pain relief, strengthening, increasing his range of motion and his level of functionability.

15The respondent submits that Dr. Marchuk’s IE report dated February 6, 2017, specifically opined that the treatment plan is not reasonable and necessary because the applicant has reached maximal medical recovery.

16I have found that, as a result of the accident, the applicant experiences chronic pain in his lower back region. At the applicant’s appointment on June 28, 2018, Dr. Malik recommended that the applicant engage in physiotherapy. In Dr. Wilderman’s report dated April 11, 2019, he recommended multimodal intervention and treatment, including active exercise, chiropractic treatment and physiotherapy. I find that the treatment plan, which includes a combination of physiotherapy, massage therapy, chiropractic and acupuncture treatment, would be beneficial in helping to relieve the applicant’s pain and increase his strength, range of motion and level of function.

CONCLUSION

17The applicant is not subject to the MIG funding limit of $3,500.00 due to the Tribunal finding that he suffers from chronic pain that takes him outside of the MIG.

18The applicant is entitled to the treatment plan for physiotherapy, massage therapy, chiropractic and acupuncture treatment in the amount of $3,788.16.

19The applicant is entitled to interest on any overdue payment of benefit.

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. 3T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT).