Tribunal File Number: 18-007866/AABS
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:
R. K.
Applicant
And
Aviva General Insurance Company
Respondent
DECISION
PANEL:
Brian Norris, Adjudicator
APPEARANCES:
For the Applicant:
Kim Villafuerte, Paralegal
For the Respondent:
Annemarie N. White, Counsel
HEARD IN WRITING ON:
July 15, 2019
OVERVIEW
1The applicant was injured in an automobile accident on January 21, 2016 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule").
2The respondent determined the applicant's injuries fell within the Minor Injury Guideline (MIG) and, on that basis, refused to pay for certain medical benefits. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.
ISSUES
3The disputed claims in this hearing are:
Are the applicant's injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500.00 funding limit as set out in s. 18 of the Schedule?
Is the applicant entitled to receive medical benefits for services proposed by Downsview Healthcare Inc. as follows;
i. $1,391.20 for chiropractic treatment recommended in a treatment plan dated July 27, 2016; and
ii. $1,151.20 for chiropractic treatment recommended in a treatment plan dated October 13, 2016?
- Is the applicant entitled to the costs of examinations for services proposed by Downsview Healthcare Inc. as follows;
i. $2,000.00 for an orthopaedic assessment proposed in a treatment plan dated June 22, 2017; and
ii. $2,000.00 for a chronic pain assessment proposed in a treatment plan dated July 18, 2017
Is the applicant entitled to interest on overdue payments?
Is either party entitled to costs of the proceedings?
RESULT
4The applicant sustained a minor injury as defined in the Schedule and is subject to the $3,500.00 funding limit.
5The disputed treatment plans are not reasonable and necessary because they propose treatment beyond the MIG and the applicant has exhausted the $3,500.00 funding limit.
6The applicant is not entitled to any interest.
PRELIMINARY ISSUE: THE APPLICANT'S REQUEST FOR PRODUCTIONS
7In written submissions, the applicant made a request for the respondent to produce a complete copy of the applicant's accident benefit file ("the AB file") and a complete copy of any clinical notes and records made by section 44 assessors. The respondent did not address this in submissions. For the following reasons, I deny the applicant's motion.
8The record shows that the applicant's request was previously addressed at the case conference and in the Tribunal's Order dated December 13, 2018. In it, the respondent was ordered to produce these records on or before February 12, 2019.
9The applicant also had an opportunity to address the issue of productions following the deadline to deliver them. This occurred on April 26, 2019 when the applicant filed a motion to adjourn the written hearing and provide new dates for the filing of submissions. Notably absent is any information suggesting the respondent failed to comply with the December 13, 2018 Order.
10Nevertheless, I find the applicant's motion does not comply with the requirements outlined in rule 15.1 of the LAT Common Rules of Practice and Procedure, effective October 2, 2017 (the "Rules"). The Rules provide that the moving party shall deliver a notice of motion setting out the decision or order the moving party is requesting from the Tribunal, the grounds to be argued and relevant laws and jurisprudence, the evidence in support of the motion, and the proposed format of the motion.
11Although not expressly stated, I understand the applicant seeks an Order compelling the respondent to produce the requested records and the nature of a written hearing would provide the format of the motion to occur in writing. However, the applicant has failed to address the two remaining requirements. The applicant did not provide the grounds to be argued, nor the relevant laws and jurisprudence. Stating the records are relevant without providing any reasons why they are, as the applicant did, is insufficient when requesting an order for the production of documents from the opposing party. Additionally, the applicant has not provided any evidence to support the request, nor has the applicant advised why there is a lack of evidence to support the request.
BACKGROUND
12The applicant was the driver of a vehicle which struck the rear end of another vehicle while driving on a major highway. The applicant did not seek medical attention at the scene of the accident but visited Dr. C. Saldanha, family physician, about five days later. Dr. Saldhana noted the applicant's headaches and neck, back and leg pain and prescribed physiotherapy and Robaxisal.
13Following the visit to Dr. Saldhana, the applicant submitted a disability certificate completed by Dr. A. Pivtoran, a chiropractor at Downsview Healthcare Inc.("Downsview"), dated January 29, 2016. The disability certificate listed the applicant had several soft tissue injuries as well as headaches, dizziness/giddiness, emotional disturbances & anxiety, and non-organic sleep disorders. The applicant claims to have started physiotherapy treatment at Downsview on January 25, 2016 until sometime in July 2016. However, no clinical notes and records from Downsview were provided.
14The respondent characterized the applicant's injuries as minor injuries pursuant to the Schedule, and approved funding for treatment up to the $3,500.00 limit provided by the MIG. The applicant now seeks a finding the injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.
THE MINOR INJURY GUIDELINE
15There is a monetary limit to medical benefits available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in s. 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
16If the applicant's injuries are deemed to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.
17In this case, the applicant claims entitlement to medical benefits which exceed the MIG and the $3,500.00 funding limit. Although the onus is on the applicant to establish why the MIG should not apply, the basis of the applicant's claim is unclear. Despite the lack of clarity, I have identified the submissions fall into three categories: 1) the applicant has pre-existing condition which would preclude maximal recovery within the MIG 2) the applicant suffered psychological injuries which are not included in the MIG and 3) the applicant's injuries have now become chronic.
18I have reviewed the evidence and submissions and find the applicant has suffered minor injuries as defined by the Schedule and is subject to the $3,500.00 funding limit provided by the MIG. My reasons are as follows.
Pre-existing conditions
19Pursuant to section 18(2) of the Schedule, an insured who suffers minor injuries may be entitled to benefits beyond the MIG if the insured has a documented pre-existing condition which would preclude recovery within the MIG. Considering the evidence before me, I find the applicant's pre-existing conditions do not warrant removal from the MIG.
20Although the applicant's submissions claim an unremarkable pre-accident history, they also note pre-existing diabetes, hypertension, sleep apnea, hypercholesterolemia, and arthritic knees which were operated on in 2006 and 2008 when hardware was installed. Despite this contradictory submission, the applicant made no submissions on how any or all of these conditions would preclude recovery within the MIG. Nor has the applicant provided pre-accident records to support the argument.
21On the other hand, the respondent submits the insurer's examination ("IE") paper review by Dr. I. Chaudhry, physician, dated May 16, 2016. In it, Dr. Chaudhry concluded the applicant's pre-existing conditions would not delay the applicant's recovery. The applicant does not contest Dr. Chaudhry's report, nor has the applicant provided an opinion which rebuts the report.
22In light of the IE report dated May 16, 2016, and absent any evidence contradicting it, I find the applicant has failed to meet the evidentiary burden to establish a documented pre-existing condition which would prevent maximal recovery within the MIG.
Psychological Injuries
23The applicant claims psychological injuries as a result of the accident and submits the report by Dr. A. Shaul, psychologist, dated May 8, 2016 ("the Shaul report") in support. The Shaul report concluded the applicant suffered an adjustment disorder with mixed anxiety and depressed mood as well as a phobia of travelling in and around vehicles. The Shaul report suggests psychological treatment is the way to address these injuries. The respondent did not specifically address the applicant's psychological condition but maintains the applicant is subject to the MIG.
24I have reviewed the evidence and submissions and find the applicant has not provided evidence of a psychological injury which would warrant removal from the MIG. While the Shaul report concludes the applicant suffers from psychological injuries, the body of the report does not support this finding and neither does the rest of the evidence before me. The body of the Shaul report, which includes psychometric test results, finds the applicant's psychological symptoms to be mild or minimal. For instance, the applicant completed the Beck Depression Inventory which determined the applicant's depression symptoms fell in the minimal range, and the Beck Anxiety Inventory, which found the applicant was suffering anxiety symptoms in the mild range. Overall, according to the report, the applicant's scores revealed only lower level symptoms of depression and anxiety. The diagnosis of mild or minimal psychological impairments in one report, absent any corroborating evidence, does not warrant removal from the MIG.
25The CNRs of the applicant's family physician, Dr. Saldhana, do not support the conclusion of the Shaul report and show no signs of a psychological injury. The records span from the date of the accident to May 2018 and do not include any complaints or observations of any psychological symptoms. The IE reports by Dr. F. Abuzgaya, orthopaedic surgeon and Dr. D. Mula, physician, dated August 21 and September 29, 2017 respectively, are also unsupportive of the Shaul report. Further, the IE reports list no psychological symptoms or complaints to back up the Shaul report.
Chronic Injuries
26The applicant concluded submissions by stating the MIG should not apply because the injuries suffered by the applicant have now become chronic. The respondent submits the applicant has suffered uncomplicated soft-tissue injuries which require uncomplex treatment.
27I agree with the respondent and find the chronicity of the applicant's injuries does not warrant removal from the MIG and the applicant remains subject to the $3,500.00 funding limit.
28The applicant has not provided evidence to support the claim that the injuries as a result of the accident have developed into a chronic condition. For example, during the more than 2 year span following the accident, the CNRs of Dr. Saldhana show only 6 visits which address issues that could be considered accident-related. Of the 6 visits, at least 2 of them were primarily for issues unrelated to the accident such as diabetes treatment and upset stomach. I find the limited complaints to Dr. Saldhana indicate the applicant does not have a chronic condition which would warrant removal from the MIG.
29Likewise, the applicant has only provided one page of a report by Dr. Pivtoran dated June 15, 2019 and has not provided any treatment records from Downsview. As a result of this, there is no information on the applicant's treatment, response to treatment, and recovery. Without this information, and in the absence of any similar records, I am unable to determine the applicant has a chronic condition which warrants removal from the MIG.
THE DISPUTED TREATMENT PLANS
30I have found the applicant's injuries as a result of the accident are minor in nature and fall within the MIG. The applicant has exhausted the $3,500.00 funding limit provided by the MIG. The applicant is not entitled to the disputed treatment plans as a result.
COSTS
31The applicant claims entitlement to costs on the basis that, according to the applicant, the proceeding has merit. The respondent also requested costs however, no reasons were provided on why the respondent would be entitled to costs.
32Pursuant to Rule 19.1 of the Common Rules of Practice & Procedure, costs may be awarded in the event that a party in a proceeding has acted unreasonably, frivolously, vexatiously or in bad faith.
33I decline to award costs to either party as neither party has provided any evidence or submissions which indicate the other party acted unreasonably, frivolously, vexatiously, or in bad faith.
CONCLUSION
34Based on the medical evidence before me, I find that the applicant's injuries as a result of the accident fall within the MIG and the applicant is subject to the funding limit prescribed in the MIG.
35The disputed treatment plans are not reasonable and necessary because the applicant has exhausted the funding limit provided by the MIG.
36No interest is owed.
37Neither party is entitled to costs.
Released: October 21, 2019
Brian Norris
Adjudicator