S.C. v. Aviva Insurance Co., 2019 CanLII 119739

Licence Appeal Tribunal

Citation: S.C. vs Aviva Insurance Co., 2019 ONLAT 19-001263/AABS

Tribunal File Number: 19-001263/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:

S.C. Applicant

And

Aviva Insurance Co. Respondent

DECISION

PANEL: Jesse A. Boyce, Adjudicator

APPEARANCES: For the Applicant: Jordan Mintz For the Respondent: Kristofer B. Angle

HEARD: In Writing on: September 16, 2019

OVERVIEW

1S.C. was injured as a passenger in an automobile accident on September 6, 2017. As a result of the accident, S.C. sustained bruising, neck pain, left side headaches, radiating pain towards her lower leg, pain in left thigh and pain in her left lower back. S.C. applied for medical and rehabilitation benefits that were denied by the respondent, Aviva, because it determined her injuries were predominately minor and therefore subject to the Minor Injury Guideline (“MIG”). S.C. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of the dispute.

ISSUES TO BE DECIDED

2The following issues are to be decided according to the Case Conference Order:

(i) Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?

(ii) Is the applicant entitled to a medical benefit in the amount of $1,067.50 for physiotherapy treatment recommended by Physiomed in a treatment plan submitted on June 4, 2018 and denied on June 19, 2018?

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

RESULT

3I find S.C.’s impairments are predominately minor injuries, as defined by the Schedule, and are therefore properly within the MIG. As the MIG limits have been exhausted, I find the treatment plan in dispute is not reasonable and necessary.

ANALYSIS

Applicability of the Minor Injury Guideline

4I find the medical evidence indicates that S.C. suffered predominately minor physical injuries as a result of the accident, and that she has not provided evidence that she has a pre-existing condition to justify removal from the MIG.

5The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. Applying Scarlett v. Belair Insurance, 2015 ONSC 3635, the applicant must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities. An applicant may receive payment for treatment beyond the cap but must provide compelling medical evidence from a medical practitioner of a pre-existing impairment documented before the accident, and evidence that remaining within the confines of the MIG will prevent maximal medical recovery. Similarly, an applicant may provide evidence of a psychological impairment or chronic pain to escape the MIG.

6I find that the medical evidence before the Tribunal reveals that the physical injuries S.C. sustained as a result of the accident are predominately minor injuries, as they fall squarely within the definition provided by the Schedule. Indeed, the injuries documented by S.C.’s family doctor after the accident are listed as: neck pain, left side headache, radiating pain towards lower leg, pain in left thigh and left lower back. As a result of her initial visit, Dr. Moharib diagnosed her with neck and back strains and cervicogenic headaches, noting that S.C. had the following restrictions: “pain and restricted range of motion, decreased forward flexion of the back, tenderness of left paralumbars and tenderness of leg muscles.” To combat her ailments, Dr. Moharib prescribed anti-inflammatories and physiotherapy, directions which S.C. followed. On their face and given the recommendations by her doctor, none of the impairments identified, in my view, justify treatment beyond the MIG.

7On this basis, I find that S.C.’s injuries were properly characterized as within the scope of the MIG. S.C. attended for physiotherapy and improvement was noted. Aviva paid for this treatment up to the MIG limits. Other than an OCF-24 MIG discharge form that was prepared by her physiotherapist, S.C. did not provide compelling evidence that her impairments required treatment beyond the MIG or that the cap will prevent her from maximal medical recovery from injuries that are all soft-tissue in nature. In submissions, S.C. only argues that the treatment is reasonable and necessary because she attended physiotherapy.

8On the totality of the evidence, I disagree and prefer the report of Dr. Mohammed, submitted by Aviva, who found that S.C. sustained sprain, strain and soft-tissue-type injuries as a result of the accident. Dr. Mohammed found that, from a musculoskeletal perspective, S.C.’s injuries were minor, and her accident-related injuries were “uncomplicated soft-tissues injuries related to the lumbar region.” Against the backdrop of the evidence and on S.C.’s complaints, I find this diagnosis to be proportional and reasonable to the injuries she sustained and the treatment she has received.

9As noted, an applicant may escape the limits of the MIG if they can demonstrate that a pre-existing impairment documented before the accident will prevent maximal medical recovery or, in the alternative, that they suffer from a psychological impairment or chronic pain. Here, while S.C. alleges she incurred $848.50 of physiotherapy treatment, I find that she has not provided evidence that she suffered from a pre-existing impairment documented by a health practitioner that would prevent maximal recovery, or a psychological impairment or chronic pain as a result of the accident that would necessitate and entitle her to treatment beyond the limits of the MIG. On the evidence, it seems that her argument for removal is based solely on her attendance at physiotherapy and the OCF-24.

10Accordingly, I find S.C. has fallen well short of her burden to prove, on a balance of probabilities, that her accident-related injuries are not minor and require treatment beyond the MIG.

Is the treatment plan for physiotherapy treatment reasonable and necessary?

11Having determined that S.C.’s impairments are properly within the MIG, it is my understanding that the MIG limits have been exhausted. In any event, I find the medical benefit in the amount of $1,067.50 for physiotherapy treatment is not reasonable and necessary. Again, the injuries identified in the clinical notes and the OCF-3 are all sprain and strain injuries. While S.C. argues ongoing pain and that treatment was beneficial, she did not provide continuous or corroborating evidence to support this or even records of treatment. Other than the OCF-24, she did not provide objective medical evidence that facility-based physiotherapy treatment beyond the MIG is even appropriate to treat her relatively minor reports of pain. For these reasons, I assign greater weight to the report of Dr. Mohammed, who commented on the OCF-18, finding that it was not reasonable and necessary to treat S.C.’s accident-related impairments. On the limited evidence before the Tribunal, I find no reason to depart from Dr. Mohammed’s opinion and find S.C. is not entitled to the treatment plan in dispute.

CONCLUSION

12I find S.C. sustained predominately minor injuries because of the accident which are treatable within the MIG. Further, I find she has not demonstrated that she had a pre-existing condition, sustained psychological impairments or chronic pain that would remove her from the MIG. I find she is not entitled to payment for the treatment plan in dispute as it is not reasonable and necessary.