B.C. v. Aviva General Insurance Company, 2019 CanLII 22186

Licence Appeal Tribunal

Tribunal File Number: 17-007448/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:

B.C.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Humberto Geovo, Representative

For the Respondent: Nicholas Carmichael, Counsel

HEARD In writing on: July 23, 2018

OVERVIEW

1The applicant was injured in an automobile accident on October 23, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the "Schedule"). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Are the applicant's injuries predominantly minor injuries as defined in the Schedule and subject to treatment funding limit within the Minor Injury Guideline ("MIG")?

2. Is the applicant entitled to receive a medical benefit in the amount of $4,044.38 for chiropractic services, relating to treatment plan dated January 31, 2017?

3. Is the applicant entitled to receive a medical benefit in the amount of $3,376.69 for chiropractic services, relating to treatment plan dated July 4, 2017?

4. Is the applicant entitled to receive a medical benefit in the amount of $2,082.85 for a psychological assessment, relating to treatment plan dated January 19, 2017?

5. Is the applicant entitled to receive a medical benefit in the amount of $2,550.40 for a physiatry assessment, relating to treatment plan dated April 19, 2017?

6. Is the applicant entitled to receive a medical benefit in the amount of $201.00 for the completion of a disability certificate dated August 21, 2017?

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

RESULT

3On a balance of probabilities, I find the applicant's injuries are predominantly minor injuries as defined in the Schedule. As a result, the applicant is bound by the funding limit of $3,500.00 provided by the MIG.

4The applicant has exhausted the funding for medical benefits provided by the MIG and is not entitled to any of the medical benefits in dispute.

5The applicant is not entitled to interest as no payments are overdue.

BACKGROUND

6The applicant was the passenger of a car which was struck from behind while stopped at a red light. The applicant was transferred by paramedics from the scene of the accident to the hospital due to complaints of neck and back pain. At the hospital, the applicant was diagnosed with soft tissue injuries, prescribed pain medication, and released within a few hours with a recommendation to follow up with a family physician. The applicant returned to the hospital three days later due to hip, back, and shoulder pain. Upon examination at the hospital, the applicant was again diagnosed with back pain and released.

7Four days following the accident, the applicant visited Dr. S. Hussein, family physician, and was diagnosed with soft tissue injuries and anxiety. Dr. Hussein completed a disability certificate (OCF-3) which noted the applicant had a disability as a result of the injuries, anticipated the disability would only last 9-12 weeks, and did not recommend any further investigation.

8The applicant initiated a claim for accident benefits and the applicant's chiropractor, Dr. J. Tran, and the respondent characterized the applicant's injuries as predominantly minor and falling within the MIG. The applicant disagrees with the characterization of the injuries as a result of the accident, and seeks funding for treatment beyond the MIG.

THE MINOR INJURY GUIDELINE (MIG)

9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in 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.

10If the applicant's injuries are determined to be minor and fall within the MIG, there are two avenues for the applicant to obtain medical treatment outside the MIG:

1. Establish the applicant has a documented pre-existing medical condition which would preclude recovery within the confines of the MIG; or

2. Establish the accident-related injuries fall outside the MIG – showing proof of a fracture, for example.

Does the applicant have a documented pre-existing medical condition which precludes recovery within the MIG?

11The applicant does not claim a pre-existing medical condition that precludes recovery within the MIG. Considering this, I will focus my analysis on the applicant's injuries from the accident and whether they fall within the MIG.

Do the applicant's injuries fall outside the MIG?

12The applicant claims to have a rotator cuff injury, chronic pain syndrome, and psychological injuries and submits the totality of the injuries sustained in the accident cannot be considered to be predominantly minor injuries.

13With respect to the applicant's rotator cuff injury, diagnostic imaging dated March 28, 2017 shows no sign of a complete tear of any muscles or ligaments and minor/minimal tendinopathy. Dr. Hussein diagnosed the applicant with a rotator cuff strain - which is consistent with the applicant's medical record. Considering this and the fact a strain is an injury listed within the MIG, I find this injury falls within the MIG.

Does the applicant have chronic pain syndrome or a psychological injury?

14The applicant submits Dr. Hussein and Dr. Chen, physiatrist, diagnosed the applicant with chronic pain syndrome and submits this injury is not included in the MIG. The applicant further submits Dr. Tran opined the applicant's smoking status, chronicity of injuries, and psychological yellow flags will preclude the applicant's recovery within the MIG.

15The respondent holds the applicant has suffered soft tissue injuries only. The respondent relies on the section 44 insurer's examination (IE) reports by Dr. G. Yee, orthopaedic surgeon, and Dr. V. John, neurologist. Dr. Yee concluded the applicant had suffered myofascial strains of the cervical spine, right trapezius, right shoulder, and lumbar spine and found the injuries to fall within the MIG. Dr. John assessed the applicant and found no neurological injury. The respondent highlights a report from an MRI taken on December 2, 2017 where Dr. J. Perng diagnosed minimal tendinopathy, which the respondent submits is within the MIG because there is no evidence of a complete ligament, tendon, or muscle tear in this report or others.

16The respondent disagrees the applicant has suffered a psychological injury as a result of the accident. It submits the notes of anxiety and insomnia on the disability certificate completed by Dr. Hussein are simply complaints dutifully taken down by a sympathetic family doctor and are outside Dr. Hussein's expertise. The respondent submits Dr. Hussein's opinion is undermined by the absence of any objective or formal testing, or referrals to any specialists, which would support the opinion.

17The respondent disagrees with the characterization of Dr. Hussein's diagnosis of chronic pain and submits Dr. Hussein only discussed chronic pain syndrome with the applicant and did not diagnose the applicant with having chronic pain syndrome. Further, the respondent submits Dr. Chen's opinion lacks credibility because it addresses psychological and neurological issues which are beyond the expertise of a physiatrist, is based entirely on the applicant's self-reported symptoms and not on any objective medical evidence.

18Considering the submissions and evidence before me and for the following reasons, I find the applicant has suffered predominantly minor injuries and is subject to the $3,500.00 funding limit provided by the MIG.

19Up front I must highlight that the term minor injury includes one or more of the injuries listed within it. This includes sprains, strains, subluxations, and whiplash associated disorders. The applicant fails to consider that the MIG can include a collection of soft tissue injuries as well any clinically associated sequelae.

20With respect to chronic pain, I agree with the respondent that Dr. Hussein did not diagnose the applicant with chronic pain syndrome. Dr. Hussein's clinical notes and records note chronic pain as well as a discussion about chronic pain syndrome with the applicant. I find a discussion about a condition is different than a diagnosis of the condition.

21Dr. Hussein's clinical notes and records do not to indicate the applicant's pain, or the symptoms of chronic pain, impair the applicant's functionality and are without evidence common in cases involving chronic pain syndrome. For example, there is no evidence of a recommendation for prescription pain medication since August 2017, less than one year after the accident. Likewise, Dr. Hussein did not diagnose the applicant with a psychological injury nor did Dr. Hussein prescribe any medication for a psychological injury or refer the applicant for psychological treatment.

22Dr. Chen also did not diagnose the applicant with chronic pain syndrome. Dr. Chen diagnosed the applicant with chronic pain disorder. This opinion was provided in the October 2, 2017 physiatry assessment and is without any explanation. The diagnosis of chronic pain disorder is undermined because it is unlike the other diagnoses included in Dr. Chen's report, such as soft tissue injuries and minor shoulder tendinopathy, which is followed up with evidence to support the diagnoses.

23Dr. Chen's opinion on the applicant's range of motion (ROM) limitations is unpersuasive because it is without any objective measurement. The mild ROM limitation in the right shoulder and moderate ROM limitation in the cervical and lumbar spine identified by Dr. Chen was not provided with any measurement of the applicant's ability.

24Lastly, Dr. Chen did not investigate the applicant's psychological health. This means the physiatrist's diagnosis of chronic pain disorder is without a psychological component.

25Based on the information before me, I find the applicant has residual soft tissue pain as a result of the accident. The medical record confirms this residual pain is sequela to the soft tissue injuries. As such, the injuries fall within the MIG and the applicant is subject to the $3,500.00 funding limit.

26Considering I have found the applicant to be subject to the funding limits provided by the MIG and that the applicant has exhausted this funding, an opinion on the applicant's entitlement to the remaining issues in dispute is unnecessary.

CONCLUSION

27The applicant's injuries are predominantly minor injuries as defined in the Schedule. As a result, the applicant is bound by the funding limit of $3,500.00 provided by the MIG.

28The applicant has exhausted the funding for medical benefits provided by the MIG and is not entitled to any of the medical benefits in dispute.

29The applicant is not entitled to interest as no payments were delayed or went overdue.