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:
C.R.
Appellant(s)
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Anita Goela
APPEARANCES:
For the Applicant: Pamela Rowatt, Counsel
For the Respondent: Jennifer Walters, Representative Catherine Zingg, Counsel
Held by Teleconference: October 22, 2018 with written submissions filed in advance
REASONS FOR DECISION
OVERVIEW
1The applicant was involved in an automobile accident on January 6, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service ("Tribunal").
2The respondent denied the applicant's claims because it determined that all of the applicant's injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline1 ("the MIG"). The applicant's position is the opposite.
3If the applicant's position is correct, then I must address whether the medical treatment claimed is reasonable and necessary.
4If the respondent's position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation 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 applicant has already exhausted the $3,500.00 maximum benefit for minor injuries.
5The applicant included an affidavit with her written submissions, which she was cross-examined on by the respondent by teleconference. No other witnesses testified during the teleconference portion of the hearing.
ISSUES
6The issues I have to decide in this appeal are as follows:
i. Are the applicant's injuries predominantly minor in nature as defined by the Schedule and therefore subject to the MIG?
ii. Is the applicant entitled to a medical benefit in the amount of $3,015.00 for physiotherapy services and an individual yoga program as recommended and set out in a treatment plan dated January 13, 2016 submitted by [Health & Wellness Centre]?
iii. Is the applicant to interest on any overdue amounts owing?
iv. Is the applicant entitled to an award under s.10 of Regulation 664 because the respondent unreasonably withheld or delayed payment of a benefit?
RESULT
7I find that the applicant's injuries fall within the MIG. It is therefore unnecessary to consider the reasonableness or necessity of the treatment plan or the issues of interest and an award.
ANALYSIS
The Minor Injury Guideline
8Section 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 and includes any clinically associated sequelae to such an injury." The Schedule also defines what these terms for injuries mean.
9Section 18(1) limits the entitlement for medical and rehabilitation benefits for predominantly minor injuries to $3,500. Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition documented by a health practitioner before the accident that will prevent maximal recovery may be exempted from the $3,500 cap on benefits.
10The onus is on the applicant to show that her injuries fall outside of the MIG.2
Did the applicant sustain predominantly minor physical injuries? Does the applicant suffer from chronic pain?
11The applicant submits the following evidence to support her claim:
i. as a result of the accident, she sustained moderately severe chronic pain injuries to her neck, shoulders, right hip and back;
ii. she has been diagnosed with chronic pain syndrome; and
iii. she experiences continuous functional impairment and disability.
12The respondent submits the following evidence to rebut the applicant's claim:
i. according to Dr. Lam, a general physician and the respondent's assessor under s. 44 of the Schedule, the applicant had reached maximal medical recovery in relation to the accident-related soft tissue injuries sustained;
ii. the applicant has presented a confusing history with respect to her impairment and limitations;
iii. the applicant is very functional;
iv. there are non-accident related physical and emotional events that may contribute to her complaints; and
v. the costs outlined in the treatment plan were not consistent with the hourly rate for physiotherapy services outlined in the current Professional Services Guideline.
13The applicant submits that she suffers from chronic pain, which removes her from the MIG, because the prescribed definition of "minor injury" does not include chronic pain conditions.
14On balance, I do not find that the applicant has presented persuasive medical and other evidence that she suffers from chronic pain. I find that the applicant's physical injuries are "minor injuries" as defined by the Schedule.
15In support of her chronic pain syndrome diagnosis, the applicant submitted reports from Dr. Alpert, orthopedic specialist, dated December 20, 2016 and Dr. Berbrayer, physical medicine and rehabilitation specialist, dated March 3, 2017. In those reports, when the applicant was examined by the specialists, she reported pain and tenderness at various sites. Both specialists conclude that the applicant's pain has evolved into a chronic pain syndrome. I note that both reports do not find objective evidence of impingement, tenderness or instability.
16In the applicant's affidavit and cross-examination, she outlined how the chronic pain has impacted her ability to work full-time as an IT specialist and limited her activities of daily living.
17The applicant indicates that she had to reduce her work hours to 15-20 hours per week, cannot clean the whole house in one day, requires assistance with heavy lifting and cannot hike and ski for as long as she could before the accident. The applicant regularly attends yoga and in April 2016 participated in a 30-day yoga challenge. The applicant indicated that she modified her participation in the yoga sessions.
18During cross-examination, the applicant testified that she went snowshoeing in March 2014, gardened in May 2014, went on an active holiday in December 2014 and tripped on stairs in May 2015.
19While I found the applicant's testimony to be credible and consistent, her testimony supports the respondent's position that the applicant is highly functional and active. I am left with doubts regarding the severity of her chronic pain and whether it causes objective functional impairment. The applicant relies on evidence of her changed functionality. However, I do not find that the extent of her functional impairment is significant and I am also left with doubts that her ongoing complaints of pain are accident-related. On balance, I cannot reconcile the applicant's activity level with a diagnosis of chronic pain.
20Other than the diagnosis of chronic pain, the applicant has not submitted any other basis for removal from the MIG. Therefore, as indicated above, I find the applicant's injuries to be minor.
21The applicant submits that the applicant's diagnosis of chronic pain syndrome is uncontroverted as the respondent did not produce addendum reports from its s. 44 assessor after the reports of Dr. Alpert and Dr. Berbrayer were produced. I disagree. From my review, the reports of Dr. Alpert and Dr. Berbrayer did not add anything new to the body of medical evidence that the respondent had at the time of its s. 44 assessment with Dr. Lam.
22Because I have found the applicant's injuries to fall within the MIG and the applicant has already exhausted the $3,500.00 maximum benefit for minor injuries under the MIG, it is unnecessary for me to assess whether the claimed treatment plan is reasonable and necessary.
CONCLUSION
23For the reasons outlined above, I find that the applicant sustained predominantly minor injuries that fall within the MIG. Accordingly, she is not entitled to the treatment plan, interest or s.10 award claimed in this application. Her application is dismissed.
Released: February 15, 2019
___________________________
Anita Goela
Adjudicator
Footnotes
- 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 at para.24