R.H. v. Aviva General Insurance, 2019 CanLII 43876

Licence Appeal Tribunal

Date: 2019-04-18

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.H.

Appellant

and

Aviva General Insurance

Respondent

DECISION

PANEL: Christopher A. Ferguson, Adjudicator

APPEARANCES:

For the Applicant: Marni Miller, Counsel

For the Respondent: Karla Gnanasegaram, Counsel

HEARD In Writing on: November 19, 2018

OVERVIEW

1The applicant RH was involved in an automobile accident on August 27, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent, Aviva, denied her claim.

2Aviva denied RH’s claims because it determined that all of her injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). RH’s position is the opposite.

3If Aviva’s position is correct, then RH 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 $3,500.00 maximum benefit for minor injuries has been exhausted.

4If RH’s position is correct, then I must address the issue of whether the rehabilitation benefit disputed is reasonable and necessary.

ISSUES

5Did RH sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?

6If RH’s injuries are not within the MIG, then:

1. Is RH entitled to receive a rehabilitation benefit in the amount of $1,730.51 for physiotherapy and massage therapy services, recommended by Centric Health, in a treatment plan (“OCF-18”) dated August 12, 2015 and denied by the respondent on January 26, 2016?
2. Is RH entitled to interest on any overdue payment of benefits?
3. Is Aviva liable to pay to RH an award under Regulation 664, Automobile Insurance³ (“Regulation 664”) because it unreasonably withheld or delayed payments to the applicant?

RESULT

7RH’s appeal is denied. There are no overdue payments and therefore no interest owing to RH. The issue of an award is extinguished by RH’s failure to meet the onus on her to prove her entitlement to the disputed benefit.

REASONS

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 MIG defines in detail what these terms for injuries mean.

9The onus is on the applicant to show that her injuries fall outside of the MIG.⁴

Is Aviva prohibited from taking the position that the MIG applies?

10Under s. 38(8) of the Schedule, the insurer must provide the insured person a notice of what goods, services, assessments and examinations set out in the treatment plan it will approve or refuse to pay. The notice must include an explanation of the medical and all other reasons why the insurer considers any proposed goods, services, assessments and examinations—or the cost of them—not to be reasonable or necessary. This notice must be provided within ten days after it receives a treatment plan. The notice is commonly referred to as an Explanation of Benefits (EOB).

11Under s. 38 (11) of the Schedule, if the insurer fails to provide the insured person with notice in accordance with s. 38 (8), it is prohibited from taking the position that the MIG applies to the insured person – the insured person is, in effect, removed from the MIG.

12RH submits that Aviva cannot apply the MIG to her claim because it responded to an earlier claim for benefits on January 16, 2015 with an approval (that is, it agreed to pay the earlier claim in full after processing an OCF-18 dated January 5, 2015) “with no mention that the Applicant’s injuries fell within the MIG. No request for an OCF 23⁵ was made by the respondent.”

13Aviva contends that its approval cannot be construed as undermining its position with respect to the MIG because it only approved previous treatment plans that explicitly referenced RH’s placement in the MIG:

i. Part 4 of the OCF-18 dated January 5, 2015 indicated that RH’s injuries were predominately minor, while Part 6 describes injuries covered by the definition of “minor injury” and Part 9c notes no barriers to recovery.

ii. An OCF-23 dated September 10, 2014, which noted injuries covered by the definition of “minor injury”. Aviva initially approved the OCF-23 on September 16, 2014.

14I find that Aviva is not prohibited from taking the position that the MIG applies because RH’s argument that Aviva effectively precluded itself from applying the MIG when it approved her January 5, 2015 claim is untenable for the following reasons:

i. There is no basis for the notion that Aviva, when approving treatment plans, must assert whether or not the applicant is covered by the MIG. Section 38(8) requires the insurer to provide the medical and other reasons why a plan or its costs are not reasonable and necessary, and the application of the MIG would be one such reason. It makes no sense to provide reasons when approving claims, and nothing in my reading of s.38(8) provides any support for the unlikely contention that s.38(8) or (11) are intended to create an obligation to do so, or to “flag” a position on MIG.

ii. The evidence of the OCF-18 dated January 5, 2015 and OCF-23 dated September 10, 2014 clearly indicates that Aviva was operating within a position that the MIG applies to RH’s injuries. It approved medical benefits – within the MIG cap – in two claims submitted by RH before the disputed claim. Nothing in its expeditious handling of these claims can, in my view, fairly preclude Aviva from taking the position that the MIG applies to further claims from RH, especially when RH’s own documents support that position.

iii. RH’s assertion that Aviva’s acceptance of an OCF-18 with no request for an OCF-23 in January 2015 is somehow evidence of failing to take a position on the MIG, is in my view disingenuous given RH’s submission of an OCF-23 earlier in the process.

iv. Aviva’s first refusal of a disputed treatment plan was on August 24, 2015 and it was fully compliant with s.38(8); it was followed, after insurer’s examinations (IEs) by a letter dated January 6, 2016, telling RH that Aviva was maintaining its position on the MIG. I find that this entitles Aviva to argue that the MIG applies to RH’s injuries.

Did the applicant sustain predominantly minor physical injuries?

15RH submits that she should be removed from the MIG because she has a pre-existing condition.

16RH contends that she suffered post-concussive syndrome, which would remove her from the MIG.

Does RH have a pre-existing condition that would remove her from the MIG?

17Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit on treatment costs under the MIG.⁶

18The standard for excluding an impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

19RH submits that she has pre-existing condition of obesity that precludes recovery with treatment within the cap on funding imposed by the MIG. At the time of the accident, SH was 157.5 cm in height and weighed 136.2 kg. Her significant pre-accident medical history includes arthroscopic debridement of the right knee⁷ for osteoarthritis in 2010.

20RH submits that Aviva’s own examiner, Dr. Frank Loritz, general practitioner reported on December 22, 2015:

i. restriction in cervical flexion and extension, as well as restriction in left and right rotation. RH’s knees were noted to be hyperextensible, and her knee flexion was limited by the size of her leg;

ii. on page 5 of his report, Dr. Loritz opined that RH was significantly obese and this contributed to her delay in recovery.

21RH characterizes Dr. Loritz’s conclusion – that she falls within the MIG – as “nonsensical”, given his findings.

22RH goes on to assert that “It is trite to state that [SH’s] size and knee limitations had an effect on her ability to participate in rehabilitation.”

23RH fails to meet the test for establishing a pre-existing condition that would remove her from the MIG, because:

i. She provides no compelling evidence that her obesity was documented as a medical condition by a medical professional before the accident, as prescribed by s.18(2).

ii. Compelling evidence is more than merely credible evidence.⁸ RH’s submissions effectively argue that it is simply self-evident that her obesity affects her ability to participate in rehabilitation. This falls short of the required standard of proof for pre-existing condition. Gaps in her case include:

a. There is no explanation at all of why or how RH’s obesity would impair or prevent her from recovery within the MIG. This lack of information results in inadequate support for a finding of pre-existing condition.

b. I note that RH’s submission emphasizes the effect of her obesity on her knees: a medical note dated September 25, 2014 from Dr. Wayne Marshall emphasizes the impact of RH’s obesity on her knees, with no mention of the then-recent accident. RH fails to explain what this has to do with the injuries described in her submission that involve her neck, right shoulder, low back and headaches.

Did SH suffer a concussion from the accident that would remove her from the MIG?

24Concussions and post-concussion issues, if established, fall outside the MIG, because the MIG relates only to “minor injuries”, as defined in s. 3(1) of the Schedule, and the definition does not include brain injuries. This is uncontested by Aviva.

25RH submits a medical report⁹, from Dr. Adrian Fawcett, neurologist, to her family physician Dr. Thompson, which I find fails to prove that she sustained a concussion or post-concussion conditions as a result of the accident because:

i. Dr. Fawcett opines that based on RH’s complaints of cognitive issues, “it sounds like she may have some features of a post-concussive syndrome” and then writes “I wonder if this is influenced by her mood disorder.” I do not find this to in any way to be convincing, conclusive evidence of an accident-caused concussion or related injury. There is no diagnosis of concussion injuries, and the note raised issues about the cause of RH’s cognitive issues; RH herself, according to the report, wondered if her cognitive issues were related to work stress.

ii. RH’s submissions never referenced cognitive issues but did mention headaches, which could be a symptom of concussion syndrome. However, Dr. Fawcett links the headaches to migraine with aura, and recommends a course of action consistent with migraine treatment.

iii. Dr. Fawcett writes that RH reported headaches “ever since a motor vehicle collision in 2015” referring to a collision of June, 2015 reported to him by RH. RH indicated that she was not undergoing treatment at the time of the June 2015 accident and also indicated that her cognitive issues began after the headaches. There is no express finding that the 2014 accident that give rise to this appeal is a cause of RH’s current complaints. I find that I cannot attribute any of RH’s cognitive or headache symptoms to the 2014 accident with any certainty.

26RH has not met the onus on her to prove that she should be removed from the MIG. Accordingly, it is not necessary for me to determine the merits of the disputed treatment plan.

AWARD

27Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

28The issue of an award is extinguished by RH’s failure to prove entitlement to the benefits she seeks.

CONCLUSION

29RH’s appeal is denied. Accordingly, there are no overdue benefit payments and therefore no interest is owing to RH. The issue of an award is extinguished.

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. 3i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act
4. 4Scarlett v. Belair, 2015 ONSC 3635 para.24
5. 5An “OCF-23” is the form used by a health service or treatment provider to inform an insurer that treatment for an injured person will commence within the MIG.
6. 6Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, heading 4, “Impairments that do not come within this Guideline”.
7. 7That is, surgical removal of damaged cartilage or bone.
8. 8Scarlett v. Belair (FSCO Appeal P13-00014, August 1, 2013 cited by Aviva
9. 9The date of Dr. Fawcett’s report is unclear.