Licence Appeal Tribunal
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.J.
Appellant(s)
and
Aviva Insurance Canada
Respondent
AMENDED DECISION
PANEL: Christopher A. Ferguson, Adjudicator
APPEARANCES:
For the Applicant: Anna Korolkova, Paralegal
For the Respondent: Amanda Fowler, Counsel
HEARD: In Writing on: September 10, 2018
REASONS FOR DECISION
1The applicant "S.J." was involved in a motor vehicle accident ("the accident") on May 10, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 ("the Schedule").
2S.J. applied for benefits from the respondent, and applied to the Licence Appeal Tribunal (the "Tribunal") when his claims were denied.
3The respondent ("Aviva") argues 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 Guideline ("the MIG").2 S.J.'s position is exactly the opposite.
4If Aviva is correct, S.J. is then subject to the $3,500.00 limit on 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.
5I must decide whether S.J.'s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit, and if they are not, I must determine her entitlement to the medical benefit in dispute.
ISSUES IN DISPUTE
6Did S.J. sustain predominantly minor injuries as defined under the Schedule?
7If S.J.'s injuries are not within the MIG, then I must determine whether S.J. is entitled to the sum of $1,252.55 for a treatment plan prepared by Toronto Health Care denied February 5, 2016?
RESULT
8I find that S.J.'s injuries are predominantly minor as defined by the Schedule and fall within the MIG because she has failed to prove she sustained a chronic pain condition as a result of the accident.
9My finding with respect to S.J.'s injuries mean that she is not entitled to the benefit she claims.
10As I have denied S.J.'s claims, there is no interest payable by Aviva.
REASONS & ANALYSIS
Minor Injury Determination
11Section 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.
12Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
13The onus is on the applicant, in this case S.J., to prove that her injuries or impairments fall beyond the MIG.3
14S.J. submits that her injuries themselves exceed the definition of "minor injury" in s. 3(1) of the Schedule because she has chronic pain syndrome, and that this removes her from the MIG.
15Chronic pain, if established, removes a claimant from the MIG, because the prescribed definition of "minor injury" does not include chronic pain conditions.
Does S.J. suffer from a chronic pain condition?
16S.J. refers to a series of clinical notes and records (CNRs) from her family physician, Dr. Seung Sun Ko, in which the physician records her neck, shoulder and back pain and headaches over a number of months between 2015 and 2018. Dr. Ko, in 2018, suggested "probable fibromyalgia" in his notes and a referral to a specialist.
17S.J. also refers to a report by her rheumatologist Dr. Debra Dye-Torrington, dated April 16, 2018 noting her lower back pain, leg cramps and spasms, and difficulty sleeping due to pain.
18Aviva contends that S.J. does not suffer from a chronic pain condition as a result of the accident, indicating that there is simply no evidence in the applicant's submissions that she does. Aviva submits;
i. There is no diagnosis of chronic pain or any other chronic condition in any of S.J.'s medical documents.
ii. S.J.'s family physician makes no mention of S.J.'s accident-related complaints, nor does he link any of her complaints to the accident, after June 2015.
iii. Insurer's examinations by Dr. Michael Fung, GP, found no evidence of chronic pain. Dr. Fung's assessments, covered by his report of February 5, 2016, included a review of S.J.'s medical documentation. S.J. provides no expert opinion to contradict Dr. Fung's findings.
iv. The report by Dr. Dye-Torrington and submitted by S.J. linked S.J.'s pain complaints to non-accident sources, did not diagnose fibromyalgia or any other chronic condition and did not recommend further facility-based treatment or chronic pain assessment.
v. S.J. is carrying on a normal and busy life, which is inconsistent with a chronic pain condition. As evidence:
a. S.J. returned to normal activities of daily living shortly after the accident and her family physician, Dr. Seung Sun Ko, noted that her accident-related injuries resolved after one month.
b. S.J. returned to college in September 2015 as scheduled and currently holds a co-op position at a busy city hospital.
c. S.J. drives a vehicle and is independent with personal care and household chores.
19I conclude that S.J. has not met the onus on her to show that she suffers from chronic pain as a result of the accident. I reached this conclusion for the following reasons:
i. S.J.'s medical evidence provides no persuasive proof of a chronic pain condition. My own reading of the reports in S.J.'s submissions that after June 2015, there is no explicit linkage between pain complaints and the accident, and some suggestions as to alternative causes.
ii. Aviva's rebuttal evidence persuades me that S.J., on balance, does not have an accident-related chronic pain condition.
iii. None of the assertions in Aviva's submissions were contested by S.J.
20Because I conclude that S.J. has not met the onus on her to show that she suffers from chronic pain as a result of the accident, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary.
INTEREST
21Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
22The benefits claimed by the applicant are denied and therefore, no interest on overdue payments is due.
CONCLUSION
23S.J.'s injuries are minor and fall within the MIG.
24Because the S.J.'s injuries fall within the MIG, her claims are subject to a $3,500.00 cap imposed by s.18 of the Schedule, and the claimed benefits cannot be paid. It is accordingly unnecessary for me to determine the merits of the claimed treatment plans.
25There are no overdue payments and therefore no interest due on overdue payments.
Released: April 23, 2019
_____________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act, RSO 1990, c.I.8
- Scarlett v. Belair Insurance Co. and FSCO, 2015 ONSC 3635, para.24, cited by the respondent.