A.M. v. Aviva General Insurance Company, 2019 CanLII 63354

Licence Appeal Tribunal

Tribunal File Number: 18-003498/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:

A.M.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Lisa Bishop, Representative

For the Respondent: Alexander Hartwig, Counsel

HEARD In writing on: January 14, 2019

OVERVIEW

1The applicant was injured in an automobile accident on April 28, 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 medical benefits from Springdale Physiotherapy Services as follows;

a. $2,930.00 for physiotherapy proposed in a treatment plan dated September 19, 2016;

b. $2,895.00 for physiotherapy proposed in a treatment plan dated December 29, 2016; and

c. $3,491.00 for psychological treatment proposed in a treatment plan dated December 29, 2016?

3. Is the applicant entitled to payment for the cost of examinations proposed by Springdale Physiotherapy Services as follows;

a. $2,130.00 for a psychological assessment proposed in a treatment plan dated December 29, 2016; and

b. $1,350.00 for a functional abilities evaluation proposed in a treatment plan dated February 2, 2017?

4. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant has not met the evidentiary burden to establish, on a balance of probabilities, the injuries as a result of the accident are not 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 an award pursuant to section 10 of Regulation 664.

6The applicant is not entitled to interest as no payments are overdue.

BACKGROUND

7The applicant was the driver of a car which was struck from behind as the last part of a three car chain reaction collision while stopped at a red light. The applicant did not seek immediate medical attention following the accident but attended a walk-in clinic about a week later. The applicant was assessed at the clinic and prescribed rest, physiotherapy, and prescription anti-inflammatory medication and muscle relaxants.

8The applicant initiated a claim for accident benefits and the applicant’s treatment facility, Springdale Physiotherapy Services (“Springdale”), 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 to have 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 ongoing pain causing physical limitations and psychological injuries as a result of the accident. The applicant submits these injuries are not predominantly minor injuries and the MIG should not apply as a result.

Does ongoing pain remove the applicant from the MIG?

13For the following reasons, I find the applicant’s ongoing pain does not remove the applicant from the MIG.

14The applicant’s claim that ongoing back pain has impacted functionality to the point of a physical disability is not supported by the evidence. The applicant was evaluated at a walk-in clinic a week following the accident and presented with full range of motion in the spine. Similarly the applicant’s family physician, Dr. Singh, assessed the applicant following the accident and found range of motion within normal limits. These findings were supported by the findings of Dr. B. Karabatsos, orthopaedic surgeon in a report dated October 26, 2016, who found no evidence of any impairment. In cases where an insured is removed from the MIG on account of ongoing pain and/or chronic pain, it can be because the pain is so debilitating it drastically impacts the insured’s range of motion of the affected area, which is not the case here.

15The applicant has returned to pre-accident activities. In ongoing and/or chronic pain cases, the ongoing and/or chronic pain has impacted the insured’s ability to engage in their pre-accident activities. This is not the case of the applicant, who was able to return to work and continues to drive.

16The applicant’s two visits to Dr. Singh and conservative use of prescription medication following the accident do not meet the threshold to remove the applicant from the MIG. The records from Springdale do not support the applicant’s claim either. The Springdale records consistently note the applicant’s neck and upper back pain as slight and improving. If the applicant’s ongoing pain were debilitating and affecting functionality, it is unlikely the applicant or the treating healthcare practitioners would characterize it as slight or improving. Likewise, if the applicant’s ongoing or chronic pain met the threshold to remove the applicant from the MIG, there would likely be an excessive dependence on health care providers. The evidence shows no excessive dependence on health care providers.

Psychological injuries

17I find the evidence presented does not establish the applicant has psychological injuries which require treatment outside the MIG.

18I prefer the respondent’s psychological assessment report by Dr. S. Moshiri dated October 11, 2018 (“the Moshiri report”) over the report by Dr. A. Shaul, dated December 9, 2016 and submitted by the applicant (‘the Shaul report”). The Moshiri report found the applicant did not have any psychological injury as a result of the accident whereas the Shaul concludes the applicant’s presentation indicates the applicant is suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Somatic Symptom Disorder with predominant pain.

19I prefer the Moshiri report primarily because there is no evidence to support the findings in the Shaul report, aside from the report itself. There are no complaints of a psychological nature in the family physicians records and no complaints are noted on the disability certificate or in the physiotherapy records.

20I also prefer the Moshiri report over the Shaul report because the self-reported injuries and impairments, or lack thereof, in the Moshiri report are consistent with the applicant’s medical record. The Shaul report states pain limits the applicant’s mobility yet the physical assessments at the time show normal range of motion.

21Lastly, the applicant reported feeling mentally fine to Dr. Moshiri and also stated “psychologically the accident had not affected my activities of daily living.” The applicant indicated only a need for further physiotherapy and reportedly felt psychological treatment was not necessary.

22Considering I have found the applicant to be subject to the funding limits provided by the MIG and the fact the applicant has exhausted this funding, a finding on the applicant’s entitlement to the remaining issues in dispute is unnecessary. Likewise, I have found that no payments were due and therefore, no payments went overdue and no interest is payable as a result.

DID THE RESPONDENT UNREASONABLY WITHOLD PAYMENT?

23Pursuant to section 10 of Regulation 664, an award may be granted when the Tribunal finds that the respondent has unreasonably withheld payment of a benefit. I have reviewed the submissions and evidence and find the applicant is not entitled to an award because the respondent did not unreasonably withhold payment of any benefits.

24The applicant’s claim that the respondent treated the applicant as an adversary, did not provide sufficient medical reasons to deny benefits, and denied benefits contrary to medical recommendations is void of any example of such behaviour and is not supported by the evidence.

25The respondent submits the decision to deny medical benefits was based on findings in the insurance examination reports and provided the corresponding Explanation of Benefits to support this claim. I have reviewed the relevant Explanation of Benefits and find they contain medical reasons and do not support the applicant’s claim for an award.

CONCLUSION

26The 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.

27The applicant has exhausted the funding for medical benefits provided by the MIG and is not entitled to any of the medical benefits in dispute.

28The applicant is not entitled an award pursuant to section 10 of Regulation 664.

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