E. O. v. BelairDirect, 2019 CanLII 76998

Citation: E. O. vs. BelairDirect, 2019 ONLAT 18-006718/AABS

Date: July 18, 2019

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:

E. O.

Applicant

and

BelairDirect

Respondent

DECISION

ADJUDICATOR:

Derek Grant

For the Appellant:

Andrej Rondas, Paralegal

For the Respondent:

Sabina Arulampalam, Counsel

Heard: In Writing

Hearing: February 19, 2019

OVERVIEW

1The applicant (“E.O.”) was injured in an automobile accident (“the accident”) on April 2, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). When his claims for benefits were denied by the respondent (“Belair”), E.O. applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

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

3If E.O.’s position is correct, then I must address if the medical treatment plans claimed are reasonable and necessary.

4If Belair’s position is correct, then E.O. is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by section 18(1) of the Schedule, and in turn, a determination of whether claimed benefits are reasonable and necessary will be unnecessary.

ISSUES

5Did E.O. sustain predominantly minor injuries as defined by the Schedule? Is his entitlement to medical benefits limited by the MIG?

6If E.O.’s injuries are not within the MIG, then I must determine the following issues if the medical benefit in the amount of $2,004.96 for chiropractic services recommended by Activa Clinic, and submitted in a treatment plan dated August 3, 2016, and denied on August 9, 2016 is reasonable and necessary?

RESULT

7Based on the evidence before me, I find that E.O.’s injuries are subject to treatment within the MIG. Therefore, I do not need to consider if the treatment plan is reasonable and necessary.

ANALYSIS

The Minor Injury Guideline

8The Guideline establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule 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.” Subsection 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for such injuries at a cap of $3,500.00, if the insured person sustains an impairment that is predominantly a minor injury in accordance with the Guideline.

9Section 18 further provides that the $3,500.00 limit does not apply to an insured person “if her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal medical recovery from the minor injury if the insured person is subject to the $3,500.00 limit.”

10The onus is on E.O. to prove on a balance of probabilities that his entitlement to medical benefits is not subject to the Guideline, and its prescribed $3,500.00 limit for minor injuries.

11For the reasons that follow, I find that the evidence establishes that E.O. sustained accident-related physical injuries, but that those injuries are defined as predominantly minor.

12To back his claims, E.O. relies on the following medical evidence:

i. Mississauga Hospital clinical notes and records, including diagnostic imaging³, which confirmed injuries to the right ankle and left shoulder.

ii. The disability certificate (OCF-3) of Chiropractor, Dr. Samar Arabnezhad, which diagnoses E.O. with sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of the lumbar spine, radiculopathy lumbar region, sprain and strain of left shoulder, sprain and strain of right ankle, headache, subluxation complex(vertebral) – cervical, thoracic, lumbar and difficulty sleeping.

13To rebut E.O.’s evidence, the Aviva relies on:

(i) The insurer examination (“IE”) by Dr. Julie Millard, Physiatrist, dated June 26, 2015. Dr. Millard noted left shoulder, right ankle and low back pain. Dr. Millard recommended independent home exercise and stretching. Dr. Millard opined that there was no objective evidence to suggest E.O.’s injuries were anything but minor. As such, she concluded that the treatment plan was not reasonable and necessary.

(ii) The IE by Dr. Allan Kopyto, General Physician, dated October 26, 2015. Dr. Kopyto noted ongoing back and ankle issues but found no objective impairment. As a result, Dr. Kopyto advised E.O. that the treatment plan was not reasonable and necessary.

14After my review of the evidence, I find that:

a. The injuries listed in the hospital records and the treatment plan are consistent with injuries that are considered to be ‘minor’.

b. The Family Physician, Dr. Chaudhri noted that E.O. suffered mild degenerative changes. In addition, Dr. Chaudhri made no recommendation for active treatment.

c. E.O. has failed to show me that his accident-related injuries are anything but minor or not sequelae of those injuries. E.O. has returned to many of his daily activities, albeit at a reduced rate, however, I am not provided with persuasive evidence that the injuries are anything but ‘minor’.

d. E.O. claims he suffers from chronic pain, however, provides no persuasive medical evidence to support this claim.

15Based on the combined evidence of the diagnostic reports, clinical notes and records and assessor reports, I find that E.O. has sustained minor injuries from the subject accident. Further, I find that E.O.’s own treating physician at no point recommended chiropractic treatment. As a result, E.O. has not satisfied his onus to prove that he has suffered anything but minor physical injuries as a result of the accident or that his pain complaints are not sequelae of those minor injuries.

16For the reasons stated above, I find that E.O. is not entitled to the chiropractic treatment plan.

CONCLUSION

17E.O. sustained predominantly minor physical injuries that fall within the MIG. Accordingly, E.O. is not entitled to payment for the treatment plan claimed in this application. His application is dismissed.

Released: July 18, 2019