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.T.
Appellant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Thérèse Reilly
Appearances:
For the Appellant: Arvin Gupta, Counsel
For the Respondent: Mark Vella, Counsel
Heard: In Writing Hearing: May 10, 2019
OVERVIEW
1The applicant was involved in an automobile accident on August 13, 2018 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 Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The applicant submits that the applicant suffered a rotator cuff injury which was verified by ultrasound. The applicant maintains the respondent’s determination that the injuries were minor and fell within the Minor Injury Guideline (MIG) was made without a proper assessment of the injury. The respondent maintains its denial is proper and it provided proper notice of the medical or other reasons for the denial in compliance with section 38 (8) of the Schedule.
ISSUES
3The issues in dispute are as follows:
i. Did the applicant sustain a predominantly minor injury as defined under the MIG and thus limited to a $3,500 limit on treatment?
ii. If the answer to issue 3(a) is no, then:
a. Is the applicant entitled to receive a medical benefit for $200.00 ($1,288.95 less the amount approved of $1088.951) for physiotherapy services recommended by Reddy Physiotherapy in a treatment plan (OCF-18) submitted on November 12, 2016 and denied by the respondent on November 21, 2016?
b. Is the applicant entitled to receive a medical benefit in the amount of $2,569.10 for physiotherapy services recommended by Reddy Physiotherapy in an OCF-18 submitted on February 7, 2017 and denied by the respondent on February 22, 2017?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to the OCF-18 for $ 200.00 for physiotherapy services as no submissions or evidence was made regarding this issue. Therefore, this issue is dismissed for lack of evidence.
5For the reasons set out below, I find that the applicant’s injuries are within MIG. I find the respondent’s denial of the OCF-18 for physiotherapy services in the amount of $2,569.10 was proper. The respondent provided proper notice under section 38 (8) of the Schedule.
ANALYSIS
THE LAW – SECTION 38 AND THE MINOR INJURY GUIDELINE
6Section 38 (1) of the Schedule applies only with respect to medical and rehabilitation benefits payable under the MIG. Section 38 (8) states that within 10 business days after it receives an OCF-18 the insurer shall give the insured a notice that identifies the goods and services that it agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all other reasons that the insurer considers in determining that the goods and services are not reasonable or necessary.
7Section 38 (10) outlines that an insurer may give the insured notice to attend a section 44 examination if it has not agreed to pay for all goods and services. Under section 38 (11), if the insurer fails to give notice in accordance with subsection (8), the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and the insurer shall pay for all goods and services that relate to the goods and services starting from the 11th day after the day the insurer received the application and ending the day the insurer gives notice in subsection (8).
8The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. A sprain as defined includes a partial tear.
9Section 18 (1) limits recovery when the MIG applies to $3500. Section 18(2) of the Schedule makes a provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500. To access the increased benefits, the injured person’s healthcare provider must provide compelling evidence that the person has a pre-existing medical condition, documented prior to the accident, which will prevent the injured person from achieving maximal recovery if benefits are limited to the amount in MIG.
10The applicant submits that the respondent failed to provide proper notice in accordance with s. 38 of the Schedule, given that it failed to provide adequate medical reasons for its denial of the treatment plan.
11The applicant submitted the OCF-18 dated February 2, 2017 for $2,569.10 for physiotherapy services to the respondent.2 The OCF-18 completed by the physiotherapist describes the applicant’s injuries as mostly minor sprains and strains and includes an organic sleep disorder which is not described.
12The respondent referred the OCF-18 to a section 44 assessment completed by Dr. Osinga, orthopaedic surgeon and report issued April 5, 2017. At that time, Dr. Osinga concluded from a musculoskeletal perspective, there was no ongoing musculoskeletal impairment of significance at the cervical spine or lumbar spine. The applicant had soft tissue injuries to the lumbar and cervical spine. However, he noted there was a left shoulder impairment which impacted the strength and movement of the applicant’s arm. He indicated in the report that the left shoulder impairment may be consistent with a significant rotator cuff injury which was incompletely evaluated. However, he also stated based on his clinical examination that it is most likely a simple or minor injury. He suggested additional investigation such as an MRI could be completed and he would be open to re-evaluate the impairment at that time.3 Based on his findings the treatment plan was not reasonable and necessary.
13The applicant subsequently obtained an ultrasound of the left shoulder in October 2017 which revealed a partial thickness tear of the left shoulder. The results of the ultrasound were sent to the respondent by letter dated March 9, 2018.4
14The applicant argues the respondent did not forward the ultrasound to Dr. Osinga for evaluation. The applicant maintains the respondent failed to discharge its duty to properly assess the applicant’s injuries and that it should have had Dr. Osinga review the ultrasound or ought to have conducted further investigations, including referring the applicant to an MRI to allow the respondent to have a complete picture of the applicant’s injuries. The applicant argues the respondent should have referred the ultrasound to their doctors to have the tear considered due to the existing report and the incomplete evaluation.
15The respondent maintains it properly assessed the applicant and based on the results of the section 44 examination. Moreover, the ultrasound showed a partial tear of the left shoulder which is an injury that falls within the definition of a minor injury. It maintains the applicant has failed to present evidence that the injury falls outside the MIG, or that the treatment plan is reasonable or necessary or outline any pre-existing conditions to take the applicant out of the MIG. It states further that it has met its section 38 obligations. It scheduled a section 44 examination and sent its denial based on the MIG to the applicant on May 1, 2017 outlining the results of Dr. Osinga’s report.5
16I do not agree with the applicant that the respondent in these circumstances would be obliged to schedule an MRI to further evaluate the applicant’s condition. The applicant has an obligation to present medical evidence to support their position that the injuries fall in or outside of the MIG. While the respondent does have an obligation to continually adjust the file as new information and evidence is provided to them, I do not agree that in this case it would have obligated them to conduct an MRI. I also do not find that the ultrasound would have automatically negated the previous denial of the treatment plan.
17Moreover, I find that the respondent did provide “medical reasons and all other reasons” to deny the treatment plan as required by and in compliance with section 38(8) of the Schedule. The respondent denied the treatment plan for $2,569.10 based on the section 44 assessment report by Dr. Osinga,6 who concluded based on his examination that the injuries were within the MIG. The applicant was advised of this.
18Although the ultrasound obtained in October 2017 ultimately revealed a partial tear of the applicant’s rotator cuff, the impairment would still fall within MIG. On this basis, the respondent argues it properly denied the treatment plan on the basis that MIG applies and the treatment plan is not reasonable and necessary.
19The respondent met its obligation under section 38 (8) of the Schedule. The provisions of section 38 (11) do not apply.
CONCLUSION
20The applicant’s injuries are within the MIG. The respondent gave proper notice under section 38 (8). The provisions of section 38 (11) do not apply. The applicant is not entitled to payment of the OCF-18 in the amount of $2,569.10. The claim for interest is dismissed.
21The claim for the OCF-18 for $ 200.00 is dismissed.
Released: July 22, 2019
Thérèse Reilly
Adjudicator
Footnotes
- Written submissions of the respondent, paragraph 20.
- Written submissions of the respondent, tab 7.
- Assessment Report of Dr. Osinga, written submissions of the applicant, tab 3, pages 29-30.
- Letter from applicant’s Counsel March 9, 2018, Tab 5. Ultrasound, tab 3 written submissions of the respondent.
- May 1, 2017 letter, written submissions of the respondent, tab 10.
- Section 44 assessment report by Dr. Christopher Osinga, orthopaedic surgeon, dated April 5, 2017, written submissions of the applicant, tab 3.