B.B. v. Royal Sun Alliance Insurance (RSA), 2019 CanLII 94122

Citation: B.B. vs. Royal Sun Alliance Insurance (RSA), 2019 ONLAT 18-004099/AABS

Tribunal File Number: 18-004099/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:

B.B.

Applicant

and

Royal Sun Alliance Insurance (RSA)

Respondent

DECISION

PANEL:

Sandeep Johal, Adjudicator

APPEARANCES:

For the Applicant:

Nader Fathi, Paralegal

For the Respondent:

Loretta De Thomasis, Counsel

HEARD:

In Writing on: November 26, 2018

OVERVIEW

1The applicant was injured in an automobile accident on December 21, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2As a result of the accident, the applicant had physical complaints of neck pain, bilateral shoulder pain, upper back pain and pain in her legs.

3The applicant applied for medical benefits that were denied by the respondent because she was placed into the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule subject to treatment within the MIG?

ii. If the answer to issue (i) is no, then:

a) Is the applicant entitled to receive a medical benefit in the amount of $1,288.95 for physiotherapy treatment, recommended in a treatment plan by Allied Physio and Rehab, dated April 16, 2018 and denied on April 20, 2018?

b) Is the applicant entitled to receive a medical benefit in the amount of $1,022.81 for assistive devices, recommended in a treatment plan by Promed Rehab, dated May 29, 2018 and denied on June 6, 2018?

c) Is the applicant entitled to the cost of examination in the amount of $2,200.00 for a psychological assessment recommended in a treatment plan by Promed Rehab, submitted on March 7, 2018 and denied on March 26, 2018?

d) Is the applicant entitled to the cost of examination in the amount of $1,785.20 for a chronic pain assessment recommended in a treatment plan by Promed Rehab, submitted on May 29, 2018 and denied on June 6, 2018?

e) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5Based on the totality of the evidence before me, I find:

i. the applicant sustained predominately minor injuries as defined in the Schedule and she is subject to treatment within the MIG.

ii. as the applicant’s injuries are within the MIG, it is therefore unnecessary to consider the reasonableness and necessity of the treatment plans, the cost of examinations or the issue of interest.

ANALYSIS

Applicability of the Minor Injury Guideline

6The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

7Section 18(2) of the Schedule makes provision for injured persons who have a pre-existing medical condition to receive treatment in excess of the $3,500 cap. 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, that will prevent the injured person from achieving maximal recovery if benefits are limited to the MIG cap.

8The applicant bears the onus to establish her entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.²

Did the applicant sustain a predominately minor injury?

9I find that the applicant sustained impairments that are predominantly minor injuries for the following reasons.

10The applicant visited Dr. Hylten of Allied Physiotherapy & Rehab on January 25, 2018. Dr. Hylten wrote a letter stating that the applicant has bilateral knee pain and a recommendation for a diagnostic ultrasound on both knees to rule out any secondary pathology. I was not directed to or provided with the ultrasound and the applicant has not provided me with any submissions as to whether an ultrasound was done and what the results were.

11The applicant’s medical practitioners in various treatment plans³ list the applicant’s injuries as follows:

i. Sprain and strain of the thoracic spine

ii. Sprain and strain of lumbar spine

i. Injury of muscle and tendon of head

iii. Sprain and strain involving (fibular)(filial) collateral ligament of knee

iv. Chronic post-traumatic headache

v. Whiplash associated disorder (WAD-II) with complaint of neck pain with musculoskeletal signs

vi. Sprain and strain of shoulder joint

vii. Reaction to severe stress, and adjustments disorders

viii. Shock not elsewhere classified

ix. Malaise and fatigue

x. Mixed anxiety and depressive disorders

xi. Anxiety disorder, unspecified.

12These injuries, namely sprains, strains, whiplash associated disorder and clinically associated sequelae, sustained by the applicant fall within the definition of minor injury as set out in section 3(1) of the Schedule. I will address the applicant’s claims of psychological injuries separately below.

13The applicant attended a physiatry insurer examination (“IE”) assessment at the request of the respondent. That assessment took place on October 1, 2018 before Dr. Khan who diagnosed the applicant with bilateral knee sprain/strain and concluded that the applicant’s injuries fell within the definition of a minor injury under the MIG.

14The applicant provided submissions that she continues to experience pain and that she suffers an inability to perform housekeeping and home maintenance and a substantial inability to engage in caregiving activities. However, pain and the inability to engage in housekeeping, home maintenance or caregiving does not take a person outside of the MIG. I have not been directed to evidence to show that her injuries are not predominately minor.

15I find that the applicant sustained physical impairments that are predominantly minor injuries. I will now turn to whether the applicant suffered psychological impairments.

Does the applicant suffer from a psychological injury that takes her out of the MIG?

16I find that the applicant does not have a psychological injury that would remove her from the MIG and I put more weight on the report of the respondent’s psychological IE assessment for the following reasons.

17The applicant is relying on an initial psychological consultation from Dr. Vitelli who diagnosed the applicant with Adjustment Disorder and Specific Phobia (Driving Anxiety) and Adjustments with Anxious and Depressed Mood.⁴

18The respondent relies on its psychological IE assessment by Dr. McCutcheon from November 8, 2018 where Dr. McCutcheon opined that the applicant does not experience any DSM-5 psychiatric disorder or psychological impairment which would require psychological treatment.⁵

19The applicant’s psychological consultation by Dr. Vitelli notes that the applicant scored in the below average range in clinical testing for depression, anxiety and somatization. However, Dr. Vitelli concludes that a mental health consultation/treatment is strongly recommended.⁶

20The respondent’s IE assessor Dr. McCutcheon also conducted similar testing of the applicant and her scores were in the minimal range which were consistent with the applicant’s self-report. The testing results of the two reports are similar, however, the conclusions of the assessors were much different. I place less weight on the report of Dr. Vitelli as the results of his testing do no correspond with his conclusion.

21Furthermore, as a result of the onus being on the applicant to prove on a balance of probabilities that she suffers from a psychological injury, it is my finding that the applicant has not done so. The applicant has not provided any clinical notes and records of her family doctor or any other practitioner who she saw on a regular basis to corroborate that she may be suffering from psychological impairments that would warrant a referral other than from the clinic where Dr. Vitelli works.

22In my opinion, the applicant has not provided compelling evidence to show that she sustained a psychological impairment that is not a predominantly minor injury to take her out of the MIG.

Requirements to be removed from the MIG

23Even if the applicant’s injuries fall within the definition of minor injury, the applicant can still be taken out of the MIG in accordance with section 18(2) of the Schedule. The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:

a) Have a pre-existing medical condition;

b) The pre-existing medical condition was documented by a health practitioner before the accident; and

c) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 limit under the MIG.

24I find that the applicant has not satisfied her onus and has not provided any submissions or evidence of pre-existing conditions that satisfy the criteria in section 18(2) of the Schedule in order to be removed from the MIG.

25The applicant has provided clinical notes and records to show the applicant had a medical history of dizziness, vertigo, flat foot deformity and anemia, however, I am not directed to any evidence that these pre-existing injuries were aggravated by the accident and that treatment under the MIG limit would prevent the applicant’s recovery. Evidence of health problems prior to the accident is not sufficient on its own to support the applicant’s position that she should be removed from the MIG.

26As I have found that the applicant has not met her onus to show her injuries to be outside of the MIG, there is no need for me to conduct an analysis of whether the treatment plans or the cost of examinations are reasonable and necessary and accordingly, no interest is payable.

CONCLUSION

27For the reasons outlined above, I find that:

a. the applicant sustained predominately minor injuries as defined in the Schedule and she is subject to treatment within the $3,500 MIG limit.

b. as the applicant’s injuries are within the MIG, it is therefore unnecessary to consider the reasonableness and necessity of the treatment plans, the cost of examinations or the issue of interest.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Treatment and Assessment Plans (OCF-18) dated March 3, 2018, April 16, 2018 and May 29, 2018.
4. 4Dr. Vitelli Consultation Report dated March 23, 2018 at page 7.
5. 5Dr. McCutcheon Report dated November 8, 2018 at page 11.
6. 6Supra Note 4 at pages 6-7.