H.K.C. v. Aviva Insurance Canada, 2020 CanLII 27396

Citation: H.K.C. vs. Aviva Insurance Canada 2020 ONLAT 18-011956/AABS

Released Date: 03/25/2020

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:

H.K.C.

Applicant

and

Aviva Insurance Canada

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Counsel for the Applicant: Zhiyuan Hou

Counsel for the Respondent: Sarah Fasih

Heard in writing on: November 4, 2019

OVERVIEW

1The applicant was injured in an automobile accident on January 29, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a driver of a vehicle that, while stopped at a traffic light, was rear-ended by another vehicle. As a result, the applicant sustained physical injuries to her neck, right shoulder and lower back.

3The applicant applied for medical benefits that the respondent denied on the basis that her injuries fell under 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?

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

a) Is the applicant entitled to receive a medical benefit in the amount of $999.59 for treatment, recommended in a treatment plan by CK Chiropractic, dated December 6, 2016 and denied on January 24, 2017?

b) 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 does not have a minor injury as defined under the MIG as a result of a psychological impairment and, therefore, she is not subject to the monetary limit of the MIG.

ii. the applicant is entitled to a medical benefit in the amount $999.59 for chiropractic treatment as that treatment plan is reasonable and necessary; and

iii. the applicant is entitled to interest in accordance with the Schedule.

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 s. 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 s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

7The applicant bears the onus to establish her entitlement to coverage beyond the $3,500 cap for minor injuries on a balance of probabilities.²

8The applicant submits that as a result of the accident she was diagnosed with a psychological impairment, something not within the definition of the MIG. Therefore, she submits, she should not be treated within the MIG.

Does the applicant have a psychological injury to remove her from the MIG?

9For the following reasons, I find that the applicant has proven on a balance of probabilities that she has a psychological injury that would take her out of the MIG.

10The applicant relies upon the clinical notes and records of her family doctor, who diagnosed her as having anxiety and insomnia.³ The notes indicate the applicant visited her family doctor on several occasions after the accident, complaining of neck and back pain as well as difficulty sleeping and anxiety. Dr. Cho diagnosed the applicant with anxiety and insomnia, and prescribed Ativan to treat her anxiety on several occasions and also discussed counselling with the applicant.⁴

11The respondent submits the applicant has not adduced compelling evidence to indicate her psychological complaints rise to the level of an actual impairment such that the applicant should be removed from the MIG.

12The respondent further submits that the applicant was not referred to a psychologist, psychiatrist or any other specialist regarding her anxiety and insomnia issues and, likewise, there is no evidence that the applicant sought treatment for her anxiety and complaints apart from expressing them to her family doctor.

13The respondent relies upon the Tribunal’s decision in Y.X.Y. v. The Personal Insurance Company,⁵ in which the Tribunal held that psychological symptoms alone are not enough to be removed from the MIG but, instead, one must prove a psychological impairment. The respondent further submits that the applicant was not diagnosed with a psychological impairment and the applicant’s family doctor did not refer the applicant to a psychologist or psychiatrist.

14I do not agree with the respondent, nor am I bound by previous Tribunal decisions. In my opinion, a formal psychological diagnosis is not required in order to be removed from the MIG.⁶ As stated above, the applicant’s family doctor noted the applicant to have anxiety and insomnia over a period of time and also prescribed her medication to treat her anxiety symptoms.⁷ The clinical notes and records of the anxiety issues and the recommendation for medication and suggested counselling was noted to be around the time the treatment plan was submitted for approval to the respondent. I find this to be compelling evidence of a psychological impairment to warrant being removed from the MIG.

15The onus is on the applicant to prove and, on a balance of probabilities, I find that the applicant has a psychological impairment and therefore the applicant’s injuries are not within the definition of the MIG.

16I will now turn to discuss whether chiropractic treatment plan is reasonable and necessary.

Is the applicant entitled to a medical benefit for chiropractic treatment in the amount of $999.59?

17I find that this treatment plan is reasonable and necessary for the following reasons.

18The applicant submits she visited her family doctor to complain of persistent low back pain and left leg paresthesia and the treatment plan’s goals are to reduce pain and increase the applicant’s range of motion and strength and to help her return to her pre-accident work activities as well as achieve maximum functional recovery. According to the applicant these goals are all reasonable and necessary.

19The respondent submits the treatment plan is not reasonable and necessary and relies upon its insurer examination (“IE”) conducted by Dr. Getsos in a report dated January 24, 2017. In his report, Dr. Getsos opines that the applicant does not appear to have any ongoing accident-related injury or impairment and, as a result, the treatment being proposed is not warranted at this time.⁸

20The applicant’s family doctor has, since the accident, noted consistent complaints of pain, neck pain stiffness and lower of back pain.⁹ Her family doctor also recommends rehabilitation.¹⁰

21I place less weight on Dr. Getsos’ report because, although he concludes the applicant does not have any accident-related impairment, his clinical analysis and diagnosis do not support his conclusions.

22Dr. Getsos found the applicant to have some mild discomfort with palpitation in the cervical and lumbosacral region and diagnosed the applicant with a WAD 1 or WAD 2 type injury and a lumbosacral sprain/strain related to the accident.¹¹ Despite this, he goes on to conclude that the treatment is not reasonable and necessary because there are no ongoing signs of injury or impairment as a result of the accident.¹²

23As a result of the ongoing complaints of pain in the clinical notes and records of her family doctor, the diagnosis of lumbosacral sprain and strain and WAD 1 or WAD 2 type injury as well as continuing pain as noted by Dr. Getsos and the fact that the applicant reported to Dr. Getsos that she finds the treatment provided some improvement in her condition,¹³ I find that the applicant is entitled to treatment that provides relief and improves her condition. On a balance of probabilities, I find that the proposed treatment plan is reasonable and necessary.

ORDER

24As a result of the above, I find that:

i. the applicant does not have a minor injury as defined under the MIG as a result of a psychological impairment and therefore she is not subject to the monetary limit of the MIG.

ii. the applicant is entitled to a medical benefit in the amount $999.59 for chiropractic treatment as that treatment plan is reasonable and necessary; and

iii. the applicant is entitled to interest in accordance with the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Clinical Notes and Records of Dr. Cho dated February 12, 18, March 3, April 15, October 6 and December 29, 2016.
4. 4Ibid dated February 12, 2016, March 3, 2016, October 6, 2016 and counselling December 29, 2016.
5. 52017 CanLII 59515 (ON LAT)
6. 6Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543
7. 7Supra Note 3.
8. 8Dr. Getsos Report dated January 24, 2017 at pages 12-13.
9. 9Supra Note 3, Clinical Notes and Records dated February 12, 2016, March 3, 2016, July 21, 2016, December 22, 2016 and December 29, 2016.
10. 10Ibid on July 21, 2016.
11. 11Dr. Getsos Report dated January 24, 2017 at page 12.
12. 12Ibid at page 13.
13. 13Ibid at page 13.