F.Z. v. Aviva Insurance Canada, 2020 CanLII 35484

F.Z. v. Aviva Insurance Canada, 2020 ONLAT 19-003847/AABS

Citation: F.Z. v. Aviva Insurance Canada, 2020 ONLAT 19-003847/AABS

Released Date: 04/27/2020

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:

[F.Z.]

Applicant

and

Aviva General Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Sandeep Johal

APPEARANCES:

Paralegal for the Applicant: Marc Golding

Counsel for the Respondent: Mark Vella

Heard in writing on: January 13, 2020

OVERVIEW

1The applicant was injured in an automobile accident on July 8, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was a passenger in a vehicle that was stopped at a red light when it was rear-ended by another vehicle. As a result of the accident, the applicant sustained injuries to her neck, back, shoulders and knees as well as headaches, anxiety and sleep disorders.

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 according to the Tribunal’s Order released to the parties on November 29, 2019:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. If the answer to issue (i) is no, then is the applicant entitled to a medical benefit for chiropractic treatment in the amount of $1,849.84 recommended by Galatea Medical in a treatment plan (OCF-18) submitted on July 12, 2017 and denied on July 26, 2017?

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

5In the applicant’s submissions, she refers to two additional issues in dispute. The first concerns a medical benefit for assistive devices, while the second relates to the cost of a neurological assessment. Curiously, the applicant cites the same Tribunal Order mentioned above for her authority to argue these additional issues. However, the Tribunal’s Order makes plain that the additional issues were not listed to be heard.

6The respondent submits that the applicant incorrectly stated the issues in dispute.

7There does not appear to have been a motion brought to add any additional issues in dispute and these additional issues may have been raised through inadvertence in her submissions. In any event, it would be unfair to the respondent to allow the applicant to raise these issues at this late stage. As a result, the issues as listed in the Tribunal Order are the issues that will be addressed as part of this decision.

RESULT

8Based on the totality of the evidence before me, I find:

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

ii. as a result of having found the applicant’s injuries to be within the MIG and the MIG limits being exhausted, there is no need to determine the reasonableness and necessity of the chiropractic treatment plan; and

iii. as there are no outstanding benefits, the applicant is not entitled to interest.

ANALYSIS

Applicability of the Minor Injury Guideline

9The 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.

10The applicant bears the onus of establishing, on a balance of probabilities, her entitlement to coverage beyond the $3,500 cap for minor injuries.²

11The applicant’s Disability Certificate (OCF-3)³ completed by Dr.Ranjiljifroody, chiropractor, notes the applicant’s injuries as follows:

• Whiplash associated disorder [WAD2] with neck pain and musculoskeletal signs;

• Radiculopathy bilateral c-spine and L-spine;

• Sprain and strain of lumbar spine;

• Sprain and strain of thoracic spine;

• Sprain and strain of bilateral ankles;

• Other sprain and strain of other collateral ligament of bilateral knees;

• Tension type headache;

• Disorders of initiating and maintaining sleep [insomnia]; and

• Nervousness

12The applicant submits that her injuries from this current accident were complicated by a previous motor vehicle accident in January 2016. The applicant further submits that she had pre-existing degenerative disc disease of her neck and back, as well as arthritis in both knees and anxiety. As a result, it is the applicant’s position is that all of these injuries should all have precluded her from inclusion in the MIG.

13I place little weight on the psychological impairments as noted in the OCF-3 as it would be beyond the scope of practice of a chiropractor to opine on psychological impairments of the applicant or provide a psychological diagnosis.

14I find the physical injuries as listed in the OCF-3 and the clinical notes and records of the applicant’s doctor,⁴ which note the applicant to have tenderness in the paraspinal lumbar and cervical muscles, are all injuries that would fall within the definition of the MIG.

15I will thus discuss whether the applicant has compelling evidence of psychological impairments aside from the opinion of her chiropractor or if her pre-existing injuries are sufficient to remove her from the MIG.

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

16I find that the applicant has not proven on a balance of probabilities that she has a psychological injury that would take her out of the MIG for the following reasons.

17The applicant submits and relies upon a psychological screening report by Dr. Gabidulina, dated November 28, 2016. This pre-screening self-report notes that the applicant’s mood has changed as she gets easily upset and has a lack of control with respect to her emotions as well as anxiety while in a vehicle and changes in her sleeping habits.⁵

18The respondent relies upon the opinion of Dr. MacKay, psychologist, who assessed the applicant as part of an insurer examination (“IE”). During the IE, the applicant self-reported that she becomes irritable on occasion and can even become angry but she did not think she has psychological problems or that she is in need of psychological treatment.⁶ Dr. MacKay conducted clinical testing and opined that the applicant does not have an accident-related psychological diagnosis or clinically significant psychological impairment.⁷

19The onus is on the applicant to prove and, without any corroborating evidence from a treating practitioner, such as the applicant’s family physician or other treating practitioner who may have noted psychological symptoms that may warrant an additional investigation or treatment, I find that the pre-screening report is not compelling evidence on its own.

20With the onus being on the applicant to prove on a balance of probabilities, I am not persuaded that the applicant has a psychological impairment that would remove her from the MIG.

21I will move on to discuss whether the applicant’s pre-existing injuries are sufficient to remove her from the MIG.

Requirements to be removed from the MIG

22Even 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 s. 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 person’s treating health practitioner determines and provides compelling evidence that 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.

23I find that the applicant has not satisfied her onus and has not provided any submissions or evidence of pre-existing conditions that satisfy all the criteria in s. 18(2) of the Schedule in order to be removed from the MIG for the following reasons.

24The applicant submits that she had pre-existing injuries as noted in the clinical notes and records of her family doctor as well as the cervical spine imagining and bilateral knee x-rays.⁸ However, it is insufficient to escape the definition of the MIG based on the production of pre-existing injuries alone. That does not satisfy the requirements of s.18(2). What is missing is the last component, namely evidence from a medical practitioner that the pre-existing injury will prevent maximal recovery from the minor injury if the applicant is subjected to the monetary limit under the MIG.

25I have not been directed to any evidence that her pre-existing injury will prevent maximal recovery under the MIG. Without evidence speaking to that third component of s. 18(2), the applicant is unable to be removed from the MIG as she is unable to satisfy the requirements under the Schedule.

26As I have found that the applicant has not met her onus to show that her injuries are outside of the MIG, and as the MIG limits have been exhausted, there is no need for me to conduct an analysis of whether the chiropractic treatment plan is reasonable and necessary.

ORDER

27As a result of the above and on a balance or probabilities, I find that:

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

ii. as a result of having found the applicant’s injuries to be within the MIG and the MIG limits being exhausted, there is no need to determine the reasonableness and necessity of the chiropractic treatment plan; and

iii. As there are no outstanding benefits, the applicant is not entitled to interest or an award.

Released: April 27, 2020

___________________________

Sandeep Johal, Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Applicant’s Brief of Documents Part 1 at Tab 2.
4. 4Ibid at Tab 8.
5. 5Ibid at Tab 7.
6. 6Respondent Written Submissions at Tab 5, Psychological Report dated February 13, 2017 at pages 5-6.
7. 7Ibid at pages 7-8.
8. 8Applicant Written Submissions at Tabs 8-9.