Released Date: June 5, 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:
L. A.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Domenic Pelligrino, Counsel
For the Respondent:
Maggie Morgan, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant (“L.A.”) was involved in a motor vehicle accident on June 4, 2016 (“the accident”) and applied for medical benefits from the respondent (“Aviva”).
2Aviva argues that all of L.A.’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“the MIG”).1 L.A.’s position is exactly the opposite.
3If Aviva is correct, L.A. is then subject to the $3,500.00 limit on benefits prescribed by s.18(1) of the Schedule and, in turn, a determination of whether the claimed benefits are reasonable and necessary will be unnecessary as the cost of the treatment sought exceeds the MIG limit.
4I must decide whether L.A.’s injuries are predominantly minor as defined by the Schedule and thus subject to a $3,500 treatment limit and, if they are not, I must determine her entitlement to the medical benefits in dispute.
FAILURE TO COMPLY WITH ORDER
5Aviva submits that L.A. failed to comply with the Tribunal’s Order dated February 12, 2019. The Order makes clear that “the parties discussed and agreed to the exchange of productions by no later than March 22, 2019.” Aviva further submits that the Order indicates “after which time, no additional new evidence may be submitted for use at the hearing.”
6Aviva takes the position that a report by Dr. J. A. Nathanson dated April 23, 2019 and a disability certificate (“OCF-3”) by Dr. Nathanson dated April 18, 2019 should not be considered by the Tribunal in considering the evidence to be relied on for this proceeding. Aviva submits that Dr. Nathanson’s OCF-3 was served on April 29, 2019 and the report, on May 6, 2019.
7L.A. makes no submissions on this issue. Upon review of the Order, I find that there was no “after which time…” wording; however, the Dr. Nathanson documents were clearly filed after the March 22, 2019 production deadline set out in the Order.
8As a result of the non-compliance, I allowed Aviva an opportunity to respond through further written submissions or by producing its own rebuttal report in response to Dr. Nathanson’s report.
9Aviva provided further written submissions on Dr. Nathanson’s report and OCF-3. In its submissions, Aviva claims that little weight should be given to the report as it relies on evidence that is not before me.2 Aviva further submits that the report comments on L.A.’s psychological impairment, which is beyond Dr. Nathanson’s scope of expertise.
10Upon review of the report, I note that Dr. Nathanson comments that L.A. now suffers from chronic pain as a result of the accident. There is no evidence that Dr. Nathanson is a chronic pain specialist or qualified to diagnose chronic pain.
11I agree with Aviva that these documents should not be admissible. L.A. had sufficient time between the date of the Order and the date for initial submissions to be filed to notify Aviva that she would be relying on documents that may not be obtained in time with the set deadlines.
12Aviva seeks no other remedy other than to request these documents not be considered. Aviva’s request is granted, Dr. Nathanson’s report and OCF-3 were not considered in the rendering of my decision. Even if I had considered the report and OCF-3, given the issues noted above with the report, it would not have produced a different outcome.
ISSUES TO BE DECIDED
13The issues in dispute are as follows:
(i) Did L.A. sustain predominantly minor injuries as defined under the Schedule?
(ii) Is the psychological assessment reasonable and necessary?
(iii) Is the psychological treatment reasonable and necessary?
(iv) Is the physiotherapy and chiropractic treatment reasonable and necessary?
(v) Is L.A. entitled to medication expenses incurred at Shoppers Drug Mart?
(vi) Is L.A. entitled to interest on any overdue benefits?
RESULT
14Based on a review of all the evidence put before me, I find that L.A.’s injuries/impairments meet the definition of “minor injury” under the Schedule. It is therefore unnecessary for me to consider whether the treatment plans are reasonable and necessary or determine whether interest is payable.
ANALYSIS
Does L.A have a pre-existing medical condition that removes her from the MIG?
15L.A. submits that her injuries themselves exceed the definition of “minor injury” in s. 3(1) of the Schedule because she has pre-existing injuries or impairments, that were exacerbated by the subject accident, and that this removes her from the MIG. I disagree.
16Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:
(i) There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
(ii) The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.
17The standard for excluding impairment on the basis of a pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it is in fact “intended and expected that the vast majority of pre-existing conditions will not do so.” The MIG clearly requires that a pre-existing condition must be shown with “compelling evidence” to prevent maximal recovery within the cap imposed by the MIG.3
18The medical evidence shows that L.A. suffered from pre-accident back pain as a result of a fall in August 2014. There is a clinical note dated September 2, 2014 from Family Physician, Dr. Hala Saleem, documenting lower back pain. There is no evidence that shows the lower back pain was present at the time of the accident. Further, there is no evidence that the pre-existing lower back pain would prevent L.A. from achieving maximum medical recovery under the MIG limit.
19At a June 8, 2016 visit with Dr. Saleem, L.A. reported her involvement in the accident and presented with a complaint of neck and low back pain. Dr. Saleem diagnosed L.A. with “back pain, right sacroiliac sprain, and right iliotibial band syndrome.” These physical injuries would be considered predominantly minor. There is no other medical evidence presented from Dr. Saleem. There is no evidence that the alleged pre-existing back and neck pain would prevent L.A. from achieving maximum medical recovery from the accident-related injuries under the MIG.
20As a result, I find the pre-existing lower back and neck pain does not remove L.A. from the MIG.
Did L.A. sustain physical injuries that remove her from the MIG?
21Although L.A. has provided medical evidence confirming she sustained accident-related injuries, none of the evidence shows that her injuries fall outside the MIG. In addition, the evidence submitted by Aviva confirms that L.A.’s physical injuries fall within the MIG.
22My finding that L.A.’s physical injuries fall within the MIG is supported by the following evidence:
(i) The OCF-3 (“OCF-3”) completed by Alexander Yu, a chiropractor, dated June 28, 2016, confirms L.A. has soft tissue injuries.4 The OCF-3 is consistent with the complaints seen in L.A.'s treatment records;
(ii) As discussed in paragraph 11, there is a single post-accident visit at which Dr. Saleem diagnosis L.A. with minor injuries;
(iii) L.A. submits that her pain relief has been due to reliance on pain medication. The evidence shows that prescription pain medication was used up to March 2017, however there is no evidence as to what the prescriptions were for nine months post-accident; and
(iv) On behalf of Aviva, Dr. Manoj Bhargava, Orthopaedic Surgeon, assessed L.A. on November 15, 2016. It should be noted that L.A. denied any previous neck/back pain or any previous injury. Dr. Bhargava diagnosed L.A. with “lumbar spine sprain/strain”. Dr. Bhargava found that L.A.'s injuries were minor in nature. I agree.
23The medical evidence submitted by L.A. and Aviva confirm that L.A.’s physical injuries are consistent with those that would be defined as a “minor injury”. The evidence supports and I find that L.A. suffered soft tissue injuries as a result of the accident. L.A. has therefore failed to persuade me that the physical injuries she sustained in the accident require treatment beyond that provided in the MIG.
Did L.A. sustain psychological injuries that remove her from the MIG?
24For the reasons that follow, I find that L.A.’s own evidence does not support that her psychological impairments would remove her from the MIG. My finding is based on the following:
(i) L.A. did not point me to any medical evidence outside of the treatment plans that support she suffered accident-related psychological impairments;
(ii) There is no evidence from Dr. Saleem of any psychological complaints, prescriptions for psychological medications, or any referrals for psychological treatment; and
(iii) L.A. reported5 to the s. 44 assessor Dr. Ratti that “that she chose to stop attending treatment because she found it intrusive and did not perceive a need for it.”
25Without the presence of an objective medical opinion providing a basis to indicate the existence of a psychological impairment that is not sequelae of minor injuries, I am unable to conclude that L.A. suffers from a psychological impairment that is not subject to the MIG.
26L.A. has not provided medical evidence to demonstrate that she is unable to recover under the MIG as a result of any psychological symptoms. Therefore, she has not met the onus of establishing her entitlement to psychological treatment beyond the MIG limits.
CONCLUSION
27L.A. has not met the onus on her to prove her injuries are not predominantly minor.
28As L.A.’s injuries are described as minor and thus fall within the MIG, and the evidence shows that amount has not been exhausted, L.A. may be entitled to receive treatment up to the $3,500.00 limit by following the protocol set out in the MIG.
29L.A.’s claim is dismissed.
Released: June 5, 2020
Derek Grant
Adjudicator
Footnotes
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Medical Note of Dr. Saleem dated October 25, 2013; Medical Note of Dr. Saleem dated October 29, 2013; Medical Note of Dr. Saleem dated August 17, 2014; Medical Note of Dr. Saleem dated September 2, 2014; Lumbar Spain/Sacroiliac Joints X-rays dated September 2, 2014; Right Ankle Ultrasound dated December 4, 2014; Right Ankle X-ray dated December 4, 2014; Medical Note of Dr. Saleem dated December 5, 2014; Medical Note of Dr. Saleem dated December 6, 2014; CT of the Head dated February 10, 2016; Medical Note of Dr. Saleem dated April 30, 2016; Treatment and Assessment Plan dated June 23, 2016; Medical Note of Dr. Saleem dated July 18, 2016; Treatment and Assessment Plan dated August 23, 2016; Referral Note of Dr. Ravi Mehta dated May 8, 2017; and Bilateral Heels X-ray dated March 6, 2019.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline.”
- OCF-3 lists the following accident-related injuries: pain in joint, myalgia, acute pain, muscle strain, headache, other headache syndromes, injury of muscle and tendon at neck level, other an unspecified injury of muscle and tendon at neck level, pain in thoracic spine, sprain and strain of thoracic spine, injury of muscle and tendon at thorax level, sprain and strain of sacroiliac joint, sprain and strain of lumbar spine, low back pain, dizziness and giddiness, state of emotional shock and stress; unspecified, malaise and fatigue, restlessness and agitation and nervousness.
- Insurer’s Psychology Assessment Report prepared by Dr. Ratti on February 13, 2020