R.D. v. Aviva General Insurance, 2020 CanLII 42738

R.D. vs. Aviva General Insurance, 2020 ONLAT 19-007395/AABS

Citation: R.D. vs. Aviva General Insurance, 2020 ONLAT 19-007395/AABS

Released Date: 06/10/2020

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:

R.D.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Sandeep Johal

APPEARANCES:

For the Applicant:

Kateryna Vlada

For the Respondent:

Cara L. Boddy

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on January 19, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant, who is a minor, was a passenger seated in the back seat of her mother’s vehicle when it was rear-ended by another vehicle. As a result, the applicant submits she sustained injuries to her head, neck and back as well as psychological impairments.

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 in s. 3 of the Schedule, subject to treatment within the $3,500 monetary limit of the MIG?

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

i. Is the applicant entitled to receive a medical benefit in the amount of $3,117.50 for physiotherapy treatment, recommended by Mediplus Physiotherapy and Rehabilitation Centre, in a treatment plan submitted June 29, 2017, and denied by the respondent on July 4, 2017?

ii. 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’s injuries are predominantly minor injuries as defined under the MIG. As a result of the monetary limit of the MIG being exhausted, there is no need to determine the reasonableness and necessity of the treatment plan in dispute; and

(ii) as there are no benefits outstanding, there is no interest that is payable.

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 her injuries are not “minor injuries” as per the definition under the Schedule and she should be removed from the MIG based on ongoing pain in her lumbar spine and a psychological diagnosis of Adjustment Disorder provided by Dr. Hewchuck, psychologist.

9According to the applicant’s Disability Certificate (OCF-3) dated February 16, 2017 the applicant’s injuries as listed as:³

a. Sprain and strain of joints and ligaments of her neck;

b. Whiplash associated disorder (WAD2) with complaints of neck pain; with musculoskeletal signs;

c. Sprain and strain of the thoracic spine; and

d. Sprain and strain of the lumbar spine.

10The clinical notes and records of her family doctor, Dr. Kara-Shariff dated February 6, 2017 notes the applicant’s injuries to be a soft-tissue strain of her neck and back.⁴

11The applicant’s chiropractor, Rudi Chan submitted an OCF-23 (Treatment Confirmation Form) dated February 9, 2017 which also notes the same sprain and strain type injuries as those listed in the OCF-3, however under the “Additional Comments” section on the last page of the form states that “The severity, quality and nature of [the] injuries do not place [the] patient in [the] MIG, however in order for the patient to receive approved treatment we are submitting an OCF-23.”⁵ He further opines that the applicants ongoing pain and tenderness are a barrier to recovery.

12The respondent submits the injuries listed on the OCF-3 are sprain and strain type injuries which are by definition within the MIG and the applicant’s submission of ongoing pain in the lumbar region, is also a form of a “minor” injury under the MIG. Furthermore, the respondent submits that the clinical notes and records of the treating clinic, Mediplus Physiotherapy and Rehabilitation Centre from July 11th, and 20th, 2017 note the applicant’s cervical spine has undergone a 75% improvement and is improving and getting better.⁶

13In my view, after a review of the evidence, I find that the OCF-3, the OCF-23, and the clinical notes and records of the applicant’s family doctor noting sprain and strain type injuries, to be “minor” injuries which fall under the definition of the MIG.

14With respect to the applicant’s submission and chiropractor, Rudi Chan noting ongoing pain and tenderness as a barrier to recovery, in my view, ongoing pain and tenderness are not sufficient to be removed from the MIG. The applicant’s injuries must be outside of the definition and in this case, I find that the evidence suggests that her injuries fall within the definition of the MIG.

15I will now turn to discuss whether the applicant has a psychological injury which would remove her from the definition of the MIG.

Does the applicant have a psychological injury?

16I find that the applicant has not provided sufficient and compelling evidence of a psychological impairment that would warrant her removal from the MIG for the following reasons.

17The applicant submits that Dr. Chan identified psychological distress as an issue that required further assessment on February 16, 2017; Dr. Levy, physician, noted the applicant’s complaints of emotional distress and periodic crying on December 12, 2018; and, Dr. Hewchuck, psychologist, provided a provisional diagnosis of Adjustment Disorder.

18The respondent submits that the provisional diagnosis of an adjustment disorder is not the equivalent of an actual diagnosis and the provisional diagnosis was not made by Dr. Hewchuck, but rather by Ms. Razumova who was acting under the supervision of Dr. Hewchuck.

19Furthermore, the insurer examination (“IE”) assessment conducted by Dr. Levy did not state that the applicant had emotional distress and periodic crying as submitted by the applicant. On page 4 of his report dated January 4, 2018, he stated as follows:

[The applicant] describes her mood as normal in that she denies symptoms of loss of interest in her usual activities, feelings of helplessness or hopelessness, or any suicidal ideation. However, she reports intermittent crying, intermittent irritability, and intermittent loss of concentration. [The applicant] reports intermittent passenger anxiety that is not limiting her travelling in a vehicle.⁷

20It is the respondent’s position that when the full passage is considered, the applicant’s psychological symptoms are entirely benign and do not constitute an adjustment disorder.

21In my view, the onus is on the applicant to prove on a balance of probabilities and I find that the applicant has not done so.

22Dr. Chan is a chiropractor and it would be beyond his scope of practice to opine on psychological impairments of the applicant. Dr. Levy’s IE assessment noted the self-reports of the applicant with respect to intermittent crying however, there was no diagnosis of a psychological condition. Further, the provisional diagnosis of an adjustment disorder was as a result of an OCF-18 completed by Dr. Hewchuk, however there is no evidence in support of the OCF-18. An OCF-18 on its own is not sufficient and compelling evidence.

23I have not been directed to any evidence to corroborate the OCF-18 from the applicant’s family physician or other treating practitioner noting any psychological symptoms that would warrant a referral or for the need of treatment.

24As a result, I find that the applicant has not satisfied her onus on a balance of probabilities that she has a psychological impairment that would warrant her removal from the MIG.

ORDER

25As a result of the above, I find that:

i. the applicant’s injuries fall within the definition of the MIG;

ii. as a result of the MIG limits being exhausted, there is no need to conduct an analysis of whether the treatment plan is reasonable and necessary; and

iii. as there are no outstanding benefits, there is no interest that is payable.

Released: June 10, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at para. 24.
3. 3Written Submissions of the Applicant at Tab 3, page 6.
4. 4Ibid at Tab 2, page 5.
5. 5Ibid at Tab 8, page 7.
6. 6Written Submissions of the Applicant at Tab 4, pg. 3.
7. 7Written Submissions of the Applicant at Tab 6, page 4.