Citation: R. A. vs. Aviva Insurance Company, 2020 ONLAT 19-003698/AABS

Tribunal File Number: 19-003698/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:

R. A.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Rania Hafez

For the Respondent:

Nabila Majizadeh

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on November 29, 2014 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2The respondent determined the applicant’s injuries fell within the Minor Injury Guideline (the “MIG”) and refused to pay for certain medical benefits. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

1. Has the applicant sustained predominantly minor injuries as defined under the Schedule?

2. Is the applicant entitled to a payment for the cost of examination in the amount of $2,055.32 for a psychological assessment recommended by Princeton Hill Medical Assessments in a plan dated April 9, 2018?

3. Is the applicant entitled to a medical benefit in the amount of $2,569.40 for physiotherapy treatment recommended by Mackenzie Medical Rehab Centre in a treatment plan dated February 13, 2018?

4. Is the applicant entitled to payments for invoices related to pre-screening assessments in the amount of $1,749.36, submitted July 4, 2018?

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

RESULT

4The applicant sustained predominantly minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit.

5The applicant is not entitled to the disputed treatment plans, payment for the invoices, or interest.

BACKGROUND

6The applicant was the driver of a van which was struck from behind while moving slowly in heavy traffic while entering the highway. He met with police at the scene of the accident but did not request medical assistance and no ambulance was called to assist. A few days later, on December 3, 2014, he met with his family physician, Dr. M. Lamine, and was examined. Dr. Lamine noted the applicant’s complaints of neck and back pain and referred him for imaging, which was unremarkable. On the same day as his visit to Dr. Lamine, the applicant started chiropractic treatment at Back 2 Play Chiropractic, pursuant to the MIG. A disability certificate completed by Dr. Z. Yousif, chiropractor, dated December 3, 2014, lists the totality of the applicant’s injuries as whiplash disorder and sprain/strain of the thoracic and lumbar spine. However, the applicant later developed right shoulder pain which he attributes to the accident.

THE MINOR INJURY GUIDELINE

7The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

8If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

9I have reviewed the evidence and submissions and find the applicant has sustained predominantly minor injuries as defined by the Schedule. As a result, he is subject to the $3,500.00 funding limit provided by section 18. He is not entitled to the proposed physiotherapy treatment and psychological assessment because the treatment plans fall outside the MIG and would exceed the $3,500.00 funding limit.

The Applicant’s Injuries

10I find no compelling evidence that the applicant suffered an injury which is not included in the MIG.

11The clinical notes and records (“CNRs”) of Dr. M. Lamine, family physician, note the applicant suffered only soft-tissue sprain/strain injuries to neck and back. The CNRs are devoid of any symptoms or diagnosis of a psychological injury, nor is there a referral from Dr. Lamine to any psychologist or psychiatrist. According to an entry dated March 28, 2015, Dr. Lamine believed that, following examination, the applicant was malingering and didn’t want to return to work. The applicant’s last visit with Dr. Lamine occurred on April 20, 2015 where it was noted he had improved and was to follow up if required. He has not followed up with Dr. Lamine since then.

12The consultation report from Dr. M. Khodabandehloo, orthopaedic surgeon, dated March 12, 2015, notes only soft tissue injuries. The applicant was referred by Dr. Lamine to Dr. Khodabandehloo for an OHIP-funded orthopaedic assessment. Dr. Khodabandehloo assessed the applicant and found tenderness in his right bicipital tendon only. An injection of Depo-Medrol and lidocaine was administered following the assessment, but no further recommendations or referrals were made.

13The assessment report of Dr. P. Bruni, chiropractor, dated April 1, 2015 is outweighed by the insurer’s examination (“IE”) report of Dr. J. Auguste, orthopaedic surgeon, dated August 15, 2015. Dr. Bruni’s report itself includes no information on the assessor’s education, experience, or scope. I am only aware Dr. Bruni is a chiropractor because it is noted in Dr. Auguste’s IE report. In any event, Dr. Bruni only identifies tenderness in the cervical and lumbar spine and suboptimal strength in the right upper extremity – all of which are consistent with the minor injury definition. Despite these minor findings, Dr. Bruni states that the applicant requires ongoing chiropractic and massage therapy treatment beyond the MIG as a result of chronic pain. The report also recommended that the applicant participate in chronic pain, psychological, orthopaedic, social rehabilitation, and neurological assessments.

14Dr. Aguste’s IE report dated August 12, 2015 outweighs Dr. Bruni’s report because it is more robust. The report includes a review of the applicant’s medical documents and a more extensive physical examination. The physical examination was unremarkable but for some pain noted in the applicant’s shoulder on full abduction and full forward flexion. Dr. Auguste determined the applicant sustained myofascial strain/sprain injuries to the right shoulder, neck and back but found no disability which would require any further facility-based treatment.

15The applicant led no evidence suggesting a psychological injury or symptoms which would warrant investigation. As noted previously, there are no psychological injuries or symptoms documented in Dr. Lamine’s CNRs. The respondent relies on the IE report of Dr. S. MacKay, psychologist, dated July 4, 2018. Dr. MacKay’s report involved psychometric testing and the findings in it are consistent with the balance of the applicant’s medical record. Dr. MacKay found the applicant was coping reasonably well from a psychological perspective and found no indication of an accident-related psychological impairment. During the interview, the applicant noted no deficit in his social and familial life and only complained of feeling more irritated and frustrated while driving, though he continues to drive. Psychometric testing indicated some validity challenges and suggested the applicant was over-reporting psychopathology in the tests as the results were contrary to his clinical presentation during the interview.

16The applicant sustained a minor injury as a result of the accident and, as a result, is not entitled to the disputed treatment and assessment plans because they propose treatment which falls outside the MIG.

INVOICES

17I find the applicant is not entitled to payment for the invoices, pursuant to section 38(2) of the Schedule, because they were incurred prior to submission to the respondent.

18The applicant provided no reasons as to why he is entitled to payment for the invoices but, instead, noted the results of the pre-screen assessments. The respondent submits that the invoices are not payable pursuant to section 38(2) of the Schedule because the invoices were incurred prior to their submission and the respondent did not advise the applicant that it would pay the expenses without a treatment plan, which is pursuant to section 39(1). The applicant was provided an opportunity to reply to the respondent’s position but chose not to.

19I find no evidence showing the respondent agreed to pay for the pre-screen services without the submission of a treatment and assessment plan. Further, the invoiced expenses do not fall under any of the other exemptions outlined in section 38(2) – the expenses are not for ambulance or any other emergency services within five business days of the accident, they are not for drugs prescribed by a regulated health professional, nor are they for any of the various items listed in sections 15(1)(d) to (f) or 16(3)(h) to (j) of the Schedule with a cost of $250.00 or less per item.

INTEREST

20The applicant is not entitled to any interest as no payments went overdue. Interest is payable on any overdue payment of benefits pursuant to section 51 of the Schedule.

CONCLUSION

21I find on the evidence that the applicant sustained a minor injury as defined by the Schedule. As a result, he is subject to the funding limit prescribed by section 18 of the Schedule.

22The disputed treatment plans are not payable because the plans propose treatment outside the MIG.

23The disputed invoices are not payable because they were incurred before they were submitted to the respondent and are not included in the list of permittable expenses provided by section 38(2) of the Schedule.

24No interest is owed as no payments went overdue.