Released Date: 07/22/2020

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:

J.R.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Kathleen Mertes, Counsel

HEARD:

Via written submissions

OVERVIEW

1J.R. was injured in an accident on October 13, 2016, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Aviva denied the benefits based on its position that he sustained predominantly minor injuries as a result of the accident that are subject to treatment within the Minor Injury Guideline (“MIG”).

2J.R. disagreed and applied to the Tribunal for resolution of the dispute. J.R. initially claimed entitlement to an income replacement benefit but withdrew his claim in his written submissions. The remaining issues as listed in the Case Conference Order remain in dispute.

ISSUES IN DISPUTE

3The following issues remain in dispute:

i. Did the applicant sustain predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?

ii. Is the applicant entitled to an attendant care benefit in the amount of $138.09 per month for the period of October 13, 2016, to date and ongoing?

iii. Is the applicant entitled to a medical benefit in the amount of $2,747.00 for physiotherapy services recommended by Health Pro Wellness in a treatment plan submitted October 30, 2017, and denied on November 7, 2017?

iv. Is the applicant entitled to the cost of examination in the amount of $2,197.20 for a psychological assessment submitted on October 16, 2017, and denied on October 27, 2017?

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

vi. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

result

4I find J.R. is unsuccessful on all of the issues in dispute.

ANALYSIS

Applicability of the MIG

5Section 3(1) defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes and clinically associated sequelae to such an injury.”

6Under s. 18(1), medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500.00 under the MIG. Section 18(2) further states that the $3,500.00 limit does not apply to an insured person if his or health practitioner determines and provides compelling medical evidence that the insured person has a pre-existing condition, documented by a health practitioner before the accident, that will prevent maximal medical recovery if they are subject to the MIG. The Tribunal has also determined that an insured may escape the MIG on the basis of a psychological impairment or evidence of chronic pain that would prevent maximal medical recovery under the MIG. In all cases, the applicant bears the onus of proving entitlement to treatment beyond the MIG.

7I find J.R. has not satisfied his burden to prove that his accident-related impairments justify removal from the MIG. I find the OCF-3 dated October 20, 2016 and completed by Dr. Salayeva, chiropractor, lists impairments that fall squarely within the definition of minor injury under the Schedule, as they are identified as: other sprain/strain of cervical spine, WAD-2 with complaint of neck pain with musculoskeletal signs, sprain/strain of thoracic spine, sprain/strain of shoulder joint, sprain/strain of other and unspecified parts of lumbar spine and pelvis, sprain/strain of sacroiliac joint, low back pain, pain in thoracic spine, acute pain, muscle strain and subluxation complex (vertebral).

8J.R. did not provide compelling evidence of a pre-existing physical condition that would prevent recovery under the MIG. In submissions, J.R. references his complaints of pain as justification for removal from the MIG, but there is limited analysis explaining how this pain causes functional impairment and there is no objective diagnosis of chronic pain from a medical practitioner. While a diagnosis is not strictly required for removal from the MIG, there must be some evidence of consistent and contemporaneous complaints of pain accompanied by functional impairment. Other than the treatment plans and some treatment notes from the provider that submitted the OCF-18s, J.R. has provided neither. While his chiropractor urged that treatment beyond the MIG was required, the reasons to support this position are not compelling and seem to be based on scarce reports of pain in the treatment notes.

9Instead, on review of the clinical notes and records of J.R.’s two family physicians, Dr. Struzik and Dr. Higgs, it seems that J.R. did not seek referrals or treatment for any of his accident-related impairments. Further, it does not appear that he even mentioned his involvement in the accident to either of his doctors at any point in the four years post-accident. As Aviva submits, there is absolutely no mention of the accident or any of J.R.’s accident-related complaints in the notes of the family physicians at any point from the date of loss on October 16, 2016 through to January 27, 2020, despite evidence that J.R. attended to his family physicians with some frequency, on a near monthly basis. J.R. is not on any pain medication or prescriptions for accident-related issues.

10Further, that J.R. failed to attend at four properly scheduled s. 44 physiatry examinations to determine whether his impairments fell within the MIG frustrated Aviva’s ability to make a complete determination on his alleged impairments. Even though his lack of attendance at the examinations led to Aviva proceeding without a s. 44 physiatry report to rebut J.R.’s claims, I find the medical evidence still does not support his removal from the MIG.

11Indeed, the thrust of J.R.’s argument for removal from the MIG seems to centre instead around his psychological impairments. J.R. underwent a psychological pre-screen interview with Dr. Aghamohseni, psychologist. The two-page pre-screen report is captured within an OCF-18 recommending a full psychological assessment and removal from the MIG. The benefit was denied by Aviva based on its determination that J.R. was subject to the MIG.

12With respect, the psychological pre-screen is not compelling evidence of a psychological impairment warranting removal from the MIG. The report references stress, vehicle anxiety and sleep disruption due to pain. There is no preliminary diagnosis or suggestion that J.R. meets DSM-V criteria. There is no specific discussion of how these psychological symptoms affect his function, just that they require removal from the MIG. Where there are no visits to his family physicians that mention these symptoms as a result of the accident, I find it difficult to accept that these symptoms require removal from the MIG, that these symptoms would prevent his recovery or that a full assessment is reasonable and necessary.

13On the basis of the pre-screen interview, Aviva scheduled a s. 44 psychological examination with Dr. Kanagaratnam, who performed testing, reviewed the medical file and conducted an interview. At the assessment, J.R. reported no issues with his sleep, weight, appetite, libido and cognition and reported good health. He self-reported no major changes to his social life, hobbies, daily activities, anxiety, or irritability post-accident. J.R. confirmed that he had no issues driving post-accident and that passenger anxiety did not have a significant influence on his work performance or daily life. Dr. Kanagaratnam concluded that from a psychological perspective, J.R.’s symptoms did not meet the threshold for a psychological diagnosis and further noted that he presented with subclinical levels of anxiety and mood symptoms unrelated to the accident. I afford significant weight to Dr. Kanagaratnam’s report and medical opinion as I find it is most in line with the bulk of the medical evidence.

14In submissions, J.R. argued that his previous anxiety attack in 2015 justifies removal from the MIG because he is more vulnerable to emotional symptoms. While I am alive to the notation from 2015, the very next notation indicates that is anxiety is under control and he has no more panic attacks. I disagree that this is the type of compelling evidence from a medical practitioner indicating that maximal medical recovery is prevented under the MIG, as required by s. 18(2). On review of the s. 44 report, J.R.’s previous anxiety issues are mentioned but it also states that he advised that he felt his anxiety was manageable. Still, Dr. Kanagaratnam notes in the report that despite evidence that J.R. had anxiety attacks, these symptoms were not debilitating at the time of the assessment and had not been exacerbated by the accident. As a result, Dr. Kanagaratnam found that any pre-existing medical condition would not prevent him from achieving maximum medical recovery if subject to the MIG.

15On the evidence before the Tribunal, I find J.R. has not met his onus to prove that his accident-related impairments, psychological symptoms or pre-existing conditions warrant removal from the MIG. I find he sustained predominantly minor injuries as a result of the accident that are treatable within the MIG.

Are the treatment and assessment plans reasonable and necessary?

16Sections 14 and 15 state that medical and benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of a motor vehicle accident. J.R. bears the onus of proving on a balance of probabilities that proposed treatment is reasonable and necessary.

17It is my understanding that the MIG limits have been exhausted. Having determined that J.R. sustained predominantly minor injuries as a result of the accident that are treatable within the MIG, an analysis of the treatment plans in dispute is not required.

18Even if he were not subject to the MIG, on review of the treatment plans, I find that neither is reasonable and necessary. There is limited evidence that J.R. requires further facility-based physiotherapy treatment for the minor physical injuries sustained. Additionally, I find that J.R. has not satisfied his burden to prove that a full psychological assessment is reasonable and necessary as a result of his accident-related impairments or pre-existing conditions.

Attendant Care Benefits

19Section 19(1)(a) of the Schedule states that attendant care benefits shall pay for all reasonable and necessary expenses that are incurred by or on behalf of the insured person as a result of the accident for services provided by an aide or attendant. Section 14(2) states that the insurer is only liable to pay for attendant care benefits if the insured’s impairment is not a minor injury.

20Here, J.R. submits that he is entitled to payment for attendant care in the amount of $138.09 per month from October 13, 2016 to date and ongoing, pursuant to the Form-1 dated October 20, 2016 submitted to Aviva on July 26, 2017 because it is reasonable for his accident-related pain. Aviva denied the claim on the basis that J.R. was in the MIG.

21Having determined that J.R.’s impairments are properly within the MIG, it follows that he is not entitled to attendant care pursuant to s. 14(2). As Aviva submits, given that the Form-1 was originally completed on October 20, 2016, but was not submitted to Aviva until over 9 months later on July 26, 2017, with no explanation for the delay, I agree that it cannot be said that there were pressing circumstances that would justify awarding attendant care payable for any period prior to its receipt. Even if he were not subject to the MIG, I find J.R. has not demonstrated that the amount of $138.09 per month claimed is reasonable and necessary for grooming his toenails, cleaning his sheets and toilet or preparing his meals, which are the activities identified in the Form-1. As Aviva submits, I agree that it is not reasonable to assert that J.R. was unable to clip his own toenails or cook but was able to work full-time installing insulation and at a convenience store. Further, J.R. has provided no evidence whatsoever that he incurred any attendant care to meet the requirements of s. 3(7)(e).

22Instead, J.R. requests that the Tribunal find the attendant care be “deemed” incurred under s. 3(8) on the basis that Aviva was unreasonable in denying the attendant care benefit. The only evidence provided by J.R. to support his position is the denial of the benefit itself and the psychological pre-screen report. Suffice to say, I do not find this to be compelling evidence to deem the minor attendant care expenses incurred or reasonable and therefore payable. Accordingly, I find that J.R. is not entitled to payment for attendant care benefits as he is subject to the MIG and has not incurred any attendant care.

Award

23J.R. also seeks payment for an award under s. 10 of O. Reg. 664 due to Aviva’s unreasonable withholding of benefits and because it maintained the position that he was subject to the MIG. Under s. 10, the Tribunal may award up to 50% of the total benefits claimed if it determines that the insurer unreasonably withheld or delayed the payment of benefits.

24I find an award is not appropriate. On the evidence, I find no indication that Aviva acted unreasonably in denying the benefits claimed by J.R. as he is properly within the MIG. Other than disagreeing with Aviva’s position, J.R. has not provided the Tribunal with sufficient evidence to substantiate an award under s. 10. In any event, having determined that no benefits are payable, it follows that the Tribunal cannot award 50% of zero. Accordingly, I decline to order an award.

CONCLUSION

25J.R. sustained predominantly minor injuries as a result of the accident that are treatable within the MIG. As he is subject to the MIG, he is not eligible for attendant care benefits. Further, as the MIG limits have been exhausted, it follows that neither of the treatment plans in dispute are reasonable and necessary. An award and interest do not apply.

Released: July 22, 2020

__________________________

Jesse A. Boyce

Adjudicator