Released Date: 07/06/2020
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:
T. S.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION [AND ORDER]
ADJUDICATOR: Poeme Manigat
APPEARANCES:
For the Applicant: Linda To, Paralegal
For the Respondent: Jamie Min, Counsel
Written Hearing on: August 26, 2019
OVERVIEW
1The applicant was injured in an automobile accident on January 11, 2017 (“the accident”) and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”) when his claims for benefits were denied by the respondent, Aviva General Insurance Company (“Aviva”).
2The respondent denied the applicant’s claims because it determined that the applicant’s injuries fit the definition of a “minor injury” as prescribed by s. 3(1) of the Schedule, therefore falling within the Minor Injury Guideline2 (“MIG”). The applicant claims the opposite to be true.
3If the applicant’s position is correct, then I must address the issue of whether the medical treatments claimed are reasonable and necessary.
4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits, as prescribed by s.18(1) of the Schedule, and in turn, a determination of whether the claimed medical benefits are reasonable and necessary will not be required. To date the applicant has received $3,500.00 in medical and rehabilitation benefits.
ISSUES
5Do the applicant’s injuries fall within the Minor Injury Guideline? Is his entitlement to benefits limited by the MIG?
6If the applicant’s injuries are not within the MIG, then I must determine the following:
Is the applicant entitled to receive a medical benefit in the amount of $3,129.03 for physical treatment recommended by Spine Solution in a treatment plan dated April 19, 2018, denied by the respondent on April 24, 2018?
Is the applicant entitled to receive a medical benefit in the amount of $3,175.84 for physical treatment recommended by Absolute Health Care in a treatment plan dated August 8, 2017, denied by the respondent on August 10, 2017?
Is the applicant entitled to receive a medical benefit in the amount of $262.55 for chiropractic treatment and physiotherapy recommended by Absolute Health Care in a treatment plan dated June 8, 2017, denied by the respondent on June 8, 2017?
Is the applicant entitled to receive a medical benefit in the amount of $2,750.72 for chiropractic treatment and physiotherapy recommended by Absolute Health Care in a treatment plan dated July 4, 2017, denied by the respondent on July 13, 2017?
Is the applicant entitled to receive a medical benefit in the amount of $2,200.00 for chiropractic treatment and massage therapy, recommended by Spine Care Solution in a treatment plan dated February 8, 2018, denied by the respondent on February 12, 2018?
Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment, recommended by Dr. Igor Wilderman in a treatment plan dated May 23, 2018, denied by the respondent on June 4, 2018?
Is the applicant entitled to payments for the cost of examinations in the amount of $1,995.30 for a psychological assessment, recommended by Dr. Kenneth Keeling in a treatment plan submitted April 25, 2018, denied by the respondent on May 2, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
7I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to consider the necessity or reasonableness of the treatment plans or the issue of interest.
ANALYSIS
The Minor Injury Guideline
8Section 3(1) of the Schedule defines a ‘minor injury’ 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 MIG defines in detail what these terms for minor injuries mean.
9Section 18(1) of the Schedule prescribes a $3,500.00 limit on medical and rehabilitation benefits payable for any one accident.
10The applicant argues that his injuries fall outside of the MIG because his injuries exacerbated pre-existing injuries that he sustained in a motor vehicle accident on September 11, 2016 and because he suffers from chronic pain. The onus is on the applicant to show that his injuries fall outside of the MIG.3
Did the applicant sustain predominantly minor physical injuries?
Accident-related injuries and pre-existing condition
11I find that the evidence establishes that the applicant’s accident-related physical injuries are predominantly minor.
12The applicant was involved in a motor vehicle accident on January 11, 2017 where a third-party vehicle driving out of a parking lot struck the front passenger side of the applicant’s vehicle. As a result of this accident, the applicant submitted that he suffered injuries to his neck, low back, and right knee. The applicant visited his family physician on January 17, 2017 who diagnosed him with sprain/strain of his right knee. The applicant was also involved in a previous motor vehicle accident on September 11, 2016. The applicant submitted that the January 11, 2017 accident exacerbated his injuries sustained in the September 11, 2016 accident and reported suffering from chronic pain.
13The applicant submitted that his pre-existing injuries resulting from the September 11, 2016 accident, contributed to taking him out of the MIG following his more recent accident (January 11, 2017). The presence of the applicant’s pre-existing condition is not disputed by the respondent. However, the respondent argues that the pre-existing condition did not impact the applicant in a manner that would take him out of the MIG.
14Based on the evidence before me, I am not persuaded that the existence of his pre-existing condition, on its own, does not take the applicant out of the MIG. The fact that the applicant has a pre-existing condition does not mean that the applicant’s accident-related injuries cannot be treated within the MIG. To move beyond the MIG, the applicant must demonstrate that his pre-existing medical condition – documented by a health practitioner before the subject accident – will prevent him from achieving maximal recovery under the MIG’s limit if he is limited to the goods and services authorized under the MIG.
15I am satisfied that the applicant has established that he has pre-existing injuries from a prior motor vehicle accident. However, I have not been presented with persuasive evidence supporting the proposition that the pre-existing condition will prevent the applicant from being sufficiently treated within the MIG. Minimal detail was provided by the applicant on the topic of his pre-existing injuries. The applicant was diagnosed with lumbar strain and muscular strain as a result of the September 11, 2016 motor vehicle accident. On September 13, 2016 the applicant reported suffering from neck pain, lower back pain and shoulder pain.
16No medical expert addressed the impact of the pre-existing injuries on the applicant’s injuries from the January 11, 2017 accident. The treating physiotherapist and family physician simply state that the pre-existing injuries will delay the applicant’s recovery. There is no comprehensive medical evidence before me confirming that the applicant’s injuries cannot be treated under the MIG specifically because of the applicant’s pre-existing condition. It is not enough to have a pre-existing condition; medical evidence must support the suggestion that the pre-existing condition is a barrier to the applicant achieving maximal medical recovery within the MIG.
Chronic Pain
17The applicant also submitted that he should be removed from the MIG, because he suffers from chronic pain as a result of the accident. For the reasons stated below, I do not find that the applicant has proven, on a balance of probabilities, that he suffers from chronic pain, which can justify taking him out of the MIG.
18It is noteworthy to state that the applicant attended his family physician thirteen (13) times from January 18, 2017 to March 7, 2019 and only twice did he complain about accident-related injuries. This is contrary to the applicant’s claim that he suffered from constant neck, right knee and back pain resulting from the January 11, 2017 accident.
19The family physician reported that the applicant suffers from chronic pain in his shoulder; however, he does not provide further details about this finding. As well, the family physician did not refer the applicant to a chronic pain specialist in order to seek an expert opinion on the issue. The doctor maintained that the applicant’s injuries were sprains, strains and musculoskeletal pain.4 The treating physiotherapist, the family physician and the IE Assessors reported the applicant’s injuries as sprains and strains.
20The Insurer Examination (“IE”) Assessors found that the applicant’s injuries can be treated within the MIG; this is substantiated by the physical assessment that they completed, as well as based on a review of the medical evidence from the applicant’s treating physiotherapists and family physician. Furthermore, the IE Assessors found that the injuries directly related to the subject motor vehicle accident are sprains and strains of the cervical spine. The IE Assessor who completed the In-Home Assessment dated September 1, 2017 noted that the applicant demonstrated sufficient mobility, range of motion and strength to perform various daily tasks including self-care, housekeeping and leisure activities.5 This finding is consistent with the family physician’s records of March 20, 2018, which state that the applicant has no difficulty with daily activities.6
21In completing the OCF-3, the physiotherapist answered in the positive that the applicant was completely unable to carry on a normal life and did not provide an explanation supporting his response.7 This opinion is refuted by the fact that the applicant reported to the IE Assessors and his family doctor that he continues to engage in most of the activities that he participated in pre-accident – such as attending his temple, completing household chores and cooking. I therefore find the IE Assessors’ reports conclusive. Their findings are consistent with the clinical notes and records of the family physician.
22The applicant may be experiencing pain due to the motor vehicle accident; however, I find that his pain is caused by clinically associated sequelae resulting from the accident. There is no evidence before me to confirm that the applicant’s pain is aggravated by his pre-existing condition, and certainly not to a point where it would prevent him from achieving maximum medical recovery within the MIG.
23The applicant’s claim that he is suffering from chronic pain is unsupported by the medical evidence before me. The applicant submits that he complained of neck, lower back and right knee pain while seeking treatment from Absolute Health Centre from February 27, 2017 to January 15, 2018. However, the applicant rarely complained of pain related to the motor vehicle accident when visiting his family physician during the same time period. The fact that the applicant frequently reported his neck, lower back and right knee pain to his physiotherapists and not as often to his family physician, raises doubt regarding the consistency and severity of his accident-related pain.
24Based on my review of the evidence before me, I find that the applicant failed to satisfy his onus of showing that his injuries cannot be treated within the MIG. The MIG limit have already been exhausted by the applicant.
CONCLUSION
25For the reasons outlined above, I find that:
i. The applicant predominantly sustained minor injuries that fall within the MIG. Accordingly, he is not entitled to the treatment plans claimed in this application.
ii. There is no entitlement to overdue interest or an award under O. Reg. 664.
iii. The application is dismissed.
Released: July 6, 2020
___________________________
Poeme Manigat
Adjudicator
Footnotes
- O. Reg. 34/10.
- Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
- Scarlett v. Belair, 2015 ONSC 3635, para 24.
- Clinical notes and records of Dr. Selvanathan, Family Physician.
- Physiatry IE Assessment Report dated September 1, 2017 by Dr. Oshidari.
- Supra note 4.
- OCF-3 Disability Certificate dated February 28, 2017 by Farzad Majidi.```