18-012361/AABS

Released: 07/29/2020

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:

S.B.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Jordan Dahan

For the Respondent:

Sophia Chaudry

HEARD:

Via written submissions

OVERVIEW

1S.B. was injured in an accident on April 14, 2015, and sought physiotherapy treatment from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). Aviva denied the treatment plans based on its determination that she sustained predominantly minor injuries as a result of the accident that were treatable within the Minor Injury Guideline (“MIG”). S.B. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Are the applicant’s injuries predominantly minor injuries as defined in the Schedule and subject to a $3,500 treatment limit within the MIG?

ii. Is the applicant entitled to receive medical benefits in the amount of $2,893.40 for medical services recommended by HealthMax Physiotherapy Clinic in a treatment plan submitted March 30, 2016, and denied by the respondent on April 1, 2016?

iii. Is the applicant entitled to receive medical benefits in the amount of $2,169.33 for physiotherapy services recommended by HealthMax Physiotherapy Clinic in a treatment plan submitted February 21, 2017, and denied by the respondent on February 24, 2017?

iv. Is the applicant entitled to interest on any overdue payment of benefits? Is the applicant entitled to an award under RRO 664 because the respondent unreasonably withheld or delayed payment of benefits?

result

3I find S.B. sustained predominantly minor injuries as a result of the accident and has not satisfied her onus to prove that her pre-existing conditions warrant treatment beyond the MIG. Accordingly, she is not entitled to payment for either treatment plan in dispute as they are not reasonable and necessary and the MIG limits have been exhausted. An award and interest do not apply.

ANALYSIS

Applicability of the MIG

4The Schedule 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” and limits treatment for minor injuries to $3,500 under the MIG. Section 18(2) states that the $3,500 limit does not apply to an insured person if they provide compelling medical evidence that a pre-existing condition, documented by a health practitioner before the accident, 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.

5I find S.B. has not provided compelling medical evidence that her pre-existing condition prevents maximal medical recovery from the accident if she is kept within the MIG. In support of her position, S.B. directs the Tribunal to the pre-accident notes of her family physician, Dr. Abdulhusein, from 2014 and 2015, that detail pain and range of motion issues she was experiencing as a result of a previous accident that occurred on August 13, 2014. The initial notes reveal complaints of a tender upper back, lower back, neck and right shoulder with decreased range of motion in her neck and lower back to a maximum of 60% of normal. While these complaints continue sporadically until the April 2015 accident, it is clear on the evidence and the OCF-3 that her physical impairments fall squarely within the definition of minor injuries under the Schedule.

6Post-accident, the notes state that the pain medication she was taking for the first accident no longer provides the same relief, which S.B. submits is clear evidence that her pre-existing impairments prevent maximal recovery. Following the accident, the five notes in evidence indicate similar pain complaints. S.B. submits that she suffers from chronic pain based on the orthopaedic report of Dr. Langer from January 2015—completed three months prior to the current accident—who opined that she sustained injuries that warrant removal from the MIG.

7It is well-established that the presence of a pre-existing condition alone is not sufficient to remove an applicant from the MIG. Rather, S.B. must adduce evidence to demonstrate that pre-existing conditions prevent her from achieving maximal recovery within the MIG. To this end, S.B. submits that Dr. Abdulhusein’s records, Dr. Langer’s diagnosis of chronic pain in January 2015 and the fact that the pain medication was no longer effective are clear indications that S.B. should be removed from the MIG. While I find there are reports of pain and I am alive to Dr. Langer’s report, I find S.B. has not demonstrated how her pre-existing pain prevents her recovery under the MIG from the impairments she sustained in the current accident.

8Indeed, none of the pre-accident notes of Dr. Abdulhusein indicate that S.B.’s pain is causing functional impairment or require extended treatment. There are only five notes from Dr. Abdulhusein in the two years post-accident, none of which diagnose chronic pain, recommend treatment or even make a referral for treatment. None of the notes indicate that her recovery from the accident is prevented by her pain and all of the assessment codes reveal sprain and strain type injuries. The more recent notes indicate S.B. has lingering pain as a result of elective cosmetic surgeries she allegedly underwent in the Dominican Republic, not because of any accident. In a similar vein, S.B. did not provide the Tribunal or Aviva with any updated records since February 2017 that could speak to her function or whether she even has lingering pain.

9Meanwhile, Dr. Langer’s assessment and diagnosis of chronic pain are from three months prior to the current accident in January 2015. While Dr. Langer believed S.B. required treatment beyond the MIG then, there was no addendum or follow-up opinion to comment on how S.B.’s impairments from the current accident were affected or exacerbated in the five years since. On review, it appears that all of the medical evidence before the Tribunal was procured as a result of the 2014 accident and re-used for the current accident. Notably, it does not appear that S.B. received treatment beyond the MIG for that accident either. Where S.B. relies on a five-year-old report, where her own family physician does not indicate that her current or pre-existing accident-related complaints prevent maximal recovery, where there is no discussion of her current pain or function, where there are no recent medical records to corroborate any of her claims and where there is no discussion explaining how her alleged pre-existing conditions prevent maximal recovery, I cannot find that the evidence offered meets the compelling standard required under s. 18(2) to justify treatment beyond the MIG.

10In any event, Aviva relies on two s. 44 assessment reports that found S.B.’s accident-related physical impairments to be predominantly minor injuries. On review, I prefer these reports to the evidence submitted by S.B., as they represent the most recent medical opinions in evidence and the only medical opinions procured following the current accident giving rise to this dispute. In the physiatry report, Dr. Heitzner found that S.B. had a mild decreased range of motion of her cervical spine and thoracic spine with no objective neurological impairments. Dr. Heitzner determined that, as a result of the accident, S.B. sustained temporary aggravation of pre-existing conditions involving her neck, head and soft tissue injury to her cervical spine. Notably, Dr. Heitzner refuted the allegation that the pre-existing conditions prevented recovery from her accident-related injuries if subject to the MIG limits. Further, he concluded that further treatment was not reasonable and necessary as it was unlikely to change her overall level of function or provide a reduction in symptoms. Similarly, in a December 2015 report, Dr. Abuzgaya, orthopaedic specialist, found that S.B.’s accident-related diagnosis is consistent with cervical sprain and lumbar sprain, that she had functional range of motion of her cervical spine and lumbar spine and there was no objective evidence of any residual musculoskeletal impairment attributable to the injuries sustained in the accident. As these opinions were seemingly not rebutted over the last four years, I see no reason to interfere.

11S.B. also submits that she suffered from pre-existing psychological issues that warrant treatment beyond the MIG. She relies on the psychological report from Dr. Bodnar from April 2015 that diagnosed her with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (Driving). On review of the medical documentation, it is unclear where the referral for this report came from as there is no reference to psychological complaints in Dr. Abdulhusein’s records that arise from the current accident. As Aviva submits, none of the records which follow the current accident make any mention of psychological or psychiatric complaints or diagnoses related to the accident. The OCF-3 that indicates “psychological and behavioural factors associated with disorders or diseases classified elsewhere” was completed by a chiropractor and not by a psychologist. Dr. Abdulhusein’s post-accident notes state that S.B. was less stressed, less distracted and had better focus. S.B. allegedly continues to drive a vehicle. There is no evidence that psychological symptoms are affecting her function or her recovery.

12Notably, S.B. was not removed from the MIG for psychological impairments as a result of the previous accident nor does it appear as though she sought treatment for same, as her previous application was withdrawn. Dr. Bodnar’s report was prepared prior to the current accident and no addendum or review to comment on any current impairments or symptoms was completed in the five years since. Even if S.B. is given the benefit of the doubt, her submissions do not explain how her psychological diagnosis prevents maximal medical recovery as there is no analysis of her function, no discussion of any treatment and none of the current treatment plans in dispute pertain to psychological treatment. I find that S.B. has not met her onus to prove that her pre-existing psychological diagnosis justifies removal from the MIG for her current accident-related impairments.

13For these reasons, I find S.B. has not demonstrated that her pre-existing conditions justify removal from the MIG. On the medical evidence, I see no reason to interfere with Aviva’s determination that she sustained predominantly minor injuries as a result of the accident that are treatable within the MIG.

Are the treatment plans reasonable and necessary?

14It is my understanding that the MIG limits have been exhausted. Having determined that S.B.’s accident-related impairments are treatable within the MIG, an analysis under s. 15 of whether the two treatment plans for physiotherapy are reasonable and necessary is not required.

15Putting this aside, I find that S.B. would have been statute-barred from proceeding with her claim for the first physiotherapy treatment plan dated March 30, 2016, as she failed to commence her appeal within two years of Aviva’s valid denial. Section 56 states that an application shall be commenced within two years after the insurer’s refusal to pay the amount claimed. By all accounts, S.B.’s application was filed almost one year after the two-year limitation period expired and nearly four years following the accident, without a reasonable explanation to speak to a bona fide intention to appeal. Having determined that her impairments are treatable within the MIG, I also find limited merit to her appeal and would not exercise the Tribunal’s discretion under s. 7 of the Licence Appeal Tribunal Act to extend the limitation period.

16With regards to the second treatment plan for physiotherapy dated February 21, 2017, I find limited evidence to interfere with the opinions of Dr. Heitzner and Dr. Abuzgaya, who both determined that further treatment was not reasonable and necessary for S.B.’s accident-related impairments.

Award under s. 10

17S.B. also claims an award under s. 10 of O. Reg. 664 due to Aviva’s unreasonable position that she remained in the MIG and that the treatment was not reasonable and necessary. Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits and interest to which an insured person was entitled under the Schedule if it determines that an insurer unreasonable withheld or delayed the payments.

18I find an award is not appropriate. The evidence offered by S.B. of her pre-existing impairments was not compelling. Other than disagreeing with Aviva’s position on the applicability of the MIG, S.B. has not provided the Tribunal with sufficient evidence to substantiate an award under s. 10. Further, having determined that Aviva’s position regarding the MIG is reasonable based on the evidence and that no benefits are overdue, it follows that the Tribunal cannot award up to 50% of zero. Accordingly, I decline to order an award.

CONCLUSION

19S.B. has not demonstrated that her impairments warrant removal from the MIG. Accordingly, she is not entitled to payment for either treatment plan in dispute as they are not reasonable and necessary. An award and interest do not apply.