Released Date: 08/11/2020
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:
TLD
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Yu Jiang, Paralegal
For the Respondent:
Nabila Majidzadeh, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, T.L.D., was involved in an automobile accident on June 8, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg 34/10 (the ''Schedule''). He was denied benefits by the respondent, Aviva General Insurance Company (“Aviva”) and submitted an application to the Licence Appeal Tribunal -Automobile Accident Benefits Service (“Tribunal”).
2T.L.D. asserts that Aviva is obliged by the Schedule to pay for two treatment and assessment plans (“OCF-18”) submitted by his healthcare providers for various treatments and assessments. He also claims entitlement to an income replacement benefit (“IRB”) and various expenses.
3Aviva takes the position that T.L.D. suffered only minor injuries as defined in section 3 of the Schedule. If I find that is the case, then, by virtue of section 18 of the Schedule, the maximum amount of treatment Aviva is obliged to pay for is $3,500 (the “coverage limit”). Since Aviva has approved treatment to the coverage limit, Aviva asserts it is not liable to make any further payments. In the alternative, Aviva submits that the OCF-18s are not reasonable and necessary. Aviva also submits that T.L.D. has not established entitlement to the IRB or that the various expenses are payable.
ISSUES
4The issues in dispute were agreed to and set out as follows:
a. Did T.L.D. sustain predominantly minor injuries as defined by the Schedule and therefore is subject to treatment within the Minor Injury Guideline?
b. Is T.L.D. entitled to receive a weekly income replacement benefit in the amount of $175.00 per week for the period March 20, 2018 to date and ongoing?
c. Is the medical and rehabilitation benefit in the amount of $2,831.95 for chiropractic treatment recommended by EZ Physio in a treatment plan (OCF-18) denied on March 20, 2018, reasonable and necessary?
d. Are the expenses in the amount of $495.20 as identified in various Expense Claims Forms (OCF-6) and denied by Aviva, reasonable and necessary?
e. Is the cost of examination in the amount of $2,000.00 for a psychological assessment recommended by Perfect Choice Psychological Services and denied on August 18, 2017, reasonable and necessary?
f. Is T.L.D. entitled to interest on any overdue payment of benefits?
RESULT
5In approaching the resolution of this dispute, the first step is to determine if T.L.D. is subject to the coverage limit of $3,500. If that question is answered in the affirmative, then, given that Aviva has approved treatment up to the coverage limit, T.L.D. is not entitled to payment for further treatment. If T.L.D. is not subject to the coverage limit, then the enquiry shifts to a determination of whether the OCF-18s are reasonable and necessary.
6Having considered the evidence and submissions of the parties, I find that T.L.D. is subject to the coverage limit. The predominant nature of his injuries is minor as defined in section 3 of the Schedule.
REVIEW OF COVERAGE LIMIT PROVISIONS
Medical Benefits
7Section 18 of the Schedule establishes three coverage limit levels depending on the nature of the impairments sustained in the accident. The coverage limit in dispute in this case is found in a section 18(1): “The sum of the 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 plus the amount of any applicable harmonized sales tax payable.” The term “minor injury” is defined in section 3 of the Schedule to mean: “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.”
8Section 18(2) addresses those situations where an injured party’s ability to recover from minor injuries sustained in a motor vehicle accident is complicated by a pre-existing condition. To trigger the provisions of s. 18(2), T.L.D. must satisfy three conditions: he has a pre-existing condition; that pre-existing condition was identified by a healthcare practitioner prior to the accident; and the evidence is compelling that he cannot achieve maximal recovery because of that pre-existing condition if subject to the coverage limit.
9While section 18 limits recovery based on the nature of the injuries sustained, Aviva’s obligation to pay for medical benefits is not based on the nature of the injuries, but on the nature of any impairments sustained in the accident. This obligation is set out in section 14, which states:
a. Except as otherwise provided in this Regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:
i. Medical and rehabilitation benefits under sections 15 to 17.
Income Replacement Benefits
10The insurer’s obligation to pay IRBs, eligibility criteria and the method of calculating benefit amounts are set out in ss. 4-10 of the Schedule. An insured person is eligible to receive IRBs if, as a result of the accident, he or she suffers a substantial inability to perform the essential tasks of his or her pre-accident employment within 104 weeks after the accident, as set out in section 5(1) of the Schedule.
11The Schedule, at s. 5 and s. 6, defines the level of impairment which must be suffered by the applicant to be eligible for IRBs. This changes over time after the accident. For this case, the relevant requirements are:
a. Within 104 weeks after the accident, the insured person suffers a “substantial inability to perform the essential tasks of his or her pre-accident employment”; and
b. “After the first 104 weeks of disability, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.”
Temporary return to work
12Section 11 of the Schedule prescribes that a person receiving an IRB may return to work or start new work or self-employment without affecting his or her entitlement to resume receiving IRBs if he or she is unable to continue working as a result of the accident. This only applies to the period during the first 104 weeks of receiving the IRB.
ANALYSIS
Is T.L.D. entitled to an IRB?
13The parties have not raised any issue regarding the quantum of IRBs that may be payable to T.L.D. Their submissions focus solely on whether or not T.L.D. meets eligibility criteria for IRBs. Based on the evidence, I find that T.L.D. is not entitled to an IRB.
14T.L.D. submits that prior to the accident, he was working as a food delivery driver. T.L.D. has not been able to resume his work duties as a result of accident-related injuries. T.L.D. further submits that the essential tasks of his employment require prolonged standing and sitting for hours at a time, upper body and limb co-ordination, as well as concentration and focus.
15Aviva submits that T.L.D. saw Dr. Lai, family physician on January 26, 2018, more than 7 months post-accident, T.L.D. presented with right ankle pain. Aviva contends that there is no mention of impairment or functional limitations arising from the accident-related injury and that there is no report of T.L.D. being unable to perform his employment tasks as a result of injuries sustained in the subject accident.
16Aviva relied on the multidisciplinary assessment report1 of its assessors in support of its denial of IRBs. Dr. Jugnundan reported that T.L.D. was very pain-focused and movements were slow, with facial grimacing. Dr. Jugnundan did not find any swelling or deficits with T.L.D.’s feet. Dr. Jugnundan reported that T.L.D. sustained soft tissue injuries. Dr. Jugnundan concluded that there was no medical reason for T.L.D. not to be able to drive. Dr. Jugnundan’s opinion was that T.L.D. does not suffer a substantial inability to perform the essential tasks of his pre-accident employment as a result of the accident.
17Aviva further relies on the findings of Dr. Salerno in support of its denial of IRBs. T.L.D. reported to Dr. Salerno that he was “doing delivery work on a friendly basis, it is not considered to be work”. T.L.D. further reported that he is able to drive to school and did not articulate any driving anxiety. Dr. Salerno reported that the testing result indicated that there appears to be symptom magnification and the accuracy of T.L.D.’s report of symptoms during the clinical interview and results on the remaining psychometric test measures are called into question.
18Dr. Salerno concluded that there was insufficient evidence of a level of accident-related psychological impairment preventing T.L.D. from performing his essential employment tasks. Dr. Salerno noted that from a psychological perspective, T.L.D. is able to perform all of his pre-accident employment tasks.
19Despite T.L.D.’s claims regarding the impact of his accident-related injuries on his employment, I find the evidence does not support these claims. For example, there is no evidence of what the job description is, other than “delivery” being noted on the Employer’s Confirmation Form (“OCF-2”). T.L.D. reported that he is able to drive and in fact does drive, which is in line with the limited information of the job description in the OCF-2. The medical evidence of Dr. Lai, which T.L.D. relies on, contains no information to support that he is unable to return to work as a result of his accident-related injuries.
20Although T.L.D.’s claims that his treating physicians have spoken to his impairments, the evidence contradicts this claim. Dr. Yeh, author of the OCF-18 for chiropractic treatment indicated “not employed” under Part 8. It is also noted in the same OCF-18 that T.L.D. is a college student, there is no mention of employment. Under Part 9, there is no indication of a “return to pre-accident work activities”.
21In the medical records of treating physicians Dr. Lai and Dr. Ireland, there is no indication of any impairment or functional limitation. Specifically, with Dr. Ireland, there are prescription notes that contain no accident-related details or impairments suffered as a result of the accident. Aviva suggests that little weight be given to the records of Dr. Lai and Dr. Ireland. I agree.
22The requirement for IRB entitlement is that an insured must provide persuasive and supportive evidence that as a result of the accident, they suffered a substantial inability to perform the essential tasks of their employment. T.L.D has not provided any medical evidence that satisfies the requirement of the IRB test. On a balance of probabilities, I find that T.L.D. did not suffer a substantial inability to perform the essential tasks of his employment as a delivery driver, as a result of the accident.
Did T.L.D. suffer minor injuries as a result of the accident?
23For the reasons to follow, I find the T.L.D. suffered predominantly minor injuries as a result of the accident.
24Besides the initial post-accident visit to the hospital on June 8, 2017, the next visit for accident-related injuries is on January 26, 2018. Dr. Lai’s diagnosis from the January 2018 visit of “MSK pain” falls within the definition of a predominantly minor injury.
25The medical evidence that has been discussed which T.L.D. relies on is not persuasive. There is no evidence of a pre-existing condition that would prevent T.L.D. from reaching maximum medical recovery within the $3500 limit. There is no evidence that T.L.D suffered anything beyond minor injuries as a result of the accident. From a psychological perspective, T.L.D. has not put forth any compelling evidence of a psychological impairment that is not a sequela of his accident-related impairments. There is no evidence of a significant psychological impairment that would allow T.L.D. to receive funding outside of the $3500 limit.
26As such, I find that T.L.D. has failed to convince me that he suffered anything more than predominantly minor injuries as a result of the accident. Therefore, I do not need to consider whether the treatment plans are reasonable and necessary.
Deduction of collateral benefits
27Aviva submits that the OCF-6 (for a hospital expense) is not payable as T.L.D. has not provided information that the expense was not paid by his collateral benefits provider, University Health Insurance Plan.
28The second OCF-6 (for a doctor visit) contains no details regarding the expense and its relation to the accident. Aviva submits that the OCF-6, having been submitted over 30 months post-accident, is likely for a visit to Dr. Ireland, but it is unclear that this expense is related to the subject accident.
29Section 47 (2) of the Schedule allows an insurer to deduct payment that is reasonably available under any insurance plan or law.
30Aviva submits that, to date, T.L.D. has not provided evidence that the OCF-6s were submitted to the collateral benefits provider. Aviva contends that, as a result, it is not able to determine the amount payable.
31T.L.D. has not directed me to any evidence that the OCF-6s were submitted to his collateral benefits provider. As such, I find that Aviva is not required to pay any amount of the expense claims until T.L.D. has provided Aviva with proof of submission to the collateral benefits provider.
CONCLUSION
32T.L.D. sustained predominantly minor physical and psychological injuries that fall within the $3500 limit, which has been exhausted. Accordingly,
a. T.L.D. is not entitled to payment for the treatment plans claimed in this application;
b. T.L.D. is not entitled to payment for hospital expense claimed until proof of submission to his collateral benefits provider is given to Aviva. He is not entitled to the doctor’s visit expense claim, until proof that the visit is accident-related is provided to Aviva; and
c. His application is dismissed.
Released: August 11, 2020
Derek Grant
Adjudicator