N.J. v. Aviva General Insurance, 2020 CanLII 69627

Licence Appeal Tribunal

Citation: N.J. vs. Aviva General Insurance, 2020 ONLAT 18-011798/AABS

Released date: September 2, 2020

Tribunal File Number: 18-011798/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:

[N.J.]

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Asad Ali Moten, Adjudicator

APPEARANCES:

For the Applicant:

Virginia Essipova, Counsel

For the Respondent:

Mohamed R. Hashim, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on August 25, 2016. He sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”).

2The parties dispute the applicant’s entitlement to several claimed medical benefits. Specifically, the applicant has claimed medical benefits for: psychological assessment; chiropractic, massage and physiotherapy; and, prescription medication. The respondent denied each of these claims on the basis that the applicant had suffered only minor injuries.

3A preliminary question to the applicant’s entitlement to the above benefits is whether or not the applicant has suffered more than minor injuries. If he has, then the Tribunal must consider whether he is entitled to the claimed medical benefits. If he has not suffered more than minor injuries, then his entitlement to these benefits is moot.

4The applicant argues that (a) his injuries are not minor in that he suffers from adjustment anxiety disorder and chronic pain syndrome; and, (b) the treatment plans proposed for each of the medical benefits are reasonable and necessary to assist in his maximal recovery. The respondent maintains its position that the applicant has suffered only minor injuries.

ISSUES

5While the issues in dispute as identified by the case conference order are listed below, there is a preliminary issue in this case: do the applicant’s injuries justify his removal from the Minor Injury Guideline (“MIG”)?

6If I find the answer to the preliminary issue is ‘yes’, the issues to be decided are:

i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,000.00 for psychological treatment recommended in a treatment plan submitted on December 20, 2016?

ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,557.12 for chiropractic treatment recommended in a treatment plan submitted March 27, 2017?

iii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $49.15 for prescription medication in a treatment plan submitted January 18, 2018?

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

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

RESULT

7I find that the applicant has not satisfied his onus to prove that his injuries warrant his removal from the MIG. The applicant’s evidence does not, on a balance of probabilities, prove that he has suffered more than a minor knee injury or that he has suffered a psychological injury. The applicant has already exhausted his benefits limit under the MIG. Consequently, it is unnecessary for me to consider his entitlement to the claimed benefits.

BACKGROUND

8The applicant was involved in a motor vehicle accident on August 25, 2016. He was in the passenger side of his brother’s car traveling northbound on [a street] in Vaughn. The car the applicant was in was struck in a t-bone fashion while turning right at an intersection. The car was struck on the driver’s side, the airbags did not deploy, and the applicant did not attend the hospital.

9He was 23 years old at the time of the accident. He reports going back to his employment shortly after the accident, but there is no indication as to how soon after or the nature of his work.

10After the accident the applicant filed an application for accident benefits. On December 7, 2016, the applicant submitted an OCF-18 treatment plan for a psychological assessment, as completed by psychologist Dr. Tenenbaum. This treatment plan requested $2,000 for a psychological assessment. On January 6, 2017 the respondent denied the claim on the basis that the applicant’s injuries were minor.

11On March 27, 2017, the applicant submitted an OCF-18 treatment plan as completed by a chiropractor, Dr. De Luca. This treatment plan requested $4,557.12 for chiropractic, massage and physiotherapy treatments. On April 11, 2017, the respondent denied this claim, again, on the basis that the applicant has not suffered an injury that would take him out of the MIG.

12On January 18, 2018, the applicant submitted an OCF-6 for a medication prescription in the amount of $49.15. The respondent denied the claim on the basis that the MIG applied.

ANALYSIS

i. Has the applicant suffered injuries that take him out of the MIG?

13The MIG establishes a framework for the treatment of minor injuries. Section 3(1) of the Schedule defines a minor injury as a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation. A minor injury also includes any clinically associated sequelae to the injuries noted above. An applicant who falls within the MIG is eligible for up to $3,500 in medical and rehabilitation benefits.

14There are at least two ways that an applicant can be taken out of the MIG. First, if the applicant suffers an injury in the accident that goes beyond the definition of a minor injury. Commonly, the Tribunal hears disputes about whether an applicant’s chronic pain or psychological conditions suffered as a result of the accident are sufficient to remove an applicant from the MIG. Second, section 18(2) of the Schedule provides that an applicant can fall outside of the MIG if his or her health practitioner determines and provides compelling evidence that the applicant has a pre-existing medical condition, preventing maximal recovery.

15For this Tribunal to find that an applicant is removed from the MIG by virtue of psychological injury, the applicant must show an actual psychological impairment.¹ Some case law has required that the impairment be severe or extreme.² With respect to chronic pain, this Tribunal has held that identifying chronic pain, without a diagnosis of chronic pain syndrome or an indication that chronic pain is the predominant injury, is not sufficient to take an applicant out of the MIG.³ An explicit diagnosis may not be necessary in the face of adequate evidence with respect to how chronic pain manifests and affects an applicant’s day-to-day life.

16In this case, the applicant argues that he has suffered an injury to his right knee and psychological conditions as a result of the accident. The applicant argues that these injuries are not predominantly minor and thus he should be taken out of the MIG.

17I disagree. I find that the applicant has not discharged his onus to demonstrate that the right knee injury he suffered in the accident is more than a minor injury, or that he has suffered any psychological injury. He is not, therefore, eligible for benefits beyond the MIG. I make this finding for the following reasons.

18First, all of the examinations done by the applicant’s family physician and orthopaedic surgeon, beginning in September 2016, indicate normal range of motion and are negative for tenderness or swelling. There is simply no evidence from the applicant’s own records to support a claim that, beyond self-reported pain, the applicant has suffered more than a minor injury.

19Second, the applicant underwent a number of diagnostic scans which support this conclusion. Between October 2016 and December 2018, the applicant underwent two x-rays, an ultrasound, an MRI, and a CT scan. One ultrasound indicated a small joint effusion which is likely associated sequelae to a knee sprain or strain. The MRI indicated bony edema in the patella, indicating possible fracture lines. The report stated that “this may represent osteochondrial injury of the patella.” I note that the report speaks in possibilities, and the subsequent CT scan ruled out any possibility of a fracture.

20In sum, while I do not doubt that the applicant is experiencing some pain, none of the imaging indicates that the applicant suffered more than a minor injury in the accident. There is no diagnosis of chronic pain syndrome or that chronic pain is the predominant injury.

21Third, while the applicant claims to have suffered a psychological injury, there are no submissions or evidence with respect to the nature, extent, and effect of the injury besides the OCF-18 at issue. Further, the evidence from the respondent indicates that the applicant reported that his mood improved independently since the accident, and that the applicant is disinterested in psychological intervention.

22I cannot conclude, based on the body of evidence, that the applicant has suffered a psychological injury, let alone one that is severe or extreme.

ii. The applicant’s eligibility for the claimed benefits

23Given my finding on the issue of whether the applicant falls outside of the MIG it is unnecessary for me to consider his entitlement to the claimed benefits.

CONCLUSION

24For the reasons above, I find that the applicant has not satisfied his onus to prove that he has suffered injuries that are predominantly more than minor to warrant taking him out of the MIG.

25The application is dismissed.

Footnotes

1. 117-004796 and 17-004801 v. Certas Direct Insurance Company, 2018 CanLII 97830, at paras. 24-27.
2. 217-000640 v. TD Insurance Meloche Monex, 2018 CanLII 13142.
3. 317-000640 v. TD Insurance Meloche Monex, 2018 CanLII 13142.