Released: September 15, 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:
Charlene Smith
Appellant
And
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Avvy Go
Appearances:
For the Appellant: Siona V. Sullivan, Counsel
For the Respondent: Leanne W. Zabudsky, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant was injured in a motor vehicle accident on October 15, 2018 when her vehicle was rear-ended on the Queen Elizabeth Way. The applicant was, at the time of the accident, and still is, self-employed as a sign language interpreter. She works at various colleges and universities in Ontario, signing in front of students during lectures.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The respondent paid for some medical benefits but declined to fund certain treatment. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the “Tribunal”).
ISSUES IN DISPUTE
3According to the Case Conference Report following a case conference held on March 3, 2020, the issues in dispute are as follows:
a) Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to the $3,500 limit for treatment in the Minor Injury Guideline (“MIG”)?
b) Is the applicant entitled to receive a medical benefit in the amount of $232.00 for chiropractic services, recommended by Dr. DeFazio-Scott and denied on February 8, 2019?
c) Is the applicant entitled to receive a medical benefit in the amount of $1,397.00 for physiotherapy services, recommended by Kai Rasmussen and denied on June 13, 2019?
d) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4For the reasons set out below, I find that the applicant’s injuries fall within the MIG. She is therefore not entitled to the benefit claimed and no interest is payable.
ANALYSIS
Issue 1: Do the Applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?
Definition of MIG and burden of proof
5The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain”, “sprain,” “subluxation,” and “whiplash associated disorder” are all defined in s. 3, and collectively are referred to as “soft tissue injuries” in this decision. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500. The definition of MIG does not include any psychological or psycho-emotional impairment.
6The applicant has the burden of proving that her injuries fall outside of the MIG and are not subject to the $3,500 treatment limit in s. 18 of the Schedule.
7Section 18(2) of the Schedule allows an applicant to receive treatment outside of the MIG if she has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent her from achieving maximum recovery from the minor injury.
8Specifically, s. 4 of the MIG states that:
An insured person’s impairment does not come within this Guideline if the insured person’s impairment is predominantly a minor injury but, based on compelling evidence provided by his or her health practitioner, the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if he or she is subject to the $3,500 limit…
9In this case, the applicant has already exhausted the $3,500 limit for treatment under the MIG. The applicant claims that she should be removed from the MIG because her health practitioners have provided compelling medical evidence of a pre-existing medical condition in the applicant’s cervical spine and left shoulder.
10Based on the evidence before me, I find that the applicant’s injuries fall within the MIG.
Evidence Regarding Applicant’s Pre-existing Condition
11The applicant submitted that she began experiencing pain in the neck and left shoulder, as well as numbness, pins, and needles in the arms in approximately 2014. Her family physician requisitioned an x-ray. The September 29, 2014 x-ray results found that there was significant narrowing of C4-5, C5-6 and C6-8 disc spaces in the applicant’s cervical spine with marginal spurring, plus mild narrowing of the C2-3 and C5-6 foramina on the left side and mild narrowing of the C-45, C4-5, C5-6 and C6-7 foramina on the left side, which suggested degenerative changes in the applicant’s cervical spine.:
12The applicant decided to seek chiropractic treatment. She consulted with Dr. DeFazio-Scott on October 8, 2014 and self-reported pain in her neck, numbness in her arm and pins and needles. The applicant has been seeing Dr. DeFazio-Scott since, but the frequency of her visits vary from time to time.
13The applicant underwent another x-ray in November 2017, which findings confirmed that there were degenerative changes in the applicant’s cervical spine including moderate narrowing of the C5-6 disc space with posterior spurring, mild narrowing of the left C-56 foramen and mild narrowing of the right C4-5 and C6-7 foramina. There was also mild degenerative change in the left shoulder involving the AC joint and the glenohumeral joint.
14Along with the application, the applicant submitted the Appointment List from Dr. DeFazio-Scott’s office which sets out all the appointments that the applicant has made with the chiropractor between October 2014 and August 2019. In addition, Dr. DeFazio-Scott noted in her treatment plan that, prior to the accident, the applicant had mild degenerative changes in the spine. Dr. DeFazio-Scott also wrote a report dated June 13, 2019 in support of the applicant’s removal from the MIG, in which the doctor noted that, prior to the accident, the applicant suffered from pain related to the degenerative disc disease in her cervical spine for which she was receiving “maintenance” chiropractic treatment. Dr. DeFazio-Scott further opined that, at the time of the accident, the applicant’s degenerative conditions in the spine and shoulder had not recovered.
15Based on all the evidence before me, I find that, at the time of the accident, the applicant did have a pre-existing medical condition, namely degenerative changes in her cervical spine and left shoulder.
Does the applicant’s pre-existing condition impede maximal recovery if she is subject to the MIG?
16As s. 18(2) of the Schedule makes clear, and as confirmed by caselaw,1 it is not enough for the insured person to provide evidence of a pre-existing medical condition; the applicant must also demonstrate that the pre-existing condition will prevent her from achieving maximal recovery from her injury if subject to the monetary limit of $3,500.
17For the reasons set out below, I find the applicant has failed to discharge her burden of proof in this regard.
18While the applicant has provided sufficient evidence to show that she has a pre-existing condition, the applicant has provided little evidence that would assist me in understanding how her pre-existing medical condition will prevent her from achieving maximum recovery from the minor injury.
19For instance, instead of submitting clinical notes from Dr. DeFazio-Scott’s clinic, the applicant has only submitted the Appointment List. The list is no more than a list of the appointments that the applicant has ever made with the doctor, and whether the applicant did attend at the appointment. The Appointment List shows that, for instance, there was a gap in appointments between November 2014 and April 2015, and another gap between May 2015 and August 2017. Between March 1, 2018 until October 5, 2018, the applicant also did not visit the clinic. The visits seem to have been continuous between October 2018 until January 9, 2019. But the other two appointments in January were noted either as “confirmed” or “postponed”, as opposed to “done”. Similarly, there was only one appointment that was done on February 7, 2019, which was the last appointment made by the applicant with the chiropractor up to August 8, 2019.
20Without the clinical notes, I am not in a position to assess, for instance, the applicant’s complaints at the time of her visits with Dr. De-Fazio-Scott, and/or how her recovery from the accident is impeded by her pre-existing conditions. I am also not in a position to know if the applicant stopped seeing Dr. DeFazio-Scott in February 2019 because her condition was improving or for other reasons.
21Similarly, as the respondent has rightly pointed out, the applicant has not produced any clinical records of her family physician for the period prior to the accident – or after, for that matter. The only clinical note produced by her family physician was dated November 21, 2018, where the applicant mentioned to her family physician that she was involved in a motor vehicle accident on October 15 and saw her chiropractor on October 16 for back and neck treatment. During that visit, the applicant also complained of vertigo, which led to a requisition of an MRI on November 21, 2018. The MRI result was not included in the applicant’s document brief.
22The respondent cited G.K. v. Wawanesa2 to argue that complaints of pain in the family doctor’s clinical records were not sufficient to establish a removal from the MIG; a medical opinion specifically addressing the issue was required. In this case, the applicant provided limited clinical records from both her family physician and her treating chiropractor. Appointment records, in my view, in and of themselves, are not compelling evidence to remove an insured person from the MIG.
23The most substantive piece of evidence provided by the applicant is the June 13, 2019 letter from Dr. DeFazio-Scott. However, even that letter does not address the issue of how the applicant’s pre-existing condition will impede her achieving maximal recovery. In that letter, Dr. DeFazio-Scott wrote that the applicant noted relief after therapy and described the prognosis as “fair”. The doctor went on to state that “the prolonged endurance demands of her sign language translation job with her hands consistently held at or above shoulder level and long drives to various universities continue to aggravate her condition and cause relapse in her recovery”. As such, the doctor’s opinion would seem to suggest that it is the applicant’s ongoing job demands, and not her pre-existing conditions, that are preventing her from achieving maximal recovery.
24I also agree with the respondent that the applicant has misstated Dr. DeFazio-Scott’s opinion by suggesting Dr. DeFazio-Scott had opined “at the time of the accident, the applicant’s degenerative conditions in the spine and shoulder had not recovered”. No such statement was made in the doctor’s report. Instead, Dr. DeFazio-Scott’s report stated the 2017 x-ray confirmed degenerative changes and made no comment as to the applicant’s state of recovery and how it may have been affected by the degenerative changes.
25Indeed, the lack of any reference to how the applicant’s pre-existing conditions may affect her recovery is a key missing piece in Dr. DeFazio-Scott’s report. Instead, the chiropractor opined “due to the fact [the applicant] has not recovered to pre-accident status at this time places her beyond the minor injury destination.” The respondent is correct in pointing out that is not the test for removal from the MIG.
26The respondent arranged for an Insurer’s Examination (IE) of the applicant with Dr. Kopyto, who practices occupational medicine. Dr. Kopyto was asked to assess the applicant to provide an opinion relating to the applicability of MIG, as well as the medical and rehabilitation benefits.
27Dr. Kopyto examined the applicant on September 3, 2019. In his report, Dr. Kopyto found, among other things: “Examination of the cervical region revealed no abnormalities on visual inspection. There was some tenderness reported at the occipital area at the right side, and over the right side of her neck.” Ranges of motion were measured and noted to be normal with respect to certain extension and flexion. Dr. Kopyto also noted “both shoulders appeared normal and demonstrated a full range of motion” with respect to certain adduction, flexion, external and internal rotations. Examinations of the applicant’s grip strength, hands and wrists were also normal, so was the upper and lower back regions, hips, and knees.
28Dr. Kopyto also noted in his report that the applicant’s main complaint is her vertigo, which, along with neck pain, affects her sleep on some nights. The applicant reports that, other than hiring someone to do her gardening, there is no change in terms of housekeeping and home maintenance as a result of the accident. The applicant continues to drive, reportedly extensively for work purposes. She also remains independent in terms of self-care.
29Based on his examination, Dr. Kopyto concluded that, from a musculoskeletal perspective, there was no ongoing impairment identified. His diagnosis as related to the accident are “cervical strain and post-traumatic headaches”, and that the injuries are “strain type injuries that meet the definition of a minor injury”. Finally, on the issue of pre-existing medical condition, Dr. Kopyto opined as follows:
Although there is documented evidence of pre-accident degenerative conditions affecting her spine and left shoulder, there is no compelling evidence such conditions would prevent the insured from achieving maximal medical recovery from the Minor Injury if subject to the Guideline limits, or the Minor Injury cap of $3500.00.
30Thus, on the one hand, there is a lack of evidence from the applicant’s treating physicians that would explain how the applicant’s pre-existing condition regarding her cervical spine and left shoulder prevents her from achieving maximal medical recovery, on the other, there is an IE report from Dr. Kopyto that concludes otherwise.
31At the end of the day, it is the applicant who carries the burden of showing that her injuries fall outside of MIG. While the applicant has provided evidence confirming she has pre-existing conditions, she has not provided compelling evidence to show that these conditions prevent her from achieving maximal medical recovery.
Conclusion on MIG
32On the basis of the above findings, I therefore find the applicant’s injuries fall within the MIG.
Issue 2: Is the applicant entitled to receive a medical benefit in the amount of $232.00 for chiropractic services, recommended by Dr. DeFazio-Scott in a treatment plan which was denied by the respondent on February 8, 2019?
33As I have found the applicant’s injuries fall within the MIG, and given that the MIG limit has been exhausted, I therefore find the applicant is not entitled to the payment of $232.00 for chiropractic services.
Issue 3: Is the applicant entitled to receive a medical benefit in the amount of $1,397.00 for physiotherapy services, recommended by Kai Rasmussen in a treatment plan which was denied by the respondent on June 13, 2019?
34For the same reason as noted above, I find the applicant is not entitled to the $1,397.00 in physiotherapy services as her injuries fall within the MIG.
Issue 4: Is the applicant entitled to interest for the overdue payment of benefits?
35In view of my findings above, I find the applicant is not entitled to any interest.
FINDING & ORDER
36The applicant is not entitled to the benefits claimed and as such there is no interest owing. The applicant is not entitled to any award.
Released: September 15, 2020
___________________________
Avvy Go
Adjudicator
Footnotes
- See G.K. v. Wawanesa Mutual Insurance Company, 16-004479/AABS dated July 6, 2017, CanLII 46356 (ON LAT) at paras 8-10, and A.P. and Dominion Insurance, 17-001651/AABS, dated January 3, 2018.
- G.K. v. Wawanesa Mutual Insurance Company, 16-004479/AABS dated July 6, 2017, CanLII 46356 (ON LAT) at paras 8-10