Citation: C.Q. vs. Aviva Insurance Company, 2020 ONLAT 19-004174/AABS

Released: September 21, 2020

Tribunal File Number: 19-004174/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:

C.Q.

Applicant

and

Aviva Insurance Company

Respondent

DECISION

PANEL:

Stephanie Kepman, Adjudicator

APPEARANCES:

For the Applicant:

Neha Kohli, Paralegal

For the Respondent

Rozlien Brikha, Counsel

HEARD:

By way of written submissions

OVERVIEW

1C.Q. (“the applicant”) was injured in an automobile accident (“the accident”) on September 22, 2016.

2She sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when her claims for benefits were denied by the respondent.

3The respondent denied the applicant’s claims because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant’s position is the opposite.

4If the applicant’s position is correct, then I must address the issue of whether the medical treatments claimed are reasonable and necessary.

5If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

ISSUES

6Did the applicant sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?

7If the applicant’s injuries are not within the MIG, then I must determine the following issues:

i. Is the applicant entitled to a medical benefit in the amount of $989.67 for chiropractic treatment recommended by North Toronto Rehabilitation & Physiotherapy in a treatment plan (OCF-18) submitted on June 1, 2017 and denied on July 17, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $989.67 for chiropractic treatment recommended by North Toronto Rehabilitation & Physiotherapy in a treatment plan (OCF-18) submitted on December 6, 2017 and denied on January 25, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $1,328.10 for chiropractic treatment recommended by North Toronto Rehabilitation & Physiotherapy in a treatment plan (OCF-18) submitted on an unknown date and denied on February 22, 2018?

iv. Is the applicant entitled to a medical benefit in the amount of $1,102.48 for chiropractic treatment recommended by North Toronto Rehabilitation & Physiotherapy in a treatment plan (OCF-18) submitted on June 11, 2018 and denied on July 15, 2018?

v. Is the applicant entitled to a medical benefit in the amount of $1,553.72 for physiotherapy treatment recommended by North Toronto Rehabilitation & Physiotherapy in a treatment plan (OCF-18) submitted on August 9, 2018 and denied on October 1, 2018?

vi. Is the applicant entitled to a medical benefit in the amount of $1,328.10 for chiropractic treatment recommended by North Toronto Rehabilitation & Physiotherapy in a treatment plan (OCF-18) submitted on an unknown date and denied on November 9, 2018?

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

RESULT

8I find that the applicant’s injuries fall within the MIG. It is therefore unnecessary to consider the reasonableness of the treatment plans or the issue of interest.

ANALYSIS

The Minor Injury Guideline

9Section 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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

10The onus is on the applicant to show that her injuries fall outside of the MIG³

Did the applicant sustain predominantly minor physical injuries?

11I find that the evidence establishes that the applicant sustained physical injuries that are defined as a predominantly minor injury.

12The applicant has not denied that her injuries were predominantly minor. However, the applicant argues that she should be removed from the MIG because of her pre-existing condition hinders her ability to recover from her accident-related injuries should she be subjected to the limits of the MIG.

Does the applicant have any pre-existing conditions?

13Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.⁴

14The standard for excluding an impairment on the basis of pre-existing condition is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

15In this case, the applicant claims that her pre-existing condition, specifically connective tissue disease, would prevent her from fully recovering within the confines of the MIG.

16For the following reasons, the applicant has not met the evidentiary requirements of section 18(2) of the Schedule and Scarlett⁵:

a. The applicant was first assessed as having issues with her connective tissue on March 4, 2015 by Dr. Farruk Khan, Endocrinologist. This was approximately 1 year and five months before the applicant’s accident.

Specifically, Dr. Khan states the applicant has “extrathyroidal connective tissue” in a letter address to Dr. Ceta Leung, the applicant’s family doctor. In a follow up letter from Dr. Khan to Dr. Leung dated June 8, 2015, the applicant is described as “doing very well”.

b. The applicant has submitted several pieces of evidence regarding her diagnosis of connective tissues disease, such as a Magnetic Resonance Imaging (‘MRI’) dated June 10, 2016, of her left knee, with the following notes: “There is a small area of bony edema in the inferior patella, a small subarticular bony syst [sic] of the medial tibial plateau and a small knee joint effusion." This was prior to the accident.”

A second MRI was done on the knee on May 31, 2017, approximately eight months after the applicant’s accident.

The MRI noted nearly identical results as to those before the applicant’s accident. These imaging results fail to demonstrate the impact of the applicant’s pre-existing condition in terms of her recovery within the MIG.

c. Any official diagnosis of the applicant’s connective tissue only appears after the applicant’s accident.

Dr. Leung noted applicant’s connective tissue disease only on October 23, 2017. This was over a year after the accident.

There is no further mention in Dr. Leung’s clinical notes and records (‘CNRs’) regarding this diagnosis or the impact on the applicant’s recovery, specifically within the MIG.

d. The applicant has submitted several treatment plans to the respondent, including those in dispute. The applicant did not mention a pre-existing medical condition in any of her documentation, nor did her treating doctors. The applicant’s treating doctors also fail to mention the applicant’s pre-existing condition in terms of her limits within the MIG.

e. The respondent requested Dr. Charanjit Sandhu, Occupational Medicine Physician, write a physical assessment addendum report due to the applicant submitting new CNRs from Dr. Leung, dated April 2019 to November 2019.

Dr. Sandhu determined in his report that there was no objective evidence to change his conclusion of that of his previous assessment, that the applicant’s accident-related injuries are myofascial sprains to her cervical spine, lumbar spine, left knee and left ankle.

17For the reasons outlined above, I find that:

i. The applicant has not established that she has a pre-existing medical condition that prevents maximal recovery under the MIG. Accordingly, she is not entitled to the treatment plans claimed in this application. Her application is dismissed.

Released: September 21, 2020

___________________________

Stephanie Kepman

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24
4. 4Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
5. 5Scarlett v. Belair, 2015 ONSC 3635