Released Date: 09/23/2020
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:
I.D. Applicant
and
Aviva Insurance Canada Respondent
DECISION
VICE CHAIR: Eleanor White
APPEARANCES:
Counsel for the Applicant: Netta Untershats, Counsel
For the Respondent: Sjawal Bhutta, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant [I.D] was injured while driving, in an automobile accident on December 5, 2015, and sought benefits from the respondent, Aviva Insurance Canada (Aviva), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was accompanied by her young son, properly secured in a booster seat in the back seat.
2The applicant applied for medical benefits and costs of examinations that were denied by Aviva on the grounds that [the Applicant] was placed into the Minor Injury Guideline (MIG) and that the treatment and assessment plans were not reasonable and necessary. [I.D] disagreed with Aviva’s decision and submitted an Application to the Licence Appeal Tribunal-Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided as per the case conference order of Adjudicator Manigat, dated July 18, 2019, but released on October 11, 2019:
i. Are the applicant’s injuries considered predominantly minor injuries as defined in s. 3 (1) of the Schedule, and therefore subject to treatment within the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a Neurological Assessment, recommended by Toronto Health Care Clinic Inc. in a treatment plan submitted December 20, 2016, and denied by the respondent on February 13, 2017?
iii. Is the applicant entitled to receive a rehabilitation benefit in the amount of $3,335.98 for Psychological Treatment, recommended by Toronto Health Care Clinic Inc. in a treatment plan submitted March 2, 2017, and denied by the respondent on March 14, 2017?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find, based on the evidence submitted, the applicant’s injuries are predominantly minor, and that the applicant has not met her onus of providing evidence that would persuade me to exclude her from the policy limits of the MIG.
5As I do not find her to be excluded from the MIG but have not been apprised of any available monies under that financial limitation, I have not considered whether the treatment plans in dispute are reasonable and necessary, and thus no analysis of each treatment plan is presented, except in the analysis of the applicability of the MIG in this matter.
6As there are no treatment plans deemed payable, there is no interest to be applied to any denied or delayed payment.
ANALYSIS
Applicability of the Minor Injury Guideline
7The policy limits for predominantly minor injuries, as defined in s. 3 (1) of the Schedule, provide a framework for treatment as medical and/or rehabilitation benefits for an amount, not in excess of $3,500.00, pursuant to s. 18 (1) of same. An insured person may be excluded from the MIG, following the exhaustion of funds in one or more of the following mechanisms; the first being that it’s not a predominantly “minor injury” as defined in the Schedule.
8The applicant [I.D] bears the onus to prove, on a balance of probabilities, that her injuries cannot be treated under the confines of the MIG.1 This is the second way to escape the MIG. To access additional benefits, [I.D] must provide, as stated in subsection (2), compelling evidence that she 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 accident-related injuries” if her care is limited to that authorized under the MIG.
9Another (third) manner of gaining exclusion from the MIG involves proving the existence of psychological injury due to the accident. The Schedule is silent on the issue of psychological injuries resulting from an accident, however it is generally accepted based on caselaw that an applicant may be excluded from the MIG based on compelling evidence of a diagnosable (DSM-5) psychological condition, allowing further medical/rehabilitation benefits, through submitted treatment plans, if deemed reasonable and necessary.
10Both parties agree that the accident-related injuries, as reported in the OCF-3, dated January 8, 2016, included whiplash (WAD 2), headache – post traumatic, sprain and strain of the thoracic spine and behaviour – symptoms and signs involving emotional state; clearly injuries that fall under the description of ‘predominantly minor’, pursuant to s. 3 (1).
1. Pre-existing condition
11[I.D] states in paragraph [20] of her submissions that she should be removed from the MIG as she has pre-existing conditions of neck injury and cervicogenic headaches, relying on Clinical Notes and Records (CNR) from her medical doctor(s) in June 2015 at Tab 1 of submissions.
12There are few medical entries of note in the submissions but at Tab 1, I find two clinical notes from Dr. Mari Marinasyan, the first from March 5, 2014, chronicling low iron, requiring bloodwork, but no other relevant notations. On June 24, 2015, the doctor notes the applicant’s desire to get pregnant, tiredness, headaches, “has had neck issues before” (no neck injury was mentioned) and all negative exam results with the doctor raising a query regarding possible cervicogenic headaches. This is the entire clinical picture provided to document pre-accident conditions.
13The respondent also refers to the few medical notes from the pre-accident records and adds that the accident itself was minor with respect to damage to the vehicle. Although the applicant did not make any comment regarding the s. 44 Insurer’s Examinations (IEs) reported, the respondent refers to the IE report of Dr. Paul Tepperman, GP, in consideration of applicability of the MIG, dated March 24, 2016, in which he states after examination and document review that the injuries are uncomplicated soft tissue injuries and can be treated within the MIG. The respondent maintains its position that the applicant should be treated within the MIG and find no pre-existing condition to allow exclusion from the MIG.
14I find that there is insufficient compelling evidence of a pre-existing condition and perhaps even an error in the reading of the pre-accident CNR; as there was no report of a prior neck injury, just ‘neck issues’ and headaches, not diagnosed, but only a query regarding etiology. The applicant has not met her onus of providing compelling evidence of a pre-existing condition, which would allow her to be excluded from the limitations of the MIG.
2. Psychological Impairment
15[I.D]’s injuries in her OCF-3 on January 8, 2016, one month after the accident, included the (requisite) coded language of “Behaviour – signs and symptoms involving emotional state.” This was accompanied by the other 3 descriptors in Part 5 of the OCF-3; Injury Sequelae and Information, which were “WAD 2, headache (post-traumatic) and thoracic sprain/strain”. Under Part 7 “Further Investigations or Consultations”, Dr. Minnella, Chiropractor, recommends an attendant care assessment and includes in the reasons the patient’s report of nervousness and anxiety with sleep difficulties. This led eventually to a psychological report inclusive of the pre-screening of Helen Ilios, MA, and Dr. Andrew Shaul, which recommended psychological treatment, submitted March 2, 2017.2
16Ms. Ilios administered 3 standard tests; BDI-II, (minimal level of depression), BAI (testing revealed a mild level of anxiety) and an SCL-90-R which resulted in in the conclusion that the “objective testing showed minimal and mild levels of emotional distress, but her subjective reporting provided differing information” including some emotional distress and discomfort with driving.
17The respondent relied upon a s.44 IE conducted by Dr. Paul Duhamel,3 neuropsychologist, on April 19, 2017, who administered several tests during his assessment of [I.D] and found no clinically significant results. Dr. Duhamel administered the following: Tests of Attention, Concentration and Memory, Test of Pre-morbid Functioning (T)PF), The Wide-Raange Achievement Test 4th edition, Pain-symptom Ratings, Millon Clinical Multiaxial Inventory and the Brief Symptom Inventory. In response to the questions posed, he reported the following: that [I.D] had developed “no mental disorder” as a result of the accident and that any emotional distress had not developed until 6 months after the accident. Dr. Duhamel also concluded from the test results that [I.D] “did not endorse any significant post-traumatic symptomatology on standardized and norm-referenced measure of mood and adjustment”.
18[I.D] led no evidence regarding the reasonableness or necessity of the psychological treatment plan, nor did she speak to the psychological injuries sustained because of the accident and how any impairment would support the exclusion from the MIG.
19I am not persuaded, on a balance of probabilities, that the applicant suffers from a psychological impairment, as a result of the accident, that justifies treatment beyond the MIG.
3. Chronic Pain
20The caselaw arising from the Tribunal has been supportive of an evolving understanding of chronic pain. I am persuaded that the Tribunal is moving towards a more holistic and comprehensive view of the effect of persistent pain on the life of an accident victim. In this matter, headache and neck pain, both common issues arising from whiplash injuries, appear to be the only symptoms that may be part of a chronic pain query. Documented chronic pain issues can often lead to the exclusion of an insured and injured person from the MIG.
21[I.D] raises the issue of chronic pain, I believe incorrectly, when she introduces the disputed issue of a psychological treatment plan as a chronic pain assessment4, a fact I cannot verify in reading through the treatment plan or the psychological report. In fact, in reviewing the report, the wording is very clear on page 11, that the goal of the treatment that “the 14 counselling sessions should proceed on alleviating fear and anxiety of driving a vehicle. Dr. Shaul recommends a Driver Rehabilitation program to follow up on the counselling sessions dealing with fear and anxiety associated with driving. There is no mention of this recommendation of care addressing chronic pain.
22[I.D]’s submissions also include reference to chronic post-concussion symptoms, evidently in the family doctor’s reference letter to Dr. Taher Chugh5, who deals with concussions in his practice. In fact, both the clinical note and the letter refer strictly to headaches and upper back, neck and shoulder pain, with no mention of post-concussive syndrome, nor any record of any concussion experienced in the accident. No follow-up notes from Dr. Chugh were presented in the applicant’s submissions.
23I conclude by acknowledging that headaches were likely experienced by [I.D] prior to the accident. I also acknowledge that both headaches and neck pain are often sequelae of a whiplash injury and that her symptoms had not yet resolved; however, there is insufficient evidence led by the applicant to exclude her from the MIG based on chronic pain.
Are the treatment plans and assessments reasonable and necessary?
24On consideration of all submissions, [I.D] been denied the disputed treatment plans based on her injuries being designated as predominantly “minor” injuries. Having found that [I.D]’s injuries are predominantly minor injuries and that she is not entitled to treatment beyond the MIG, I have not analyzed the medical benefits in dispute as to whether they are reasonable and necessary.
Interest
25As no benefits are due, [I.D] is not entitled to interest.
CONCLUSION
26For the reasons above, I find that:
i. [I.D] sustained predominantly minor injuries as a result of the accident and these are treatable within the MIG, and
ii. [I.D] is not entitled to any interest.
27The application is dismissed.
Released: September 23, 2020
__________________________
Eleanor White Vice Chair
Footnotes
- Scarlett v. Belair Insurance, 2015 ONSC 3635
- Submissions of the applicant, Tab 3, Psychological Report of Toronto HealthCare Clinic Inc., page 10
- S. 44 IE Report of Dr. Paul Duhamel, Respondent submissions, Tab 3
- Submissions of the applicant, paragraph [8], page 2
- Dr. Taher Chugh, Enhanced Care Clinic, Applicant submissions, Tab 4.