Citation: Safarjalani vs. Aviva General Insurance, 2021 ONLAT 19-009131/AABS

Released Date: 01/13/2021

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:

Zafer M Safarjalani

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Mike McChesney, Counsel

HEARD:

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant, Z.M.S., was involved in an automobile accident on December 9, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹

2The respondent, Aviva General Insurance, denied the applicant certain benefits. He applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

PROCEDRUAL ISSUES

3The parties disagree on the issues in dispute. The applicant submits that an Attendant Care Assessment, recommended by NorMed Assessment Centre in a treatment plan (OCF-18) dated September 18, 2018, remains in dispute.

4The respondent submits that the applicant withdrew this issue at the April 7, 2020 case conference and it is not properly in dispute.

5The Case Conference Report and Order of Charles Sinclair, External Counsel, dated July 22, 2020 indicates that the applicant withdrew the issue of the Attendant Care Assessment at the case conference. As such, I find that the issue is not properly before me. A list of the issues in dispute follows.

ISSUES IN DISPUTE

6I am to decide the following issues:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?²

ii. Is the applicant entitled to $1293.80 for a Functional Abilities Evaluation (“FAE”) recommended by NorMed Assessment Centre in a treatment plan dated October 5, 2018?

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

RESULT

7The applicant’s accident-related injuries are predominantly minor as defined in s. 3 of the Schedule. He has not presented compelling evidence of a pre-existing medical condition documented by a health practitioner before the accident that will prevent him from achieving maximal recovery from his minor injuries if he is subject to the MIG.

8The funding available under the MIG has been exhausted. Since I have determined that the applicant’s injuries are predominantly minor, I need not consider whether the disputed treatment plans for physiotherapy services or a FAE are reasonable and necessary as a result of the accident. The benefits are not payable. No interest is owing.

ANALYSIS

Are the applicant’s injuries predominantly minor as defined in the Schedule?

9In order to be eligible for the benefits claimed in this application, the applicant must demonstrate, on a balance of probabilities, that his accident-related injuries are not predominantly minor as defined in s. 3 of the Schedule. A “minor injury” is defined 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.”

10Under s. 18(1) of the Schedule, 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 $3,500.00 in accordance with the MIG.

11Section 18(2) of the Schedule provides that the MIG limit does not apply in respect of an insured person who provides compelling evidence that he has a pre-existing medical condition documented by a health practitioner before the accident that will him from achieving maximal recovery from his minor injuries if he is subject to the MIG.

12The applicant bears the onus of establishing entitlement to treatment outside the MIG on a balance of probabilities.³

13The evidence shows that the applicant sustained minor, soft tissue injuries as a result of the accident. His family doctor, Dr. Nicole Jones, diagnosed muscle strain and rest tremor. The tremor was investigated on May 4, 2018 by Dr. Aparna Gupta, Neurologist. Dr. Gupta determined that the applicant’s tremor was “just coincidental” to the accident and required no treatment.

14Curiously, Dr. Gupta’s report refers to a possible concussion sustained in the accident as reported to her by the applicant, but this is not corroborated elsewhere in the medical evidence before me and the applicant has not referenced a head injury in his submissions. I am unable to conclude on this basis that the applicant sustained a head injury in the accident.

15The only other injuries attributed to the accident in the evidence before me were diagnosed by the applicant’s treating chiropractor, Dr. Paul Bruni. Dr. Bruni identified a list of injuries in a January 22, 2018 Disability Certificate (OCF-3) and accompanying Intake Report. The injuries included radiculopathy and a depressive episode. I give little weight to these diagnoses. It is outside the scope of practice of a chiropractor to diagnose a depressive episode - a psychological condition. While Dr. Jones did note on December 15, 2017 that she “offered [social worker] for trauma psychotherapy [as needed]” in response to the applicant’s complaint that he was “still a little shaken up” within a week of the accident, there is no diagnosis of a psychological condition nor evidence that the applicant received treatment for any accident-related psychological concerns. In addition, the evidence from Dr. Jones and Dr. Gupta is inconclusive as to whether the applicant suffered from radiculopathy. There is reference in Dr. Jones’s notes to pain in the applicant’s right arm and weakness with gripping which could be consistent with a pinched nerve, but the subsequent neurology referral revealed no neuropathy as a result of the accident.

Pre-existing medical conditions do not remove the applicant from the MIG

16The applicant has failed to discharge his onus of establishing, on a balance of probabilities, that he is entitled to treatment outside the MIG on account of his pre-existing medical conditions. The applicant has presented evidence from his family doctor documenting pre-accident complaints of painful arthritic changes to his right knee and degenerative disc narrowing in his lower cervical spine. However, he has not presented compelling evidence from a health practitioner or made submissions to explain how these conditions prevent him from achieving maximal recovery from his minor, accident-related injuries within the confines of the MIG. The test in s. 18(2) of the Schedule is therefore not met.

The disputed medical benefits

17The Explanation of Benefits (“EOB”) denying the treatment plan for physiotherapy, sent by the respondent on February 18, 2018, indicated that the applicant had $2,200.00 remaining under the MIG funding limit. The plan exceeded that limit and was denied on this basis. The EOB denying the treatment plan for a FAE, sent by the respondent on October 31, 2018, indicated that the funding available to the applicant under the MIG had been exhausted, and that there was insufficient medical documentation to otherwise remove the applicant from the MIG. The assessment was denied on this basis.

18I find that the $3,500.00 available to the applicant under the Schedule for the treatment of his minor injuries has been exhausted. As a result, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary as a result of the accident. The plans are not payable under the Schedule, and this ends the analysis. Since no benefits are owing, no interest is due.

Sufficiency of the denials

19The applicant submits that the respondent’s denials of the claimed benefits failed to meet the notice requirements set out in s. 38 of the Schedule. He submits that the reasons the respondent provided were not valid medical reasons, and that the respondent failed to properly consider the medical records of Dr. Jones.

20I find that the reasons the respondent provided for denying both disputed treatment plans satisfy the requirement in s. 38(8) of the Schedule that the insurer provide “the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary” [emphasis added].

21Citing the MIG is an acceptable reason for denying a treatment plan under s. 38. As I have found, the pre-existing medical conditions documented in the records of Dr. Jones do not warrant the applicant’s removal from the MIG. Again, simply presenting evidence of a pre-existing medical condition is not enough to satisfy the test for removal from the MIG under s. 18(2) of the Schedule – there must be compelling evidence from a health practitioner to show how such a condition will prevent the insured person from achieving maximal recovery if confined to the MIG. In this case, the applicant has not presented such compelling evidence.

CONCLUSION

22The applicant has not established entitlement to the benefits in dispute. His accident-related injuries are predominantly minor as defined in s. 3 of the Schedule and the funding available for medical and rehabilitation benefits under the MIG has been exhausted. Since no benefits are owing, no interest is payable.

23The application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Superintendent’s Guideline No. 01/14.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635.