Released: February 26, 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:
Marcia Deveaux
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR: Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant: Kathryn McRae Hill, Counsel
For the Respondent: Kathleen Mertes, Counsel
HEARD: By way of written submissions
OVERVIEW
1The applicant, Marcia Deveaux, was involved in an automobile accident on June 20, 2017 when a vehicle side-swiped the vehicle she was driving and pushed it into a tree while she was exiting a plaza parking lot. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).1
2The respondent, Aviva General Insurance, determined that the applicant’s injuries were predominantly minor and subject to treatment within the Minor Injury Guideline.2 When the applicant sought benefits beyond the $3,500.00 MIG limit, the respondent denied those benefits. The applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
3I am to decide the following issues:
a. Did the applicant sustain predominantly minor injuries as defined under the Schedule? If not, then:
b. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,502.56 for physical therapy/chiropractic treatment recommended by Health Max Physio – Scarborough, in a treatment plan (OCF-18) submitted on May 30, 2018, and denied on June 12, 2018?
c. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,200.00 for a chronic pain assessment, recommended by Novo Medical Services, in a treatment plan (OCF-18) submitted on April 5, 2019, and denied on April 10, 2019?
d. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has not met her onus of establishing that her accident-related injuries were more than minor, soft tissue injuries and their clinically associated consequences. She is subject to the $3,500.00 funding limit for treatment in accordance with the Minor Injury Guideline.
5Because I have determined that the applicant is subject to treatment within the Minor Injury Guideline, I don’t need to consider whether the disputed Treatment and Assessment Plans (OCF-18s) are reasonable and necessary as a result of the accident. The available funding has been exhausted.
6Because no benefits are owing, no interest is payable. The application is dismissed.
ANALYSIS
7To be eligible for the benefits claimed in this application, the applicant must demonstrate that her accident-related injuries are not predominantly minor. Section 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.”3 If I determine that the applicant’s injuries are predominantly minor injuries, her treatment will be subject to the $3,500.00 funding limit for medical and rehabilitation benefits pursuant to s. 18 of the Schedule.
8The applicant bears the onus of establishing that her injuries fall outside the treatment limit in the MIG.4
9The applicant submits that her injuries exceed the definition of a minor injury under the Schedule. She submits that she sustained a concussion in the accident, and that she suffers from chronic pain. These injuries fall outside the definition of a minor injury.
10The applicant tendered the clinical notes and records of Dr. Nilanjana Datta in support of her position. On June 21, 2017, the day after the accident, the applicant visited Dr. Datta. She reported that she had hit her head on the window of her vehicle in the accident, but that she did not lose consciousness. She reported pain in the left side of her neck, left shoulder, and back.
11Dr. Datta’s examination of the applicant’s neck showed no swelling or deformity. and full active range of motion. The applicant also had full active range of motion in her left shoulder and showed no signs of nerve impingement. The applicant had tenderness along her whole spine, but full active range of motion. Dr. Datta diagnosed the applicant with a “soft tissue injury” and recommended physiotherapy.
12On July 26, 2017, the applicant reported continuing shoulder, neck and back pain to Dr. Datta and requested a referral for continued physiotherapy.
13On January 19, 2018, the applicant visited Dr. Datta with complaints of persistent headaches for the preceding six months. Dr. Datta’s neurological examination was normal. She observed voluntary movement of the patella in the applicant’s left knee and referred the applicant for a consultation with an orthopedic surgeon.
14The applicant was seen by Dr. Robert Luba, orthopedic surgeon, on March 22, 2018. In his report, Dr. Luba notes that the applicant had left knee pain for seven- or eight-years following knee replacement surgery at a young age. He also notes that the applicant was unable to tell him the cause of her knee injury. The note makes no mention of the accident.
15On March 14, 2018, the applicant visited Dr. Datta again and was provisionally diagnosed with possible spinal stenosis after reports of back pain with migraines. Dr. Datta made no mention of the accident.
16On August 22, 2019, the applicant was assessed by Dr. Tejadin Getahun, orthopedic surgeon. Dr. Getahun’s opinion was that the applicant satisfied two of the criteria set out in the AMA Guides (4th edition) for chronic pain - duration of symptoms and dysfunction – and that she met the threshold for a presumptive diagnosis of chronic pain. He recommended that she undergo a multidisciplinary chronic pain program.
17On November 14, 2019, the applicant was assessed by Dr. Anjenika Alechina, chiropractor. Dr. Alechina diagnosed the applicant with post-concussion syndrome, noting a mild traumatic brain injury from the accident. She based her conclusion on the presence of three clinical signs of concussion in the applicant: confused and altered consciousness/mental state, headache, and nausea. Dr. Alechina recommended post-concussion treatment.
18The respondent submits that the applicant’s diagnosis of chronic pain should be given no weight because Dr. Getahun is based on the outdated 4th edition of the AMA Guides. Under the more recent 6th edition, a person needs to meet at least three criteria for a presumptive diagnosis of chronic pain syndrome. Also, Dr. Getahun did not have access to the applicant’s medical file when completing his assessment, and he appears to have ignored the records linking the applicant’s left knee pain to her pre-existing soft tissue condition.
19The respondent submits that the applicant was prescribed Naproxen to treat her migraines in January of 2018 but never took the medication. It submits that the opinion of Dr. Alechina should be given no weight because it is outside the scope of practice for a chiropractor to diagnose a mild traumatic brain injury or post-concussion syndrome.
20I find that the applicant sustained minor, soft tissue injuries in the accident. The symptoms and findings documented by Dr. Datta are consistent with her diagnosis of a soft tissue injury. Her treatment recommendations align with her diagnosis. Dr. Datta does not mention the accident in her clinical notes and records after July 2017.
21I find that the applicant’s knee pain is unrelated to the accident. It is clear from Dr. Luba’s report that the applicant’s knee condition significantly pre-dated the accident. Dr. Luba notes that the applicant could not identify the source of the injury to her knee. To the extent that Dr. Getahun’s assessment considered the applicant’s knee pain, his conclusion that the applicant’s impairment was accident-related is not persuasive.
22Dr. Getahun offers minimal analysis for his conclusion that the applicant suffers from chronic pain. I agree with the respondent’s submission that he applied outdated diagnostic criteria in his assessment. His findings about the applicant’s dysfunction are not supported elsewhere in the record.
23Dr. Alechina is not qualified to diagnose brain injuries. Nowhere in the applicant’s medical records is there reference to her sustaining a mild traumatic brain injury, or concussion, in the accident. Dr. Datta notes that the applicant did not lose consciousness in the accident. Dr. Alechina’s finding that the applicant suffered confused or altered consciousness or mental state is not corroborated elsewhere in the evidence. It is also unclear what basis Dr. Alechina has for this, or any of her conclusions about the applicant’s post-accident symptomatology, because she notes in her report that she had no medical records available for her review.
24For these reasons, I am unable to assign weight to the opinions of Dr. Getahun and Dr. Alechina. I find that the applicant has fallen far short of meeting her evidentiary burden. There is no basis for me to conclude that the applicant suffered more than minor, soft tissue injuries and their clinically associated consequences as a result of the accident. Her treatment is therefore subject to the Minor Injury Guideline, and to the $3,500.00 funding limit for medical and rehabilitation benefits. Based on the respondent’s denials, which cite the Minor Injury Guideline as the reason for denying funding, I find that the $3,500.00 has been exhausted.
25Because I have concluded that the funding available for the treatment of the applicant’s injuries has been exhausted, I do not need to consider whether the individual treatment plans in dispute are reasonable and necessary as a result of the accident under s. 15 of the Schedule. The plans are not payable.
26The applicant submits that the respondent failed to comply with the notice requirement in s. 38 of the Schedule. She submits that citing the Minor Injury Guideline is not an adequate reason for denying a treatment plan. Section 38 requires that an insurer provide “the medical reasons and all of the other reasons” for denying funding for a benefit within 10 business days of receiving a treatment plan. It is settled in the jurisprudence that citing the Minor Injury Guideline is a sufficient reason for denying payment.
CONCLUSION
27The applicant has not met her onus of establishing entitlement to the benefits claimed in this application. No benefits are payable, and no interest is owing. The application is dismissed.
Date of Issue: February 26, 2021
________________________
Theresa McGee
Vice-Chair
Footnotes
- O. Reg. 34/10.
- Superintendent’s Guideline No. 01/14.
- Schedule, s. 3(1).
- Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.).